People v. Jenkins

2016 IL App (1st) 133286, 57 N.E.3d 521

Opinion

2016 IL App (1st) 133286 No. 1-13-3286 June 21, 2016

SECOND DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) Of Cook County. Respondent-Appellee, ) ) No. 98 CR 25095 v. ) ) MARCUS JENKINS, ) The Honorable ) James Michael Obbish, Petitioner-Appellant. ) Judge Presiding.

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 When a postconviction petition leads to resentencing, does a new petition filed after the

resentencing count as an initial postconviction petition, or should courts treat it as a

successive postconviction petition, which a petitioner has no right to file unless he can show

cause and prejudice? We hold that the court should treat the petition as an initial

postconviction petition, which the petitioner has a right to file, and which the trial court

should dismiss only if the petitioner fails to state the gist of a claim for a deprivation of his

constitutional rights. We find that Marcus Jenkins’ postconviction petition states the gist of a No. 1-13-3286

constitutional claim, so we reverse the dismissal of the petition and remand for further

proceedings.

¶2 BACKGROUND

¶3 On August 26, 1998, Marcus Jenkins, then 16 years old and a member of the Gangster

Disciples, walked home from school with Ricky Hamilton, a member of the Milwaukee

Kings, and another boy. On the way home, on a busy street, they encountered David Stopka

of the Spanish Cobras and Omar Negron of the Ashland Vikings, who were at war with

Hamilton’s gang. In the course of the encounter, a stray bullet killed Edna DeLaRosa. Police

arrested Jenkins the next day.

¶4 Jenkins spoke to an assistant State’s Attorney at the police station and signed a

handwritten statement about the shooting. According to the handwritten statement, Hamilton

traded insults with Stopka and Negron. Hamilton then handed Jenkins a gun and told him to

shoot Stopka and Negron. Jenkins “fired the gun at the two guys before they were able to get

guns and come back and shoot at him and Ricky.” All the boys ran from the scene. Jenkins

followed Ricky as they ran through an alley. At the end of the alley he turned and saw

Stopka, about 15 feet away, holding a bat. Jenkins fired the gun and ran off.

¶5 Prosecutors charged Jenkins with first degree murder. A trial held in 2000 ended with a

hung jury. At the retrial, Detective Alfonso Bautista testified that, at the police station the day

after the shooting, Jenkins told Bautista that Jenkins had problems at school with members of

rival gangs. He brought a gun to school on August 26, 1998, and left it outside the school. He

retrieved it before he started to head for home. He handed the gun to Hamilton when

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Hamilton asked for it, but then Hamilton handed it back and told Jenkins to shoot. Jenkins

admitted that he later fired the fatal bullet.

¶6 Negron testified about the gang rivalries and the encounter with Hamilton and Jenkins on

August 26, 1998. When he saw Hamilton holding the gun, he and Stopka ran, and he heard

shots as he ran. He and Stopka saw Hamilton and Jenkins again a few blocks away. Stopka

picked up a bat and Negron held a bottle. Hamilton ran away from Stopka and Negron, and

Stopka chased him wielding the bat. Negron heard more shots.

¶7 The trial record shows that defense counsel did not object to the State’s instructions and

did not offer any additional instructions.

¶8 During deliberations, the jury sent the judge a note to tell the judge that the jury could not

reach a unanimous verdict. The judge told the jurors to continue deliberating. After five

hours of deliberations, the jurors sent a second note with much the same message. The judge

sequestered the jurors overnight. The next day, the jury reached unanimity, finding Jenkins

guilty of first degree murder. The court sentenced Jenkins to 50 years in prison. The appellate

court affirmed the judgment. People v. Jenkins, 333 Ill. App. 3d 534, 542 (2002).

¶9 Jenkins filed a postconviction petition in 2003. The trial court granted the petition and the

State appealed. People v. Jenkins, No. 1-09-1377 (2010) (unpublished order under Supreme

Court Rule 23). In 2009, before the appellate court decided the appeal, Jenkins sought leave

to file a second postconviction petition. The trial court denied Jenkins’ request. The appellate

court affirmed the trial court’s decision to grant the initial postconviction petition. Id. On

March 8, 2012, the proceedings following the appellate court’s remand of the postconviction

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petition filed in 2003 ended with the trial court imposing on Jenkins a sentence reduced to 33

years in prison.

¶ 10 About a year after the court imposed the new sentence, Jenkins filed the postconviction

petition at issue in this appeal. He titled the document “Successive Petition for Post

Conviction Relief” and appended it to a motion for leave to file a successive postconviction

petition. He alleged that his trial counsel provided ineffective assistance by failing to request

a jury instruction on second degree murder. Jenkins supported his petition with a jury

instruction and affidavits from his trial counsel and the attorney who helped Jenkins in the

proceedings on his 2003 postconviction petition.

