People v. Irons

2021 IL App (4th) 190276-U

• Court: Appellate Court of Illinois
• Decided: January 4, 2021
• Docket: 4-19-0276
• Status: Unpublished

Opinion

NOTICE Rule 23 filed January 4, 2021 This order was filed under Supreme Court Rule 23 and 2021 IL App (4th) 190276-U Modified upon denial of may not be cited as precedent Rehearing February 4, 2021 by any party except in the NO. 4-19-0276 limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County JEREMY A.L. IRONS, ) No. 15CF13 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Presiding Justice Knecht and Justice DeArmond concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err by dismissing defendant’s postconviction petition at the second stage of the postconviction proceedings.

¶2 In June 2018, defendant, Jeremy A.L. Irons, filed a petition under the Post-

Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq. (West 2018)), raising

numerous claims he was denied both his rights to due process and effective assistance of counsel.

The Champaign County circuit court advanced defendant’s petition to the second stage of the

proceedings and appointed defendant counsel. Postconviction counsel filed an amended petition

asserting (1) the court erred by imposing consecutive sentences, (2) defendant was denied a fair

and impartial sentencing hearing because the court considered incompetent evidence, and

(3) defendant received ineffective assistance of trial and appellate counsel. The State filed a

motion to dismiss defendant’s amended postconviction petition. In an April 2019 written order, the court granted the State’s motion to dismiss.

¶3 Defendant appeals, asserting (1)(a) the circuit court erred by granting the State’s

motion to dismiss his amended postconviction petition because he made a substantial showing of

ineffective assistance of counsel based on counsel’s advice regarding the possibility of

discretionary consecutive sentences or, (b) in the alternative, he was denied reasonable assistance

of postconviction counsel because counsel failed to attach defendant’s own affidavit to the

amended postconviction petition and (2) the court violated his procedural due process rights by

granting the State’s motion to dismiss on bases not raised in the State’s motion to dismiss. We

affirm.

¶4 I. BACKGROUND

¶5 In January 2015, the State charged defendant with aggravated domestic battery

(720 ILCS 5/12-3.3 (West 2014)) and intimidation (720 ILCS 5/12-6(a)(1) (West 2014)). Later,

the State charged defendant with two counts of domestic battery (720 ILCS 5/12-3.2(a)(2) (West

2014)). All four charges related to defendant’s actions against Sada Hoskins on December 31,

2014, and the early morning hours of January 1, 2015. The charging documents did not mention

the possibility of discretionary consecutive sentences. The circuit court also did not mention the

possibility of discretionary consecutive sentencing at defendant’s arraignment. In March 2015,

the court held defendant’s jury trial. At the conclusion of the trial, the jury found defendant

guilty of aggravated domestic battery, intimidation, and domestic battery.

¶6 At defendant’s April 2015 sentencing hearing, the State asked the circuit court to

sentence defendant to 14 years on the aggravated domestic battery count and impose a

consecutive sentence on the intimidation count. Defense counsel asked for an aggregate prison

term of three years. The court sentenced defendant to consecutive prison terms of 14 years for

-2- aggravated domestic battery and 6 years for intimidation (domestic battery merged with the

aggravated domestic battery count). In giving its sentence, the court explained no statutory

mitigating factors applied to defendant, but it did find defendant’s age, 27, was a mitigating

factor. In aggravation, the court noted defendant’s prior criminal history and deterrence. The

court stated, “The history, character and condition of this Defendant indicates that he is an

incredibly violent individual with women and he maintains control” and “is the ultimate

definition of what a domestic batterer is.”

¶7 Defendant appealed and argued (1) he was deprived of his right to a fair trial

because the circuit court allowed the jury to hear excessive other-crimes evidence; (2) his

sentence was excessive in light of his youth, criminal background, and lack of serious injury to

Hoskins; and (3) his assessments should be reduced from $553 to $351. This court affirmed

defendant’s convictions and sentences but remanded the cause for the circuit court to reduce

defendant’s outstanding assessments from $553 to $351. People v. Irons, 2017 IL App (4th)

150295, ¶ 43, 80 N.E.3d 134. As to sentencing, this court rejected defendant’s excessive

sentence argument, finding the court did not err in sentencing defendant. Irons, 2017 IL App

(4th) 150295, ¶ 36. Defendant filed a petition for leave to appeal to the supreme court, which

was denied. People v. Irons, No. 122926 (Ill. Jan. 18, 2018) (supervisory order).

