People v. Johnson

2024 IL App (5th) 230339-U

• Court: Appellate Court of Illinois
• Decided: January 3, 2024
• Docket: 5-23-0339
• Status: Unpublished

Opinion

2024 IL App (5th) 230339-U NOTICE NOTICE Decision filed 01/03/24. The This order was filed under text of this decision may be NO. 5-23-0339 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 07-CF-211 ) BRANDON L. JOHNSON, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying leave to file a successive postconviction petition where the issues in the proposed petition were based on the trial record and defendant’s only asserted “cause” for failing to raise them sooner was his lack of legal knowledge. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Brandon L. Johnson, appeals the circuit court’s order denying leave to file a

successive postconviction petition. His appointed appellate counsel, the Office of the State

Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that

the circuit court erred. Accordingly, it has filed a motion to withdraw as counsel along with a

supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified

defendant of its motion, and this court has provided him an opportunity to file a response, which

1 he has done. However, after considering the record on appeal, OSAD’s memorandum and

supporting brief, and defendant’s response, we agree that this appeal presents no reasonably

meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit court’s

judgment.

¶3 BACKGROUND

¶4 Following a jury trial, defendant was convicted of aggravated battery of a child and

sentenced to 29 years in prison. Briefly summarized, the trial evidence showed that defendant and

Amber MacLeod brought their unresponsive three-month-old son, Trisdon, to the hospital.

Defendant, who had been caring for Trisdon while MacLeod worked, told police that, while

carrying Trisdon, he tripped over a “bouncy chair” causing Trisdon to hit his head on a coffee

table. However, two doctors who treated Trisdon opined that, given the extent of his injuries, they

could not have been caused accidentally.

¶5 Defense counsel submitted Illinois Pattern Jury Instructions, Criminal (IPI Criminal), No.

5.01B, which defines “knowingly.” The court refused the instruction noting that the committee

comments recommend giving the instruction only if the jury requests guidance on the issue. In

closing, the prosecutor told the jury, “You don’t have to find that he did anything specific. You

don’t have to find every single injury. Just that he knowingly caused great bodily harm to

Trisdon.”

¶6 The jury found defendant guilty. The court sentenced him to 29 years’ imprisonment.

¶7 On direct appeal, this court affirmed. People v. Johnson, No. 5-09-0661 (2010)

(unpublished order under Illinois Supreme Court Rule 23) (Johnson I). Although defendant raised

several arguments, he did not contend that the court erred by refusing IPI Criminal No. 5.01B. Nor

did he challenge the prosecutor’s above-quoted argument.

2 ¶8 In 2012, defendant filed a postconviction petition. He argued several instances of

ineffective assistance of counsel, including that counsel failed to hire an expert—despite promising

to do so—and failed to tender an instruction on the lesser-included offense of reckless conduct.

The court denied the petition following a hearing. This court affirmed. People v. Johnson, 2016

IL App (5th) 130554 (Johnson II).

¶9 In 2014, defendant filed a petition pursuant to section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2014)), which claimed, inter alia, that State was erroneously

allowed to make confusing arguments about the requisite mental state and that the court should

have given IPI Criminal 5.01B. The court dismissed the petition as untimely.

¶ 10 In 2015, defendant sought leave to file a successive postconviction petition, arguing that it

was error to deny his counsel’s request for IPI Criminal 5.01B, that postconviction counsel

provided unreasonable assistance by failing to raise that issue, and that direct-appeal counsel was

ineffective for failing to raise the issue. The circuit court denied leave to file. Defendant appealed

both rulings, but voluntarily dismissed the appeal.

¶ 11 Defendant again moved for leave to file a successive petition in 2017, arguing that the

general consensus among the medical community suggests that the types of injuries found in

shaken baby cases can have accidental causes. The court denied leave to file.