¶ 11 The postconviction attorney said she found the jury instruction in trial counsel’s file and

she asked trial counsel to explain the handwritten notes on the instruction. The trial attorney

acknowledged that he apparently wrote the notes, which said, “Δ wants 2nd ° MURDER”

and “OBJ.” Trial counsel said in his affidavit that he did not remember the instructions

conference and he did not have access to the trial transcript, but his “best guess *** [was]

that the defense asked that the court instruct the jury as to the *** offense of second degree

murder, and that the court refused this request. This would seem to explain why the defense

objected to this instruction as it appears.” Jenkins also appended to his petition enough of the

trial transcript to show that trial counsel did not object to any of the State’s instructions and

trial counsel did not offer any instructions.

¶ 12 The trial court denied Jenkins leave to file the petition. Jenkins now appeals.

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¶ 13 ANALYSIS

¶ 14 With counsel appointed to assist Jenkins with his appeal, Jenkins now argues that the

petition he filed counts as his first postconviction challenge to the judgment entered on

March 8, 2012, and therefore he did not need leave of the court to file the petition. Jenkins

also argues that because he adequately stated the gist of a claim for ineffective assistance of

counsel, the trial court should have advanced the petition to the second stage of

postconviction proceedings. In the alternative, he argues that his petition met the cause and

prejudice test for filing a successive postconviction petition.

¶ 15 Initial or Successive Petition

¶ 16 We first address Jenkins’ argument that he had a right to file his initial postconviction

petition challenging the 2012 judgment. Section 122-1 of the Post-Conviction Hearing Act

(Act) provides:

“A proceeding under [the Act] may be commenced within a reasonable period of

time after the person’s conviction notwithstanding any other provisions of this

Article. ***

***

*** Only one petition may be filed by a petitioner under this Article without

leave of the court. 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.” 725 ILCS

5/122-1(a-5), (f) (West 2012).

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¶ 17 Our supreme court explained, “as used in the Post-Conviction Hearing Act, the word

‘conviction’ is a term of art which means a final judgment that includes both a conviction

and a sentence.” (Emphasis in original.) People v. Hager, 202 Ill. 2d 143, 149 (2002). Illinois

courts rely on federal “habeas case law in interpreting and applying the Act.” People v.

Hodges, 234 Ill. 2d 1, 12 (2009). Federal habeas law similarly restricts the right of a

defendant to file successive challenges to a conviction. Magwood v. Patterson, 561 U.S. 320,

330-31 (2010).

¶ 18 In Magwood, Magwood used an application for a writ of habeas corpus to challenge both

a finding of guilt and the sentence imposed on him. The federal court granted the writ, and

the proceedings led the state court to hold a new sentencing hearing. Following the

imposition of a new sentence, Magwood again applied for a writ of habeas corpus, and the

district court again granted the writ. The United States Court of Appeals for the Eleventh

Circuit reversed the district court’s judgment, holding that Magwood’s petition did not meet

the stringent criteria for a “second or successive” petition for a writ of habeas corpus.

Magwood, 561 U.S. at 329.

¶ 19 The Supreme Court reversed the Eleventh Circuit’s decision and reinstated the district

court’s judgment. The Magwood court said:

“According to Magwood, his 1986 resentencing led to a new judgment, and his

first application challenging that new judgment cannot be ‘second or successive’

***. We agree.

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We have described the phrase ‘second or successive’ as a ‘term of art.’ ***

[B]oth [the statute’s] text and the relief it provides indicate that the phrase

‘second or successive’ must be interpreted with respect to the judgment

challenged.

*** [T]he existence of a new judgment is dispositive.” Magwood, 561 U.S. at

331-38.

¶ 20 The State argues that we should adopt as Illinois law dicta in a footnote in a federal

opinion. In Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), decided more than a decade before

Magwood, Walker obtained postconviction relief, and the trial court imposed a new sentence.

Walker then petitioned again for postconviction relief, attacking only the new sentence. The

Walker court found that the new petition qualified as an initial postconviction petition, but in

a footnote the court said, “[o]f course, had Walker sought to challenge aspects of his

conviction the district court would have been correct in dismissing his petition as

successive.” Walker, 133 F.3d at 455 n.1. We find that Magwood, not Walker, correctly

states the applicable law.

¶ 21 The trial court entered a new judgment against Jenkins when it resentenced him in 2012.

Jenkins first filed a postjudgment challenge to the 2012 judgment in 2013 when he filed the

document he labeled “Successive Petition for Post Conviction Relief.” The State argues that

because Jenkins so labeled the petition, he cannot contest the trial court’s decision to treat the

petition as a successive postconviction petition. We find this case similar to People v. Smith,

386 Ill. App. 3d 473 (2008). Smith sought to challenge his conviction, and he labeled his

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request as a petition under section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401

(West 2006). The trial court dismissed the petition, finding that Smith did not meet the time

constraints for a 2-1401 petition. The appellate court held:

“It has long been recognized that a lack of legal knowledge might cause a pro se

prisoner to select the wrong method to collaterally attack his conviction.

A pro se defendant is not necessarily master of his claim, and the court may

override his choice of procedural vehicle by which to seek relief. [Citation.]