¶8 In June 2018, defendant filed pro se his postconviction petition, raising numerous

issues about his sentences and claims of ineffective assistance of counsel. To his pro se petition,

defendant attached the following: (1) the original police report by the Illinois State Police in this

case, (2) the waiver of his preliminary hearing, and (3) defendant’s own affidavit. In his

affidavit, defendant stated, in pertinent part, the following:

“That at my arraignment the court informed me that I could be sentenced

-3- from 3 to 7 years for the offense of Aggravated Domestic Battery, that I could be

sentenced from 2 to 10 years for the offense of intimidation, and was never

informed by the court, nor did the State ever give notice that it intended to seek an

extended-term sentence, or consecutive sentencing against me until sentencing.

During plea negotiations I was never informed by the State or my attorney that if

found guilty the State would seek an extended-term sentence, or consecutive

sentencing. The State and my attorney entered plea negotiations in which the

State offered a 5 year plea deal. I rejected this plea offer, because there was only

a 2 year difference from the maximum sentence I was told I could receive for

Aggravated Domestic Battery to be served at 85%, and the close equivalent of a

10 year sentence for the offense of intimidation to be served at 50%. If I had been

told that the State could, and would be able to seek an extended-term sentence of

up to 14 years for the Aggravated Domestic Battery charge, and that a 10 year

sentence for intimidation could be ran consecutively, and that the State would be

seeking such. I would have excepted [sic] the 5 year plea offer in light of the

percentage of chance of acquittal.”

The circuit court moved defendant’s petition to the second stage of the proceedings and

appointed defendant counsel.

¶9 Postconviction counsel filed an amended petition challenging the imposition of

discretionary consecutive sentences on defendant, the fairness and impartiality of defendant’s

sentencing hearing, and the effectiveness of trial and appellate counsel. Specifically, the

amended petition asserted trial counsel was ineffective for failing to (1) file a motion to

reconsider sentence, (2) request a statement of rationale for discretionary consecutive sentencing,

-4- (3) object to the court taking judicial notice of a verified complaint in another case, and

(4) advise defendant about the possibility of discretionary consecutive sentences. Defendant

then argued appellate counsel was ineffective for failing to raise the ineffective assistance of trial

counsel issues related to discretionary consecutive sentencing and the claim the court considered

incompetent evidence at the sentencing hearing. Defense counsel also explained he did not raise

the other issues contained in defendant’s pro se postconviction petition because they were

frivolous or patently without merit. Defense counsel attached numerous documents to the

amended petition but did not attach defendant’s affidavit that was attached to his pro se petition.

One of the attached documents was a January 13, 2015, letter from defense counsel addressing

the State’s five-year plea offer. In the letter, trial counsel explained defendant was extended-

term eligible on both counts and must serve the aggravated domestic battery sentence at 85%.

The letter also memorialized the plea agreement and noted defendant did not authorize counsel to

negotiate with the State. Additionally, defense counsel filed a certificate under Illinois Supreme

Court Rule 651(c) (eff. July 1, 2017).

¶ 10 In March 2019, the State filed a motion to dismiss defendant’s amended

postconviction petition, addressing defendant’s claims in his amended postconviction petition. It

did not address any claim related to the preliminary hearing. Defendant filed a reply brief

responding to the State’s motion to dismiss. On April 16, 2019, the circuit court entered a

written order, granting the State’s motion to dismiss. The court noted most of defendant’s

petition addressed sentencing errors and the appellate court found on review the court did not err

in sentencing defendant. Thus, the court concluded the doctrine of res judicata dictated

defendant could not raise those issues again. It then found, “[t]he other issue, waiver of

preliminary hearing is properly addressed in the State’s response.”

-5- ¶ 11 On May 3, 2019, defendant filed a timely notice of appeal from the circuit court’s

April 16, 2019, judgment in compliance with Illinois Supreme Court Rule 606 (eff. July 1,

2017). Accordingly, this court has jurisdiction of defendant’s appeal from the dismissal of his

amended postconviction petition under Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).

¶ 12 II. ANALYSIS

¶ 13 The Postconviction Act provides a remedy for defendants who have suffered a

substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471,

861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the Postconviction Act

sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.

