People v. Jones

2023 IL App (5th) 210137-U

Opinion

2023 IL App (5th) 210137-U ~ NOTICE Decision filed 06/21/23. The This order was filed under text of this decision may be NO. 5-21-0137 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petrtion for INTHE limited circumstances arrowed Rehearing or the disposmon of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) V. ) No. 97-CF-448 ) VOND. JONES, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding.

WSTICE WELCH delivered the judgment of the comi. Justices Cates and Barberis concmTed in the judgment.

ORDER

,i 1 Held: The trial comt ened in dismissing the defendant's amended postconv1chon petition at the second stage of the postconviction proceedings where the defendant made a substantial showing that his appellate counsel was ineffective for failing to argue that his speedy-ti·ial rights were violated and where he made a substantial showing that his counsel deprived him of his right to testify.

,i 2 In April 2021 , the circuit comi of St. Clair County granted the State's motion to dismiss

the defendant, Von Jones's, amended postconviction petition during the second stage of

proceedings under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)).

The defendant appeals this dismissal, arguing that the comt's order should be reversed and this

case remanded for a third-stage evidentiaiy hearing because he made a substantial showing that

his trial and appellate counsel were ineffective for failing to argue that his speedy-trial rights were

1 violated, and his counsel deprived him of his right to testify. For the reasons that follow, we

reverse and remand for a third-stage evidentiary hearing.

¶3 I. BACKGROUND

¶4 The facts necessary to our disposition of this appeal follow. At a May 2000 jury trial, the

defendant was convicted of two counts of first degree murder for the shooting deaths of two

individuals. Subsequently, he was sentenced to mandatory life imprisonment. In his direct appeal

from his convictions, he argued that the State had failed to prove him guilty beyond a reasonable

doubt. This court disagreed and affirmed his convictions. People v. Jones, No. 5-00-0640 (2002)

(unpublished order under Supreme Court Rule 23). He then filed a petition for leave to appeal to

the Illinois Supreme Court, which was denied on October 2, 2002.

¶5 On April 3, 2003, the defendant filed a pro se petition for postconviction relief, claiming

the following constitutional violations: (1) he was denied his statutory and constitutional right to

a speedy trial; (2) he was denied his right to a fair and impartial trial when the trial court failed to

inquire during voir dire if any panel members would be prejudiced by knowledge of his alleged

drug dealer status; (3) he was denied a fair trial and due process where the State relied on

statements of coerced witnesses; (4) the court and his trial counsel failed to advise him that he had

a constitutional right to testify; (5) the prosecutor committed misconduct by improperly vouching

for witness credibility, improperly arguing that the State knew the truth in this case, and improperly

asserting that the police would do nothing wrong and that they did “good work”; and (6) his trial

counsel and appellate counsel were ineffective.

¶6 On July 1, 2003, the trial court concluded that the defendant had raised the gist of a

constitutional claim on at least one of his claims, and appointed counsel to represent him in the

postconviction proceedings. After nearly 13 years of postconviction counsel seeking continuances

2 to file an amended postconviction petition, counsel elected to stand on the defendant’s pro se

petition. On February 8, 2016, the State filed a motion to dismiss the postconviction petition,

contending that the postconviction petition was untimely; the defendant’s claims were forfeited

because they were not raised prior to trial, at trial, in his posttrial motion, or in his direct appeal;

his ineffective assistance of counsel claims did not satisfy Strickland v. Washington, 466 U.S. 668

(1984); and his claims were not outcome determinative.

¶7 On February 18, 2016, the trial court granted the State’s motion to dismiss, finding,

inter alia, that the defendant’s speedy-trial claims were without merit and that the record failed to

memorialize any facts to support his allegation that he wished to testify but counsel refused. The

defendant appealed this dismissal, and in light of the extraordinary passage of time between when

the defendant filed his pro se postconviction petition and when the trial court ruled on the petition,

this court reversed and remanded for further second-stage proceedings and appointment of new

counsel. People v. Jones, 2019 IL App (5th) 160083-U. This court did not address the substantive

issues raised in the postconviction petition.