Where a pro se defendant files a pleading alleging a deprivation of a

constitutional right cognizable under the Act, the trial court may recharacterize it

as a postconviction petition and the petition may be recharacterized even if it is

clearly labeled as another type of pleading. [Citation.] A pleading is not

determined by the label applied to it by the defendant, but by its content and

character. [Citation.] Recharacterizing a petition protects a pro se litigant from

the possible harsh result arising from his lack of legal knowledge in selecting a

method to attack his conviction ***.” Smith, 386 Ill. App. 3d at 476-78.

¶ 22 We recognize that our supreme court rejected part of the reasoning of Smith and held that

a trial court has no duty to recharacterize a pro se litigant’s petition if the pro se litigant

chooses the wrong legal form for his petition. People v. Stoffel, 239 Ill. 2d 314, 324 (2010).

But here, Jenkins properly labeled his petition as a petition brought under the Act. He only

failed to recognize that, because of the intervening judgment, his petition counted as an initial

postconviction petition. The court, and not the pro se petitioner, should bear responsibility

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for finding and recognizing the import of Hager and Magwood. The trial court erred when it

failed to recognize that Jenkins first challenged the judgment entered in 2012 when he filed

his petition in 2013 and that under the Act Jenkins had a right to file the petition challenging

the 2012 judgment without leave of the court.

¶ 23 Ineffective Assistance of Counsel

¶ 24 Jenkins argues that he adequately stated a claim that his trial counsel provided ineffective

assistance because counsel failed to request an instruction on second degree murder. We

review the dismissal of Jenkins’ petition under the standard stated in Hodges, 234 Ill. 2d at

17:

“To prevail on a claim of ineffective assistance *** a defendant must show both

that counsel’s performance ‘fell below an objective standard of reasonableness’

and that the deficient performance prejudiced the defense. [Citation.] At the first

stage of postconviction proceedings under the Act, a petition alleging ineffective

assistance may not be summarily dismissed if (i) it is arguable that counsel’s

performance fell below an objective standard of reasonableness and (ii) it is

arguable that the defendant was prejudiced.”

¶ 25 The State argues that the affidavit of Jenkins’ trial counsel defeats his claim for

ineffective assistance. The attorney said his “best guess,” without seeing the transcript and

with no memory of the instructions conference, was that he requested an instruction on

second degree murder and the trial court denied the request. Because the transcript shows no

such request, the State concludes that the attorney must have requested the instruction in a

conference in chambers and not on the record. But if that were the case, then counsel’s

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performance fell below an objective standard of reasonableness when he failed to put the

request for the instruction on the record, so that appellate counsel could decide whether to

raise the issue as grounds for reversal of the judgment.

¶ 26 The State also suggests that counsel performed adequately because the trial court would

not have used the instruction if counsel had offered it. But Negron testified that he saw

Hamilton run away, unarmed, and he saw Stopka, wielding a bat, run after Hamilton, right

before he heard the fatal shots. Jenkins admitted in his statement that he shot at Stopka when

he saw Stopka, about 15 feet away, holding a bat. The evidence could support a finding that

Jenkins shot at Stopka based on an unreasonable belief that he needed to shoot to protect

Hamilton.

¶ 27 We see no strategic purpose for the failure to request the instruction on second degree

murder. The jury would need to find all the elements of first degree murder before it would

consider the second degree murder instruction, so the instruction would not jeopardize

Jenkins’ interests. See People v. Wilmington, 2013 IL 112938, ¶¶ 48, 50; People v. Bell, 152

Ill. App. 3d 1007, 1015 (1987). Trial counsel, in his affidavit, offered no explanation for the

decision not to request the instruction. We find that counsel’s performance arguably fell

below an objective standard of reasonableness when he failed to request an instruction on

second degree murder. See Bell, 152 Ill. App. 3d at 1015.

¶ 28 Next, we must determine whether the record might, arguably, support a finding that

Jenkins suffered prejudice due to counsel’s arguable error. We have already noted that the

evidence could support a finding of second degree murder. Moreover, two different juries

found this case very difficult to decide. The first trial ended with a hung jury, and the second

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trial ended only after the jury sent the judge two notes stating that the jurors could not reach a

unanimous verdict. Some jurors may have believed that Jenkins’ acts in defense of Hamilton

mitigated his guilt, and on that basis they had trouble finding him guilty of first degree

murder. The jury may have accepted the option of second degree murder if the court had

offered it. Accordingly, we find that Jenkins has stated the gist of a claim that his conviction

resulted in part from a denial of his constitutional right to the effective assistance of counsel.

¶ 29 CONCLUSION

¶ 30 The document labeled “Successive Petition for Post Conviction Relief” qualified as an

initial postconviction petition, which Jenkins had a right to file without leave of the trial

court. Jenkins adequately alleged facts to support a claim that his trial counsel provided

ineffective assistance when counsel failed to request an instruction on second degree murder.

We reverse the order dismissing the petition and we remand for further proceedings on the

postconviction petition.

¶ 31 Reversed and remanded.