¶ 14 At the first stage, the circuit court independently reviews the defendant’s

postconviction petition and determines whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). If it finds the petition is frivolous or patently

without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2018). If the

court does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court

appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense

counsel may amend the defendant’s petition to ensure his or her contentions are adequately

presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the State

may file a motion to dismiss the defendant’s petition or an answer to it. Pendleton, 223 Ill. 2d at

472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court denies such a

motion, the petition advances to the third stage, wherein the court holds a hearing at which the

defendant may present evidence in support of his or her petition. Pendleton, 223 Ill. 2d at 472-

73, 861 N.E.2d at 1008. In this case, the State did file a motion to dismiss, and the court granted

that motion.

-6- ¶ 15 With the second stage of the postconviction proceedings, the circuit court is

concerned only with determining whether the petition’s allegations sufficiently show a

constitutional infirmity that would necessitate relief under the Postconviction Act. People v.

Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, “the defendant

bears the burden of making a substantial showing of a constitutional violation” and “all well-

pleaded facts that are not positively rebutted by the trial record are to be taken as true.”

Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. “[T]he ‘substantial showing’ of a

constitutional violation that must be made at the second stage [citation] is a measure of the legal

sufficiency of the petition’s well-pled allegations of a constitutional violation, which if proven at

an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original.) People v.

Domagala, 2013 IL 113688, ¶ 35, 987 N.E.2d 767. The court reviews the petition’s factual

sufficiency as well as its legal sufficiency considering the trial court record and applicable law.

People v. Alberts, 383 Ill. App. 3d 374, 377, 890 N.E.2d 1208, 1212 (2008). However, at a

dismissal hearing, the court is prohibited from engaging in any fact-finding. Coleman, 183 Ill.

2d at 380-81, 701 N.E.2d at 1071. Thus, the dismissal of a postconviction petition at the second

stage is warranted only when the allegations in the petition, liberally construed in light of the

trial record, fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d

at 382, 701 N.E.2d at 1072. We review de novo the circuit court’s dismissal of a postconviction

petition at the second stage. Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008.

¶ 16 A. Effective Assistance of Trial Counsel

¶ 17 Defendant first asserts he made a substantial showing of ineffective assistance of

counsel arising from trial counsel’s failure to advise him about the possibility of discretionary

consecutive sentencing. The State contends defendant failed to make a substantial showing of

-7- his claim.

¶ 18 Our supreme court has “recognized a sixth amendment right to effective

assistance of counsel during plea negotiations.” People v. Hale, 2013 IL 113140, ¶ 16, 996

N.E.2d 607. Specifically, “ ‘[a] criminal defendant has the constitutional right to be reasonably

informed with respect to the direct consequences of accepting or rejecting a plea offer.’ ”

(Emphasis in original.) Hale, 2013 IL 113140, ¶ 16 (quoting People v. Curry, 178 Ill. 2d 509,

528, 687 N.E.2d 877, 887 (1997)). That right “extends to the decision to reject a plea offer, even

if the defendant subsequently receives a fair trial.” Hale, 2013 IL 113140, ¶ 16.

¶ 19 This court analyzes ineffective assistance of counsel claims under the standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708

N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a defendant must prove (1) his

counsel’s performance failed to meet an objective standard of competence and (2) counsel’s

deficient performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708

N.E.2d at 1163. To satisfy the deficiency prong of Strickland, the defendant must demonstrate

counsel made errors so serious and counsel’s performance was so deficient that counsel was not

functioning as “counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI). Evans,

186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must overcome the strong

presumption the challenged action or inaction could have been the product of sound trial

strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the

defendant must prove a reasonable probability exists that, but for counsel’s unprofessional errors,

the proceeding’s result would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-

64. The Strickland Court noted a case should be decided on the ground of lack of sufficient

prejudice rather than counsel’s constitutionally deficient representation if it is easier to do so.

-8- Strickland, 466 U.S. at 697.

¶ 20 Regarding prejudice in the context of a plea offer, the United States Supreme

Court has held a defendant must show a reasonable probability of the following: (1) he or she

would have accepted the plea offer but for counsel’s deficient advice, (2) the plea would have

been entered without the State canceling it, (3) the circuit court would have accepted the plea

bargain, and (4) “the end result of the criminal process would have been more favorable by

reason of a plea to a lesser charge or a sentence of less prison time.” Missouri v. Frye, 566 U.S.