¶8 Following remand, the defendant was appointed counsel, and new counsel filed an

amended postconviction petition on December 28, 2020. The amended petition asserted the

following pertinent ineffective assistance of trial counsel claims: the defendant was denied his

right to testify at his trial either by trial counsel’s intent or negligence, and his counsel was

ineffective for failing to argue that he was denied his right to a speedy trial when the trial court

improperly allowed the State to continue the trial beyond the statutory 120-days without showing

due diligence. The amended petition also asserted that appellate counsel was ineffective for, inter

alia, failing to raise these issues on direct appeal. On December 28, 2020, counsel filed a

certificate in compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).

3 ¶9 On January 28, 2021, the State filed a motion to dismiss the defendant’s amended

postconviction petition, arguing, in pertinent parts, that the majority of the issues raised in the

amended petition were included in the defendant’s pro se petition and addressed in the trial court’s

earlier ruling, that most of his claims involved matters that were either decided on direct appeal or

could have been raised on appeal as they concerned matters that were contained in the record, and

his claims of ineffective assistance of appellate counsel failed to show that counsel’s performance

was deficient or that the claimed deficiency prejudiced him in any way. On April 29, 2021, the

trial court entered an order, dismissing the defendant’s amended postconviction petition. With

regard to the claims relevant to this appeal, i.e., the speedy-trial violation and violation of his right

to testify, the court found that those issues could have been raised during the defendant’s direct

appeal of his conviction. Thus, the court found that those issues were waived. However, even if

those issues were not waived, the court found that the State’s arguments against those issues in its

motion to dismiss were well-taken. Accordingly, the court found that there was no merit to those

claims. As for the defendant’s arguments that his appellate counsel was ineffective, the court

found that counsel could not be deemed ineffective for having failed to raise meritless claims on

appeal. The defendant appeals.

¶ 10 II. ANALYSIS

¶ 11 A. Postconviction Rules

¶ 12 The Act provides a three-stage procedure for a petitioner alleging substantial deprivations

of his constitutional rights. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At the first stage, the trial

court, without input from the State or further pleadings from petitioner, determines if the petition

is frivolous or patently without merit. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). If the

petition is not dismissed at this stage, then it advances to the second stage where counsel may be

4 appointed to indigent petitioners (725 ILCS 5/122-4 (West 2020)) and where the State is permitted

to file a motion to dismiss or an answer to the petition (id. § 122-5). Hodges, 234 Ill. 2d at 10-11.

At this stage, the court must determine whether the petition makes a substantial showing of a

constitutional violation. People v. Edwards, 197 Ill. 2d 239, 246 (2001). If petitioner satisfies his

burden of making a substantial showing of a constitutional violation, then the petition advances to

a third-stage evidentiary hearing. Id. However, if no such showing is made, then the petition is

dismissed. Id. The second-stage dismissal of a postconviction petition is subject to de novo

review. People v. Chears, 389 Ill. App. 3d 1016, 1024 (2009).

¶ 13 B. Forfeiture

¶ 14 The defendant first argues that the trial court improperly found that the arguments raised

in his amended postconviction petition were forfeited. A postconviction proceeding is not an

appeal of the underlying judgment, but rather a collateral proceeding that allows review of

constitutional issues that were not, and could not have been, adjudicated on direct appeal. People

v. Ortiz, 235 Ill. 2d 319, 328 (2009). Therefore, issues that were raised and decided on direct

appeal are barred from consideration by res judicata, and issues that could have been raised, but

were not, are considered forfeited. People v. Beaman, 229 Ill. 2d 56, 71 (2008).

¶ 15 Specifically, with regard to the argument that his counsel deprived him of his constitutional

right to testify at trial, the direct appeal record did not contain sufficient information to litigate this

constitutional claim. The forfeiture doctrine does not apply to issues raised in a postconviction

petition that stem from matters outside the record and could not have been brought on direct appeal.

