People v. Hemingway

2020 IL App (4th) 180600-U

• Court: Appellate Court of Illinois
• Decided: September 21, 2020
• Docket: 4-18-0600
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180600-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0600 September 21, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County KEVIN E. HEMINGWAY, ) No. 09CF1438 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The trial court did not err by denying defendant’s motion for leave to file a successive postconviction petition.

¶2 In May of 2018, defendant, Kevin E. Hemingway, pro se filed a motion for leave

to file a successive postconviction petition, which the trial court denied. Defendant appeals,

arguing he demonstrated cause and prejudice as required to file a successive postconviction

petition. We affirm.

¶3 I. BACKGROUND

¶4 On August 18, 2009, the State charged defendant with armed robbery with a firearm

(720 ILCS 5/18-2(a)(2) (West 2008)). The cause proceeded to a jury trial.

¶5 At trial, the State adduced the following facts. Terri Herbst was an employee at a McDonald’s restaurant in Champaign where her duties included taking cash deposits from the

restaurant to the bank. Before any cash deposits were removed from the building, the currency was

divided by denomination and “bundled” “[w]ith a rubber band.” At approximately 11 a.m. on

August 17, 2009, Herbst exited the McDonald’s restaurant with that day’s cash deposit, estimated

to be “[b]etween two thousand and three thousand” dollars. As Herbst neared her car, a man

approached her and demanded she “[h]and [him] [the] money.” The man pointed a black,

semi-automatic handgun at Herbst, who refused to give up the money. Eventually, Herbst’s

assailant struck her on the head with the handgun, pushed her down, grabbed the deposit bag, and

fled.

¶6 Soon after the assault, a man wearing clothes matching the description given by

Herbst was spotted near the McDonald’s restaurant entering “a gold car or a gold-colored car.”

The police were provided the car’s license plate number and drove to the address of the car’s owner

a short time later. A few minutes after the police arrived at the address, a gold-colored car also

arrived. Defendant and two others exited the vehicle. Police searched defendant and found in his

possession “four different bundles of currency that were bundled with rubber[ ]bands, in addition

to a small amount of change and some other miscellaneous items.” Two bundles of currency in

defendant’s possession contained one-dollar bills, another bundle contained twenty-dollar bills,

and the fourth bundle contained a mixture of five and ten-dollar bills. The value of the currency

police found in defendant’s possession was approximately $1900. The police searched the

gold-colored car and discovered a black, semi-automatic handgun and a receipt from Sprint that

had been printed at 11:17 a.m. that morning which documented that defendant had paid his $297

cellphone bill in cash.

¶7 Defendant was taken to the Champaign Police Department and questioned.

-2- Although defendant initially stated he was not involved in the robbery, he later gave a recorded

statement in which he confessed to the crime.

¶8 During the State’s case-in-chief, only two witnesses who observed Herbst being

robbed were able to identify defendant as her assailant. The first witness, Jason Townsend, testified

he observed a man “run[ ] up, and he pulled up a bandana, and he had a gun in his hand *** [and

he] grabb[ed] the [money] bag and point[ed] [the gun] at [Herbst].” Townsend clarified the

assailant’s face was not covered the entire time Townsend observed him but that “he pulled up the

bandana” as he approached Herbst. Townsend testified he “g[o]t a chance to look at [the] person’s

face as he was running up towards [Herbst]” and provided an in-court identification of defendant

as the person who assaulted Herbst. Sarah Adamson also identified defendant as Herbst’s assailant.

Adamson testified she was in the drive-thru at McDonald’s when she observed a “young, black

gentleman” enter the McDonald’s parking lot with “a black bandana across his face.” Adamson

watched the man as he “pull[ed] a gun out of his pocket[,] *** approach[ed] [a] woman in the

parking lot[,]” and “started struggling” with the woman. Adamson testified defendant was the man

she observed, explaining that although the assailant had a bandana over his face when Adamson

saw him, defendant “fit[ ] what [she] remember[ed].”

¶9 The jury convicted defendant and the trial court subsequently sentenced him to 38

years in prison. Defendant later filed a motion to reconsider sentence which the trial court granted,

reducing defendant’s sentence to 35 years.

