People v. Jordan

2022 IL App (3d) 190768-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 190768-U

Order filed June 6, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0768 v. ) Circuit No. 10-CF-724 ) SKYLAR JORDAN, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Justice Daugherity concurred in the judgment. Justice Holdridge specially concurred. ____________________________________________________________________________

ORDER

¶1 Held: The court did not err in dismissing defendant’s postconviction petition.

¶2 Defendant, Skylar Jordan, appeals the second-stage dismissal of his postconviction

petition. Defendant argues he made a substantial showing that posttrial and appellate counsel

provided ineffective assistance for failing to raise the issue that defendant was denied a fair trial

when the Peoria County circuit court imposed a firearm enhancement for one attempted murder

conviction that had not been found by the jury. We affirm. ¶3 I. BACKGROUND

¶4 Defendant was charged with two counts of first degree murder (720 ILCS 5/9-1(a)(1),

(a)(2) (West 2010)), two counts of attempted first degree murder (id. § 8-4(a), 9-1(a)(1)), and

two counts of aggravated battery with a firearm (id. § 12-4.2(a)(1)) following a shooting where

Anthony Johnson was killed, and Angela Johnson and Justin Stanley were injured. Defendant

retained private counsel and proceeded to a jury trial.

¶5 Evidence presented at trial established that a vehicle stopped in front of the Johnsons’

residence, defendant exited the vehicle and began shooting a firearm. A bullet grazed Angela’s

lower abdomen. Stanley suffered a gunshot wound to his shoulder which fractured his scapula

and vertebrae. Anthony died of a gunshot wound to the chest.

¶6 At the conclusion of closing arguments, the court gave the following jury instructions

pertaining to the offenses against Angela:

“To sustain the charge of attempt first degree murder as to Angela

Johnson, the State must prove the following propositions: First proposition, that

the defendant performed an act which constituted a substantial step toward the

killing of Angela Johnson.

And second proposition, that the defendant did so with the intent to kill

Angela Johnson.

***

To sustain the allegation made in connection with the offense of attempt first

degree murder as to Angela Johnson, the State must prove the following

proposition: That during the commission of the offense of attempt first degree

2 murder, the defendant personally discharged a firearm that proximately caused

great bodily harm to Angela Johnson.

To sustain the charge of aggravated battery with a firearm as to Angela

Johnson, the State must prove the following propositions: First proposition that

the defendant knowingly caused injury to Angela Johnson.

And second proposition, that the defendant did so by discharging a

firearm.”

¶7 The jury found defendant guilty of first degree murder of Anthony and attempted first

degree murder and aggravated battery with a firearm of Stanley and Angela. Further, the jury

found that during the commission of the offense of first degree murder, defendant personally

discharged a firearm that proximately caused the death of another person. The jury did not find

that during the commission of the offense of attempted first degree murder, defendant personally

discharged a firearm that proximately caused great bodily harm to Angela. However, the jury did

make this finding in regard to the commission of the attempted first degree murder of Stanley.

¶8 Before sentencing, trial counsel withdrew, and the court appointed the public defender to

represent defendant. The court sentenced defendant to 55 years’ imprisonment for the first

degree murder of Anthony and a consecutive term of 15 years’ imprisonment for attempted first

degree murder of Stanley. A 25-year firearm enhancement was added to each conviction. The

court sentenced defendant to 10 years’ imprisonment for attempted first degree murder of

Angela, with a 20-year firearm enhancement that was to run concurrent to the other convictions.

3 ¶9 Defendant appealed arguing that trial counsel had been ineffective. We affirmed finding

defendant was not prejudiced by trial counsel’s deficient performance. People v. Jordan, 2015 IL

App (3d) 120756-U.

¶ 10 Defendant filed a postconviction petition as a self-represented litigant. The court

advanced the petition to the second stage where defendant continued to proceed as a self-

represented litigant. Defendant’s petition alleged:

“The State failed to prove every material allegation in the indictment as to Angela

Johnson which inadvertently effected every indictment cause the weapon was in

all the indictments.

***Appellate counsel was deficient for not addressing this error, that

deficient act prejudiced the Petitioner cause had this error been addressed the

outcome would have been different.”