People v. Piper, 272 Ill. App. 3d 843, 846 (1995). The issue here of whether the defendant’s

counsel deprived him of his right to testify at trial is one that can only be proven by facts (if they

exist) outside the record as there is nothing in the record indicating that the defendant waived his

5 right to testify, that his counsel discussed this constitutional right with him, or that the trial court

admonished him concerning his right to testify. Because the allegations contained in the

defendant’s amended petition require an inquiry into certain matters outside the record, this issue

was not forfeited. See id. (the issue of whether petitioner’s attorney deprived him of his

constitutional right to testify on his own behalf could only be proven by facts outside the record,

and therefore, the issue could not be raised on direct review and was not forfeited).

¶ 16 Moreover, the doctrine of forfeiture is relaxed when the alleged forfeiture stems from

ineffectiveness of appellate counsel. People v. Black, 314 Ill. App. 3d 276, 279 (2000). In this

case, the defendant asserted that his appellate counsel was ineffective for failing to argue, on direct

appeal, that his speedy-trial rights and his right to testify were violated. Because he could not have

raised appellate counsel’s effectiveness at any time prior to the instant proceeding, we will address

the merits of these arguments.

¶ 17 C. Ineffective Assistance of Counsel Rules

¶ 18 A defendant’s claim of ineffective assistance of counsel is analyzed under the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective

assistance of counsel claim, a defendant must show both that counsel’s performance was deficient,

and that the deficient performance prejudiced defendant. People v. Thomas, 2017 IL App (4th)

150815, ¶ 10. The deficient-performance prong requires a defendant to show counsel’s

performance fell below an objective standard of reasonableness. Id. To establish the second prong,

a defendant must show that, but for counsel’s errors, there is a reasonable probability that the result

of the proceeding would have been different. Id. A defendant must satisfy both prongs, and a

failure to satisfy either prong precludes a finding of ineffectiveness. Id.

6 ¶ 19 “Claims of ineffective assistance of appellate counsel are measured against the same

standard as those dealing with ineffective assistance of trial counsel.” People v. Childress, 191 Ill.

2d 168, 175 (2000). Appellate counsel renders ineffective assistance by failing to raise an issue

on direct appeal if that failure was objectively unreasonable, and the decision prejudiced defendant.

People v. Easley, 192 Ill. 2d 307, 328-29 (2000). However, appellate counsel is not required to

brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from

raising issues which, in counsel’s judgment, are without merit, unless counsel’s decision is patently

wrong. Id. at 329. Thus, unless the underlying issues are meritorious, defendant has suffered no

prejudice from counsel’s failure to raise them on appeal. Id.

¶ 20 D. Speedy-Trial Violation

¶ 21 The defendant’s first ineffective assistance of counsel claim rests on whether he was denied

his right to a speedy trial. In Illinois, a criminal defendant has a constitutional and statutory right

to a speedy trial. People v. Phipps, 238 Ill. 2d 54, 65 (2010). Although Illinois’s speedy-trial

statutes implement the constitutional right, the statutory and constitutional rights are not

coextensive. People v. Sandoval, 236 Ill. 2d 57, 67 (2010). The U.S. Constitution guarantees a

right to a speedy trial but does not set forth the number of days that constitute a speedy trial. U.S.

Const., amends. VI, XIV. Under the constitutional analysis, the determination of whether a

defendant’s right to a speedy trial has been violated depends on such factors as the length of the

delay in trial, the reasons for the delay, defendant’s assertion of the speedy-trial right, and prejudice

to defendant caused by the delay. People v. Staten, 159 Ill. 2d 419, 426 (1994).