¶ 10 Defendant appealed his sentence, arguing the trial court erred in imposing certain

fines. People v. Hemingway, 2011 IL App (4th) 100701-U, ¶ 4. We remanded for the trial court to

make specified adjustments to the amount of defendant’s fines but otherwise affirmed the court’s

judgment. Id. ¶ 22.

-3- ¶ 11 On August 9, 2012, defendant pro se filed a petition for postconviction relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). In his

postconviction petition, defendant alleged: (1) the video of defendant’s confession, which had

been played at trial, was “the fruit of an illegal arrest”; (2) trial counsel “failed to file a pre-trial

motion to quash arrest and suppress evidence”; (3) “appellate counsel was ineffective for not

raising the argument that trial counsel was ineffective for not filing a pretrial motion to [quash]

arrest and suppress any evidence”; and (4) trial counsel erred by “not putting [defendant’s] alibi

witness on the stand.” On October 22, 2012, the trial court dismissed defendant’s postconviction

petition, finding it “fail[ed] to state the gist of a constitutional claim” and was “frivolous and

patently without merit.”

¶ 12 Defendant appealed the trial court’s dismissal of his postconviction petition. On

appeal, defendant argued “(1) his trial counsel rendered ineffective assistance in the jury trial by

failing to call an alibi witness, Tiffany Steele, and (2) his appellate counsel rendered ineffective

assistance on direct appeal by failing to argue that the sentence was excessive.” People v.

Hemingway, 2014 IL App (4th) 121039, ¶ 1, 14 N.E.3d 1238. We initially rejected both of

defendant’s contentions. See id. ¶ 33. However, at the direction of our supreme court, we later

vacated our judgment and reconsidered defendant’s claims. People v. Hemingway, 2016 IL App

(4th) 121039-UB, ¶ 3. We ultimately remanded defendant’s case for the trial court to conduct

further proceedings on whether trial counsel should have called Tiffany Steele as an alibi witness.

Id. ¶ 4. Regarding defendant’s second claim, we wrote “[t]here is some question of whether the

pro se petition can be reasonably interpreted as raising [an excessive sentence] claim[ ]” and, on

remand, “the appointed postconviction counsel [could] raise that claim more explicitly[ ] in an

amended petition, if he or she sees fit to do so.” Id. ¶ 15.

-4- ¶ 13 On remand, defendant’s appointed postconviction counsel filed an amended

postconviction petition and a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb.

6, 2013). In the amended petition, defendant alleged trial counsel had been ineffective for failing

to call Tiffany Steele as an alibi witness, trial counsel had been ineffective for objecting to a jury

request to review certain evidence, and the trial court had erred in denying the jury’s request to

review certain evidence. The amended petition did not include an allegation that appellate counsel

was ineffective for failing to challenge defendant’s sentence.

¶ 14 The trial court conducted an evidentiary hearing on defendant’s amended

postconviction petition. In support of his claims, defendant testified on his own behalf and

presented the testimony of Tiffany Steele. The State presented testimony from defendant’s trial

counsel. During the State’s examination of defendant’s trial counsel, the following colloquy

occurred:

“Q. When you took over [defendant’s] case, did you have an opportunity to review

all the disclosure materials, police reports and other evidence that was provided to you?

A. Yes.

Q. That included police reports, included audio video recordings of the defendant’s

statement and so on?

Q. Did you have adequate time to go over those items?

A. Yes, I did.

Q. Did you review those items with your client, Mr. Hemingway?

A. Yes.”

At the end of the hearing, the court denied defendant’s postconviction petition.

-5- ¶ 15 Defendant appealed the denial of his postconviction petition, arguing

postconviction counsel acted unreasonably by failing to include in the amended petition a claim

that “(1) trial counsel had rendered ineffective assistance in the jury trial by failing to impeach

Townsend and Adamson with their prior statements to the police that they would be unable to

recognize the robber, and (2) appellate counsel had rendered ineffective assistance on direct appeal

by failing to challenge the 35-year prison sentence as excessive.” People v. Hemingway, No. 4-17-

0011 (2017) (unpublished summary order under Illinois Supreme Court Rule 23(c)). We rejected

both of defendant’s claims, finding postconviction counsel was not obligated to include either

allegation in the amended petition because defendant had failed to include them in his original

petition. Id.