¶ 12 Later that same year, defendant sought leave to file another successive postconviction

petition. The proposed petition alleged that (1) defendant’s fourth amendment rights were violated

during police interrogation; (2) the prosecutor misstated the law during closing arguments; (3) the

trial court erred in refusing his request to instruct the jury on the definition of knowing conduct;

(4) he should not have received a 29-year sentence after rejecting a 12-year sentence during plea

negotiations; (5) it was improper to seat a juror who was previously a public defender; and

3 (6) defendant was actually innocent. Defendant’s asserted cause for failing to raise these issues

earlier was that he was not an attorney and did not have adequate access to a law library.

¶ 13 The court denied leave to file and assessed a $75 sanction for filing a frivolous pleading.

On appeal, this court granted counsel leave to withdraw and affirmed. People v. Johnson, 2022

IL App (5th) 180201-U (Johnson III).

¶ 14 On April 5, 2023, defendant sought leave to file yet another successive postconviction

petition. He argued that the erroneous refusal of IPI Criminal 5.01B, combined with the State’s

erroneous arguments about defendant’s mental state, deprived him of a fair trial. The circuit court,

noting that both aspects of the issue had been raised previously, denied leave to file. The court

sanctioned defendant an additional $75 for filing a frivolous pleading. Defendant timely appealed.

¶ 15 ANALYSIS

¶ 16 OSAD concludes that there is no good-faith argument that the circuit court erred in denying

leave to file. It notes that the issue is based on the trial record and thus could have been raised on

direct appeal or in defendant’s initial postconviction petition. Moreover, his claim that he was

unaware of the specific legal arguments in favor of these issues does not establish cause for failing

to raise them sooner. We agree.

¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides

a mechanism by which a criminal defendant may assert that his conviction resulted from a

substantial denial of his constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill. 2d 247, 253

(2008). Issues that were decided on direct appeal or in previous collateral proceedings are barred

by res judicata. People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002). Issues that could have been

raised earlier, but were not, are forfeited. People v. Blair, 215 Ill. 2d 427, 443-44 (2005).

4 ¶ 18 The Act contemplates the filing of only one postconviction petition and provides in section

122-3 (725 ILCS 5/122-3 (West 2020)) that “[a]ny claim of substantial denial of constitutional

rights not raised in the original or an amended petition is waived.” People v. Bailey, 2017 IL

121450, ¶ 15. To file a successive petition, a defendant must obtain leave of court, which may be

granted where the defendant demonstrates cause for his or her failure to bring the claim in an initial

postconviction proceeding and prejudice resulting from that failure. 725 ILCS 5/122-1(f) (West

2020). “Cause” in this context refers to any objective factor, external to the defense, which

impeded the petitioner’s ability to raise a specific claim in the initial postconviction proceeding.

Pitsonbarger, 205 Ill. 2d at 462.

¶ 19 Defendant’s most recent proposed petition argued that the court erred in refusing to give

IPI Criminal No. 5.01B and that the State’s arguments allegedly diminishing its burden of proof

with regard to defendant’s mental state made this instruction necessary. He raised both arguments

in his previous proposed petition. The only cause he alleged was that he is not an attorney and had

inadequate access to law libraries. We rejected this argument, noting that defendant was afforded

an attorney-assisted postconviction petition and two attorney-assisted appeals and that, in any

event, lack of law library access was insufficient cause for failing to raise an issue. Johnson III,

2022 IL App (5th) 180201-U, ¶ 10 (citing People v. LaPointe, 365 Ill. App. 3d 914, 924 (2006)).

¶ 20 In his most recent filing, defendant alleges no new cause beyond that which we found

insufficient in his previous appeal. Indeed, defendant does not mention “cause” at all. Further,

the record demonstrates no objective reason why the issue could not have been raised on direct

appeal or in the initial postconviction petition.