¶ 22 In contrast, the Illinois speedy-trial statute specifies the exact number of days within which

a trial must be granted to satisfy the speedy-trial requirement. See 725 ILCS 5/103-5(a) (West

2000). Section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) provides that, when a

7 defendant is held in custody, he must be brought to trial within 120 days from the date he was

taken into custody. Id. To prove a statutory speedy-trial violation, defendant has to show that he

has not been tried within the 120-day period and that he has not caused or contributed to the delay.

Staten, 159 Ill. 2d at 426. Counsel’s failure to seek discharge on speedy-trial grounds generally

will be deemed ineffective assistance of counsel if there is a reasonable probability that defendant

would have been discharged had a timely motion for discharge been made and no justification was

proffered for counsel’s failure to bring the motion. Id. However, counsel’s failure to assert a

speedy-trial violation cannot establish either prong of an ineffective assistance claim if there is no

lawful basis for raising a speedy-trial objection. Phipps, 238 Ill. 2d at 65.

¶ 23 Here, the defendant was arrested on either April 24 or April 26, 1997, 1 and his jury trial

commenced on May 1, 2000. He contends that he was entitled to discharge on January 6, 1998.

The defendant asserts that he did not do anything to delay the trial until July 3, 1997, 2 when he

and the State jointly agreed to a continuance. The defendant argues that, at that point, 70 days had

passed in the speedy-trial period. However, the State contends that, from April 26, 1997, through

July 8, 1997, the delay attributable to the State would be 47 days because, on June 2, 1997, the

defendant filed a request for the grand jury transcript, which was not completed until July 8. The

trial was again continued beginning November 14, 1997, because the State had not received DNA

testing results. On December 30, 1997, the State requested another continuance for this same

reason.

1 Although in the State’s December 30, 1997, motion to continue, the State asserted that the defendant was arrested on April 24, 1997, in its appellee brief, the State argued that the defendant was arrested on April 26, 1997. The April 26 arrest date was supported by an arrest warrant executed on that date that is included in the record of appeal. However, an April 24 docket entry noted that the defendant was arrested on this date. 2 The joint motion to continue was filed on July 3. However, the continuance was granted on July 1. 8 ¶ 24 Although the State again requested a continuance on January 27, 1998, the following day

the defendant filed a notice of alibi defense. The State claims that the delay caused by the

defendant’s late filing of an alibi defense, nine months after his arrest, was attributed to the

defendant and tolled the speedy-trial time until February 24, 1998. See People v. Cross, 2022 IL

127907, ¶¶ 27-28. Thereafter, on February 24, 1998, on the State’s motion and over the

defendant’s objection, the trial court scheduled a status hearing for March 12, 1998. There were

then several continuances at the defendant’s request, but the defendant contends the speedy-trial

time had already expired at this point.

¶ 25 Based on the above, it appears that the speedy-trial issue mainly turns on whether the State

sufficiently demonstrated its due diligence in seeking DNA evidence under section 103-5(c) of the

Code (725 ILCS 5/103-5(c) (West 1996)). Section 103-5(c) provided:

“If the court determines that the State has exercised without success due diligence to obtain results of DNA testing that is material to the case and that there are reasonable grounds to believe that such results may be obtained at a later day, the court may continue the cause on application of the State for not more than an additional 120 days.” Id.

¶ 26 Although section 103-5(c) does not define due diligence, this court in People v. Battles,

311 Ill. App. 3d 991, 998 (2000), set out three requirements that must be met for the State to show

due diligence. Those requirements are as follows: (1) the State should provide a full explanation

of each and every step taken to complete DNA testing within the 120-day term; (2) the steps

articulated should comprise a course of action that a reasonable and prudent person intent upon

completing tests within 120 days would follow; and (3) the State should explain why those efforts

fell short of their objective and resulted in an unavoidable delay. Id.