¶ 11 The court granted the State’s motion to dismiss.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues he made a substantial showing that posttrial and appellate

counsel provided ineffective assistance for failing to raise the issue that defendant was denied a

fair trial where the circuit court imposed a firearm enhancement for his attempted murder

conviction relating to Angela that had not been found by the jury. See Apprendi v. New Jersey,

530 U.S. 466 (2000).

¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) sets out

a three-stage proceeding in which a criminal defendant may assert that his conviction resulted

from a substantial denial of his rights under the United States Constitution, the Illinois

Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the second stage of a

4 postconviction proceeding, defendant must make “a substantial showing of a constitutional

violation.” People v. Domagala, 2013 IL 113688, ¶ 35. This “substantial showing” is a measure

of the legal sufficiency of the petition. Id. We review de novo the second-stage dismissal of a

postconviction petition. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 15 At the outset, we find that defendant has waived the claim he makes on appeal. “Any

claim of substantial denial of constitutional rights not raised in the original or an amended

petition is waived.” 725 ILCS 5/122-3 (West 2018). “[A] claim not raised in a petition cannot be

argued for the first time on appeal.” People v. Jones, 213 Ill. 2d 498, 505 (2004). Defendant

attempts to extract from his petition two distinct ineffective assistance arguments. However,

defendant’s petition only shares the core ineffective assistance claim with his argument on

appeal. In his petition, defendant argues the State failed to prove every material allegation as to

Angela, and that failure impacted the other verdicts because the same weapon was involved in

each offense. Only on appeal does defendant more specifically argue the circuit court erred by

enhancing his sentence where the jury did not make the necessary finding. For this reason,

defendant has waived this claim. See Jones, 213 Ill. 2d at 505.

¶ 16 Regardless, we recognize that “the waiver language contained in section 122-3 [of the

Act] has never been viewed as an ironclad bar.” Id. Therefore, we also address the merits of

defendant’s argument on appeal.

¶ 17 “To prevail on a claim of ineffective assistance of counsel, the defendant must show both

that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced

defendant such that he was deprived of a fair trial.” People v. Cordell, 223 Ill. 2d 380, 385

(2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The failure to satisfy either

the deficiency prong or the prejudice prong of the Strickland test precludes a finding of

5 ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 377 (2000). “[A] court need

not determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. “If

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ***

that course should be followed.” Id. “If the underlying issue is not meritorious, then defendant

has suffered no prejudice.” Enis, 194 Ill. 2d at 377.

¶ 18 Here, the court sentenced defendant to 10 years’ imprisonment plus a 20-year firearm

enhancement for attempted first degree murder of Angela. Defendant argues this was improper

because the jury specifically found that the State had not proved that defendant personally

discharged a firearm that proximately caused great bodily harm to Angela. Citing Apprendi, 530

U.S. at 490 (“any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt”). However, the

jury found defendant guilty of aggravated battery with a firearm of Angela, which includes a

finding that defendant discharged a firearm. Furthermore, the jury found that defendant was

guilty of attempted first degree murder of Angela. The 20-year firearm enhancement for

attempted first degree murder only requires “an attempt to commit first degree murder during

which the person personally discharged a firearm.” 720 ILCS 5/8-4(c)(1)(C) (West 2018).

Accordingly, all the facts in the firearm enhancement were submitted to the jury and proved

beyond a reasonable doubt. Therefore, defendant cannot make a substantial showing that he

suffered prejudiced. The court did not err in dismissing defendant’s postconviction petition.

¶ 19 III. CONCLUSION

¶ 20 The judgment of the circuit court of Peoria County is affirmed.

¶ 21 Affirmed.

6 ¶ 22 JUSTICE HOLDRIDGE, specially concurring:

¶ 23 While I agree with the disposition in this case, I would not reach the merits, but would

instead solely find that the defendant waived consideration of this issue as he failed to raise it in

his postconviction petition. The majority cites our supreme court in Jones, 213 Ill. 2d at 505, for

the proposition that “the waiver language contained in section 122-3 [of the Act] has never been

viewed as an ironclad bar.” Supra ¶ 16. However, further reading of that case shows that the

supreme court chastised the appellate court for excusing waiver in these instances. After a lengthy

review of the topic, the court stated:

“Our detailed discussion of this issue is intended to stress that our appellate court

is not free, as this court is under its supervisory authority, to excuse, in the context

of postconviction proceedings, an appellate waiver caused by the failure of a

defendant to include issues in his or her postconviction petition.” Id. at 508.

The court noted:

“ ‘[T]his holding does not leave a postconviction petitioner such as defendant

entirely without recourse. A defendant who fails to include an issue in his original

or amended postconviction petition, although precluded from raising the issue on

appeal from the petition’s dismissal, may raise the issue in a successive petition if

he can meet the strictures of the “cause and prejudice test.” ’ ” Id. (quoting People

v. Jones, 211 Ill. 2d 140, 148-49 (2004)).

Thus, as the defendant has waived this issue by failing to raise it in his postconviction petition,

we cannot consider the merits of the issue on appeal.