¶ 21 Defense counsel tendered IPI Criminal No. 5.01B during trial. There followed a fairly

extensive discussion about why it should or should not be given. The prosecutor’s allegedly

5 objectionable argument was included in the trial transcript. Thus, the basis for the argument has

been in the record from the beginning and defendant has offered no reason why he could not have

raised the argument on direct appeal or in his initial postconviction petition. We note that he did

argue in the latter document that appellate counsel was ineffective for not raising certain issues but

did not include the instructional issue as one that counsel should have raised.

¶ 22 Defendant also cannot show prejudice because the issue lacks merit in any event. The

proposed instruction defines the term “knowingly.” Generally, a court need not define the term

“knowingly” in an original set of jury instructions because the term is within the jury’s common

knowledge. People v. Sperry, 2020 IL App (2d) 180296, ¶ 15. If a jury asks for clarification about

such a term, or manifests confusion about its meaning, then the court must instruct the jurors

accordingly. Id. Here, the jury never claimed that it was confused about the meaning of

“knowingly” or requested guidance on the issue. See People v. Comage, 303 Ill. App. 3d 269, 275

(1999) (citing IPI Criminal 3d No. 5.01B[1], Committee Comment, at 104) (instruction was

prepared primarily for response to jury inquiries).

¶ 23 In his response, defendant argues that trial and appellate counsel were ineffective for failure

to raise these issues. He asks rhetorically how “HE was expected to possess the knowledge to

raise this issue in his initial Post-Conviction Petition when three (3) licensed attorneys at law failed

to raise it at trial or on direct review.”

¶ 24 Defendant’s argument misses the point. Initially, in reviewing an attorney’s performance,

we must indulge a strong presumption that his decisions are the result of strategy rather than

incompetence. People v. Smith, 195 Ill. 2d 179, 188 (2000). Thus, we may not assume that,

because defendant’s prior attorneys failed to raise the issue, they simply missed it. Instead, we

assume that they were aware of the issue—the factual underpinnings of which were in the record—

6 and made a strategic decision not to raise it. See People v. Easley, 192 Ill. 2d 307, 329 (2000)

(appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not

incompetence of counsel to refrain from raising issues which, in his or her judgment, are without

merit, unless counsel’s appraisal of the merits is patently wrong).

¶ 25 If a defendant disagrees with appellate counsel’s appraisal of the merits of a given issue,

he must raise the issue of ineffectiveness of appellate counsel in a postconviction petition or it is

waived. See Blair, 215 Ill. App. 3d at 443-44. Here, defendant did raise in his initial

postconviction petition numerous instances of ineffective assistance of trial counsel and argued in

an amendment that appellate counsel was ineffective for not raising trial counsel’s ineffectiveness.

Defendant fails to explain why he had sufficient knowledge to raise those issues but not this one.

¶ 26 In any event, defendant’s argument that his lack of legal knowledge excuses his failure to

timely raise the issue must fail. The supreme court has made very clear that “ ‘all citizens are

charged with knowledge of the law’ ” and that “ ‘[i]gnorance of the law or legal rights will not

excuse a delay in filing a lawsuit.’ ” People v. Evans, 2013 IL 113471, ¶ 13 (quoting People v.

Lander, 215 Ill. 2d 577, 588 (2005)). Accordingly, ignorance of the law can never be the “cause”

for failing to present a claim in an initial postconviction petition. Id.

¶ 27 That defendant lacked sufficient “legal knowledge” to raise the issue cannot excuse his

failure to raise it earlier. To hold otherwise would risk reading the “cause” requirement out of the

statute entirely. A defendant would be free to file successive postconviction petitions ad infinitum,

arguing each time that appellate counsel was ineffective for failing to raise the new issue and the

defendant himself simply did not know about it. As noted, everything needed to raise the issue

was in the trial transcript. Defendant does not contend that the law has changed or that any new

facts came to light since his initial postconviction petition, and his only real excuse for not raising

7 it sooner was that he did not think of it at the same time as all the other reasons that he believed

trial counsel was incompetent.

¶ 28 CONCLUSION

¶ 29 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 30 Motion granted; judgment affirmed.