¶ 27 Applying the above requirements, this court then determined in Battles that the State failed

to meet its burden of showing that it exercised due diligence to obtain DNA test results within the

speedy-trial term. Id. at 998-1000. In making this decision, this court noted that the State’s

9 comment that the crime laboratory was “ ‘quite backlogged’ ” did not permit a conclusion that

diligent efforts to complete testing were unavoidably frustrated by the laboratory’s workload as

there would always be some backlog. Id. at 1001. Instead, the State should have explained more

than the backlog’s mere existence; it should have explained what reasonable and prudent effort

was made to deal with that backlog and why the backlog hampered the effort to complete the

particular testing at issue. Id. The court also noted that it took the State the majority of the speedy-

trial time to decide whether to perform DNA testing, and the State made no effort to expediate

testing before invoking section 103-5(c). Id. at 1004.

¶ 28 This court then applied the requirements set out in Battles when determining whether the

State exercised due diligence in People v. Workman, 368 Ill. App. 3d 778, 785-86 (2006). There,

the State explained in its motion for continuance that it acted diligently in obtaining laboratory

analyses of the evidence in that the bulk of the items were taken to the crime laboratory in the

week following the offense; there was a backlog at the crime laboratory; the evidence required a

complicated and multi-level analysis; and the State spoke with laboratory personnel and learned

that there was a delay because one of the technicians was on maternity leave, and the only other

technician at the laboratory was pregnant and could not work with certain chemicals. Id. at 786.

Based on the State’s motion, this court found that the State seemed mindful of the requirements

set out in Battles and concluded that the trial court did not err in finding that the State exercised

due diligence, despite the delay. Id.

¶ 29 In the present case, the State’s November 14, 1997, motion for continuance asserted that

the State had exercised due diligence without success to obtain DNA testing results material to the

case, there were reasonable grounds to believe that the DNA testing results would be obtained at

a later date, and the interests of justice required a continuance of the trial. At the November 17

10 hearing, the defendant announced that he was ready for trial and that he was objecting to any

continuance. However, in requesting the continuance, the State asserted that DNA testing was not

complete, there were only two laboratories in Illinois that were doing DNA testing, the other

laboratories were either “described as offline or being brought up to speed,” and the testing should

be complete in mid-December. The continuance was granted over the defendant’s objection.

¶ 30 Again, on December 3, the State filed another request for a continuance based on the DNA

testing not being complete and noted that, although the case was considered a priority, there was

backlog on the testing because only two laboratories were doing testing, and the testing would not

be complete until sometime in December. Subsequently, on December 30, 1997, the State filed

another motion for continuance, which asserted that the State had exercised due diligence without

success to obtain DNA testing results material to the case, and there were reasonable grounds to

believe that the DNA testing results would be obtained at a later date. The State then requested

that the trial court grant the continuance of the trial for not more than an additional 120 days. The

case was continued until January 27, 1998.

¶ 31 On appeal, the defendant contends that the State’s requested continuances failed to satisfy

the requirements set out in Battles. In particular, the defendant argues that the State failed to allege

sufficient facts explaining how the State exercised due diligence or what reasonable grounds

existed that would support the additional delay, beyond a mere backlog. We find that the defendant

has made a substantial showing that the State failed to establish due diligence where, pursuant to

Battles, the mere existence of a DNA testing backlog is generally not sufficient to show due

diligence and where the State failed to explain more than the backlog’s existence. Also, the

defendant has made a substantial showing that, if the State failed to establish due diligence during

this time, the 120-day speedy-trial period would have ended at this point, and there was a

11 reasonable probability that the defendant would have been discharged. However, there is no

indication in the record as to why the defendant’s trial counsel failed to invoke the defendant’s

speedy-trial rights. Thus, we find that the defendant has made a substantial showing that his

appellate counsel was ineffective for failing to raise this issue on direct appeal.