¶ 16 Subsequently, defendant pro se filed a motion for leave to file a successive

postconviction petition in which he asserted two claims relevant to this appeal. Defendant’s first

claim was that trial counsel was ineffective for “failing to impeach State[’]s witnesses Jason

Townsend and Sarah Adamson with their prior statements to detectives.” Defendant alleged there

was both “cause for [his] failure to raise [this] claim[ ] *** in [his] previous [postconviction]

petition” and “prejudice resulting from the failure to bring the claims earlier.” Regarding cause,

defendant argued he had been unable to raise this contention in his original or amended

postconviction petition because he did not “obtain[ ] [the] police reports which contain[ed] [the]

evidence [until] after [his] postconviction [petition] was already filed,” “had no actual knowledge

of the statements contained in the police [report] until [he] received [the] police reports and learned

of [the] violations,” and postconviction counsel “refused to include the claims in the amended

petition.” Defendant included in his motion letters he had sent to the trial court requesting access

to documents relevant to his case. Defendant also included in his motion letters he had received

-6- from his appellate counsel and the appellate court explaining to defendant why they could not

provide him with documents relevant to his case. In one such letter dated January 18, 2012, the

Fourth District appellate court clerk informed defendant that if he wanted access to “discovery

material, witness and police statements, and transcripts of recorded statements,” he would have to

“make [his] request to the police agency directly and/or the Circuit Court Clerk in Champaign

County.” On February 27, 2014, defendant issued a Freedom of Information Act (FOIA) (5 ILCS

140/1 et seq. (West 2012)) request to the City of Champaign for records relating to his case. His

request was granted several days later.

¶ 17 Defendant’s final claim included in his motion, and the only other claim relevant

to this appeal, stated, in its entirety:

“Also[,] postconviction counsel was ineffective, or highly unreasonable and

was not working in the best interest of the defendant, when she failed to raise the

issue of excessive sentencing. She knew of [the] issue[ ] but refused to raise it

[because she was] ineffective, neglectful, and her assistance fell way below a

reasonable level of assistance.”

¶ 18 The trial court later denied defendant’s motion, finding defendant “failed to meet

the cause and prejudice test for leave to file a successive postconviction [petition].”

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues he demonstrated cause and prejudice as required to

file his successive postconviction petition. We review the trial court’s judgment de novo and may

affirm the court’s judgment on “any basis supported by the record if the judgment is correct.”

People v. Green, 2012 IL App (4th) 101034, ¶ 30, 970 N.E.2d 101.

-7- ¶ 22 “The Act provides a procedural mechanism in which a convicted criminal can assert

that there was a substantial denial of his or her rights under the Constitution of the United States

or the State of Illinois or both, in the proceedings that resulted in his or her conviction.” People v.

Gayden, 2020 IL 123505, ¶ 39. A defendant commences a postconviction proceeding under the

Act by filing a petition for relief in the trial court. 725 ILCS 5/122-1(b) (West 2010).

¶ 23 Only a single petition for postconviction relief may be filed under the Act without

leave of court. Id. § 5-122-1(f).

“Leave of court may be granted only if a petitioner demonstrates cause for his or

her failure to bring the claim in his or her initial post-conviction proceedings and

prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner

shows cause by identifying an objective factor that impeded his or her ability to

raise a specific claim during his or her initial post-conviction proceedings; and (2) a

prisoner shows prejudice by demonstrating that the claim not raised during his or

her initial post-conviction proceedings so infected the trial that the resulting

conviction or sentence violated due process.” Id.

Leave of court to file a successive petition should only be granted where a defendant establishes

both prongs of the cause-and-prejudice test. People v. Davis, 2014 IL 115595, ¶ 14, 6 N.E.3d 709.

¶ 24 A. Ineffective Assistance of Trial Counsel

¶ 25 Defendant first argues he established cause and prejudice with respect to his

ineffective assistance of trial counsel claim and, therefore, should be permitted to file a successive

postconviction petition raising that claim. Defendant argues trial counsel provided ineffective

assistance by “fail[ing] to impeach the State’s star witnesses’ identification of [defendant] as the

offender.” In support of his claim, defendant points to the following statements contained in the

-8- police reports he received in response to his FOIA request. In one report, Townsend is reported to

have stated he “didn’t notice if the [black male] had [a] bandana over his face when he first ran by

[Townsend’s] drive[-thru] window” and he “would not be able to identify the suspect.” In another

report, Adamson is reported to have stated “[s]he did not think she could recognize [Herbst’s

assailant] again.” According to defendant, he established cause for his failure to raise this claim in

his first postconviction petition because he was “unaware of the witnesses’ prior statements until

after he obtained [the] police reports on March 13, 2014.” Defendant argues he established

prejudice because “the identification testimony was a crucial piece of the State’s case.”