134, 147 (2012); see also Lafler v. Cooper, 566 U.S. 156, 164 (2012). In Hale, 2013 IL 113140,

¶ 20, our supreme court found Frye and Cooper “control and the factors set forth in those cases

must now be relied upon in deciding if prejudice has been shown where a plea offer has lapsed or

been rejected because of counsel’s deficient performance.”

¶ 21 Despite Hale being decided in 2013, defendant’s amended postconviction petition

filed in January 2019 only pleaded the first of the four requirements. Paragraph 106 of

defendant’s amended postconviction petition addressed prejudice and stated the following:

“The Defendant was prejudiced by Trial Counsel’s failure to advise him of the

possibility of permissive consecutive sentencing. Had the Defendant been made

aware of this possible sentencing range from five (5) to nineteen (19) years, the

Defendant would have accepted the State’s offer.”

Since defendant only pleaded one of the four elements for establishing prejudice, defendant’s

amended postconviction petition failed to plead prejudice, a legal deficiency. Given the claim’s

legal deficiency, we do not need to address the sufficiency of defendant’s factual support to

determine whether he made a substantial showing of a constitutional violation on this claim.

Accordingly, we find the circuit court’s dismissal of this claim at the second stage of the

-9- proceedings was proper.

¶ 22 B. Reasonable Assistance of Counsel

¶ 23 In the alternative, defendant contends postconviction counsel did not provide

reasonable assistance because counsel failed to attach defendant’s own affidavit that was

attached to his pro se postconviction petition. In his appellant brief, defendant does not raise any

other issues with postconviction counsel’s representation. Since this court did not find the

failure to attach defendant’s affidavit to the amended postconviction petition was the reason his

claim of ineffective assistance of counsel did not make a substantial showing of a constitutional

violation, we decline to address this alternative argument.

¶ 24 Additionally, we note Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018)

provides the following: “Points not argued are forfeited and shall not be raised in the reply brief,

in oral argument, or on petition for rehearing.” Thus, we decline to address defendant’s

reasonable assistance of counsel argument raised for the first time in his petition for rehearing.

¶ 25 C. Due Process

¶ 26 Defendant last asserts his right to procedural due process was violated when the

circuit court granted the State’s motion to dismiss on bases not raised in the State’s motion to

dismiss. In support of his argument, he cites cases where the reviewing court found the circuit

court committed reversible error by dismissing the defendant’s postconviction petition beyond

the 90 days and without the State filing a motion to dismiss. See People v. Starks, 2012 IL App

(2d) 110324, ¶ 24, 975 N.E.2d 71; People v. Greer, 341 Ill. App. 3d 906, 910, 793 N.E.2d 217,

221 (2003). The State contends defendant was afforded due process.

¶ 27 “The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

- 10 - (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). This court has found a violation of

due process when the circuit court has granted the State’s motion to dismiss the defendant’s

postconviction petition two days after the State filed it. People v. Al Momani, 2016 IL App (4th)

150192, ¶ 10, 55 N.E.3d 725. We noted the defendant “was given neither notice nor an

opportunity to be heard.” Al Momani, 2016 IL App (4th) 150192, ¶ 10. Here, the State filed a

motion to dismiss, and defendant filed a reply to the State’s motion. The circuit court’s ruling

was very brief for the number of claims defendant raised in his amended postconviction petition,

and the court did seem to allude to an issue not raised in the amended petition. However, unlike

the defendants in the cases cited by defendant and in Al Momani, defendant was given a

meaningful opportunity to be heard on the State’s motion. While the circuit court appears to

have confused defendant’s original petition and the amended petition at times in its dismissal

order, defendant could have addressed the court’s mistakes in its written dismissal order by filing

a motion to reconsider or appealing the dismissal judgment. As stated, our review is de novo of

the circuit court’s dismissal of defendant’s amended postconviction petition at the second stage

of the proceedings. See Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. With de novo review,

“we may affirm the decision of the circuit court on any grounds substantiated by the record,

regardless of the circuit court’s reasoning.” People v. Demitro, 406 Ill. App. 3d 954, 956, 942

N.E.2d 20, 22 (2010). As such, whatever mistakes the circuit court may have made in granting

the State’s motion to dismiss do not affect our review of the dismissal of defendant’s amended

petition at the second stage of the proceedings. Accordingly, we do not find a due process

violation.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the Champaign County circuit court’s judgment.

- 11 - ¶ 30 Affirmed.

- 12 -