¶ 32 In making this decision, we note that the State argues that some of the continuances during

this time were at least partially the defendant’s fault because he filed three motions, i.e., a motion

to preserve DNA evidence, a motion to produce certain evidence, and a motion for investigative

services, that also delayed the trial for the same time period. However, the State’s arguments can

be addressed at the third-stage evidentiary hearing. Also, if necessary, the State can raise its

argument concerning the defendant’s filing of an alibi defense further contributing to the delay at

this hearing. Moreover, if the defendant was entitled to discharge on January 6, 1998, as the

defendant contends, then he would have become entitled to discharge before the legislature

amended section 103-5(a) of the Code to require a defendant to make an oral or written demand

for a trial on the record in order for the delay not to be considered agreed to by a defendant. See

725 ILCS 5/103-5(a) (West 1998). Thus, we find that the trial court erred in dismissing the

defendant’s amended postconviction petition at the second stage of the postconviction proceedings

with regard to this issue.

¶ 33 E. Right to Testify

¶ 34 The defendant next contends that his amended postconviction petition made a substantial

showing that his counsel deprived him of his right to testify at trial. The right of a criminal

defendant to testify at his trial is a fundamental constitutional right. Piper, 272 Ill. App. 3d at 846.

“The denial of a defendant’s right to testify can be a constitutional violation in and of itself, since

a criminal defendant’s prerogative to testify is a fundamental right which only the defendant may

12 waive, and the question of the exercise of that right is not a matter of a strategic or tactical decision

best left to trial counsel.” Id. However, as with many constitutional rights that may be waived, it

is incumbent upon defendant to assert his right to testify. People v. Cleveland, 2012 IL App (1st)

101631, ¶ 65. To preserve the right, a defendant is required to make a contemporaneous assertion

of the right. People v. Knapp, 2020 IL 124992, ¶ 46. Generally, an attorney’s performance will

not be found ineffective simply because counsel advised defendant not to testify; instead, counsel

will only be found to be ineffective where the evidence indicates that counsel refused to allow

defendant to testify. People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009).

¶ 35 Here, in his pro se postconviction petition, the defendant asserted that he wanted to testify

on his own behalf, but he was not familiar with trial procedure, counsel never discussed his right

to testify with him, and he did not know when he would be called to testify. In his amended

postconviction petition, he asserted that he wanted to testify on his own behalf, but he did not

because counsel never discussed his right to testify with him. Unlike the majority of the cases

cited by the State in its appellee brief, there is nothing in this record on appeal indicating that the

defendant waived his right to testify, that his counsel discussed this constitutional right with him,

or that the trial court admonished him concerning this right before the defense rested. Although

the trial court is not required to admonish the defendant about the right to testify, the absence of

such admonishments supports the defendant’s claims that this was never discussed with him. It

would be difficult for a defendant to make a contemporaneous assertion of the right to testify if he

was never informed that he had such a right and failure to assert it would result in waiver.

¶ 36 In arguing that the defendant’s counsel did in fact talk to the defendant about his right to

testify, the State points to a statement that defense counsel made to the trial court after the State

rested its case that he was going to have a conference with his client. The State argues that, at this

13 point in the proceeding, the only decision that defense counsel needed the defendant’s permission

on was whether the defendant waived his right to testify. However, there is nothing in the record

showing that this was the subject of that conversation, and we will not assume that defense counsel

informed the defendant about his right to testify and had a conversation about waiving that right

based on that one statement.

¶ 37 Thus, we find that the defendant has made a substantial showing that his trial counsel

deprived him of his right to testify at trial. Since the trial court dismissed the defendant’s amended

petition at the second stage of the postconviction proceedings, we are unaware of what the

defendant’s testimony at his trial might have been and cannot evaluate how that testimony might

have impacted the jury. Thus, an evidentiary hearing is necessary to resolve the questions about

what occurred at the trial and how the defendant’s testimony would have impacted the outcome of

his case. Accordingly, we find that the trial court erred in dismissing the defendant’s

postconviction petition at the second stage of the postconviction proceedings and remand for third-

stage proceedings on his claims.

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, we reverse the second-stage dismissal of the defendant’s

amended postconviction petition and remand the cause to the trial court for a third-stage

evidentiary hearing on the defendant’s petition.

¶ 40 Reversed and remanded.