¶ 26 Contrary to defendant’s assertion, he has not established cause for his failure to

assert this ineffective assistance of trial counsel claim in his initial postconviction petition.

Although defendant claims he was ignorant of the contents of the police reports until March of

2014, the record demonstrates defendant reviewed the police reports before he even went to trial.

During the evidentiary hearing on defendant’s postconviction petition, defendant’s trial counsel

testified she both “review[ed] all the disclosure materials, police reports[,] and other evidence”

that had been provided to her and “review[ed] those items with [defendant.]” (Emphasis added.)

Accordingly, defendant was aware of the statements made by Townsend and Adamson long before

he filed his initial postconviction petition.

¶ 27 Even assuming, arguendo, that defendant was unaware of the statements recorded

in the police reports until after he filed his initial postconviction petition, defendant failed to

explain why he delayed so long to acquire the records. Defendant was informed in January of 2012

that to obtain his police reports, he would have to request them from the Champaign Police

Department, yet defendant inexplicably waited over two years before he issued a FOIA request for

his records from that agency. That defendant did not obtain the police reports until after he filed

-9- his initial postconviction petition is attributable solely to his own inaction and, therefore, does not

qualify as an objective factor that impeded him from raising his claim earlier. See People v. Ortiz,

235 Ill. 2d 319, 329, 919 N.E.2d 941, 947 (2009) (stating an objective factor is “external” to the

defense).

¶ 28 Even if defendant could establish cause, he cannot establish he was prejudiced by

trial counsel’s failure to impeach Adamson and Townsend in light of the overwhelming evidence

against him. At trial, the State established defendant had access to a handgun that matched the

description of the weapon used by the assailant, was in possession of currency organized and

bundled in the same way as the money taken from Herbst and in the amount estimated to have

been taken from Herbst (less the amount defendant spent paying his bill), and confessed to robbing

Herbst. Considering the totality of the evidence against defendant, even if defense counsel had

impeached Adamson and Townsend, we cannot say a reasonable probability exists that defendant

would have been acquitted.

¶ 29 Because defendant failed to establish cause and prejudice necessary to excuse his

failure to include this claim of ineffective assistance of counsel in his first postconviction petition,

the trial court did not err in dismissing his motion to file a successive postconviction petition.

¶ 30 B. Ineffective Assistance of Appellate Counsel

¶ 31 Defendant next argues he established cause and prejudice sufficient to file a

successive postconviction petition asserting that he received ineffective assistance of appellate

counsel. This is a different claim from the one defendant raised in his motion for leave to file a

successive postconviction petition. In his motion, defendant argued postconviction counsel was

unreasonable for failing to argue in his amended postconviction petition that appellate counsel

should have raised an excessive sentence claim in defendant’s first appeal. Because defendant’s

- 10 - motion did not include a claim of ineffective assistance of appellate counsel, he has forfeited

review of this issue. See People v. Jones, 211 Ill. 2d 140, 148, 809 N.E.2d 1233, 1239 (2004)

(matters not raised in postconviction petition may not be argued on appeal). Even if defendant had

included his allegation against postconviction counsel in this appeal, his claim would still be barred

because defendant already raised that issue in his appeal from the trial court’s denial of his

amended postconviction petition. See People v. Blair, 215 Ill. 2d 427, 443, 831 N.E.2d 604, 615

(2005) (“The doctrine of res judicata bars consideration of issues that were previously raised and

decided on direct appeal.”). As noted above, in that case, we found postconviction counsel was not

required to include the excessive sentence claim against appellate counsel in the amended petition

because defendant did not include the claim in his original petition. People v. Hemingway, No. 4-

17-0011 (2017) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

Accordingly, we decline to review defendant’s second contention of error.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the trial court’s judgment.

¶ 34 Affirmed.

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