People v. Kirkendall

2023 IL App (5th) 220158-U

• Court: Appellate Court of Illinois
• Decided: October 13, 2023
• Docket: 5-22-0158
• Status: Unpublished

Opinion

2023 IL App (5th) 220158-U NOTICE NOTICE Decision filed 10/13/23. The This order was filed under text of this decision may be NO. 5-22-0158 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition 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. 16-CF-1215 ) BRANDON KIRKENDALL, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

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

ORDER

¶1 Held: The dismissal of defendant’s postconviction petition is affirmed where defendant’s petition failed to make a substantial showing of a constitutional violation, and the defendant’s postconviction counsel provided him with reasonable assistance.

¶2 Defendant, Brandon Kirkendall, appeals the dismissal of his postconviction petition. His

court-appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), concluded

this appeal lacks merit, and on that basis, filed a motion to withdraw as counsel pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987), accompanied by a memorandum of law in support

thereof. OSAD provided notice of the filing to defendant and this court provided defendant an

opportunity to file a pro se brief, memorandum, or other document explaining why OSAD should

not be allowed to withdraw as counsel, or why this appeal had merit. Defendant filed no responsive

pleading. Having examined OSAD’s motion and the accompanying memorandum of law, as well

1 as the entire record on appeal, we conclude this appeal lacks merit. Therefore, we grant OSAD’s

motion for leave to withdraw as counsel and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 In September 2016, defendant was indicted for first-degree murder, in connection with the

shooting death of Samuel Brown in July 2016. In 2017, the cause proceeded to a jury trial in which

defendant asserted the affirmative defense of self-defense. Ultimately, the jury found him guilty

of second-degree murder. Following defendant’s conviction, the trial court ordered a presentence

investigation report (PSI).

¶5 The PSI revealed defendant had four prior felony convictions in St. Clair County including:

(1) domestic battery (case No. 11-CF-753) for which defendant was sentenced to imprisonment

for two years; (2) aggravated domestic battery (case No. 08-CF-551) for which he was sentenced

to imprisonment for four years; (3) domestic battery (case No. 07-CF-1226) for which he was

sentenced to imprisonment for one year; and (4) aggravated battery (case No. 07-CF-389) for

which defendant was originally sentenced to probation but was subsequently revoked and a short

jail term was imposed. The PSI also revealed that at the time of the instant offense, defendant was

on probation for two misdemeanor cases.

¶6 Defendant’s sentencing hearing was held on January 19, 2018. The State asked the court

to sentence defendant to 20 years based on statutory factors in aggravation, including serious harm

to the victim, defendant’s past criminal activity, and deterrence. Defendant’s trial counsel

requested the minimum sentence of four years and argued that defendant was trying to protect his

family, a similar event occurring again was unlikely, defendant could return as a contributing

member of society, and the statutory minimum sentence could not be ignored. As to the last claim,

counsel argued that another defendant convicted of a similar crime in the same jurisdiction

2 received 12 years’ incarceration. In response, the trial court stated that it believed it was improper

to consider the other case. Defense counsel disagreed, but when the court requested authority in

support of counsel’s position, counsel conceded he did not have any. Defendant provided a

statement in allocution apologizing to the victim’s family as well as his own. He further thanked

the court, his counsel, the prosecutor, and the jury for a fair trial.

¶7 Thereafter, the trial court sentenced defendant to 16 years’ imprisonment in the Illinois

Department of Corrections to be served at 50% followed by 2 years’ mandatory supervised release

(MSR). In rendering its sentence, the court noted all the factors in aggravation and mitigation and

noted “the big thing” going against defendant was his criminal history. Thereafter, the court

advised defendant of his appeal rights and defendant expressed his understanding of those rights.

¶8 Defendant, through his counsel, filed a motion to reconsider sentence. The motion alleged

that defendant orally advised counsel of his desire to appeal the sentence on January 19, 2018. The

motion further alleged that the motion was timely filed on February 15, 2018. However, the motion

was file-stamped February 28, 2018, by the St. Clair County clerk. The motion further alleged that

defendant’s sentence was excessive in violation of the eighth and fourteenth amendments in that

the sentence was inconsistent with sentences imposed on similarly situated criminals in this and

other jurisdictions. In support of this argument, counsel cited Solem v. Helm, 463 U.S. 277 (1983).

¶9 On April 2, 2018, defendant, through his counsel, filed a posttrial motion. An amended

posttrial motion was filed on April 17, 2018, and a second amended posttrial motion was filed on

July 11, 2018. At a hearing on September 5, 2018, the court found the State waived the objections

to timeliness. The State argued that the issue was not notice, it was jurisdiction. When queried by

the court, defense counsel conceded he had no evidence that the motion to reconsider sentence was

filed on February 15, 2018. The State argued, pursuant to People v. Segoviano, 189 Ill. 2d 228

3 (2000), that the 30-day filing requirement was mandatory. The trial court admonished the State for

its late presentation of the relevant case law and continued the hearing. The written order required

the State to file its formal responses to defendant’s pleadings and set the matter for hearing on

October 4, 2018.

¶ 10 On September 28, 2018, the State filed a motion to dismiss defendant’s motion to

reconsider sentence and second amended posttrial motion, on the ground of untimeliness and the

lack of subject matter jurisdiction. After a hearing on October 4, 2018, the court issued an order

granting the State’s motion to dismiss.

¶ 11 Defendant appealed, and OSAD was appointed to represent him. Having concluded the

appeal was without merit, OSAD filed a motion to withdraw as counsel pursuant to Anders v.

California, 386 U.S. 738 (1967). On October 6, 2020, this court granted OSAD’s motion to

withdraw as counsel and affirmed the judgment of the circuit court. This court found that the circuit

court lost subject matter jurisdiction due to the untimely filed motion. People v. Kirkendall, No.

5-19-0118, ¶ 4 (2020) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 12 In the interim, on August 13, 2020, defendant filed a pro se motion to reduce sentence. The

motion alleged that he should be released so he could be of service to others, noted the difficulties

of his incarceration on his daughter and legally blind mother, and claimed he was rehabilitated

based on his ability to obtain his GED certificate and maintain a job while incarcerated. On

September 18, 2020, the circuit court noted that more than two years elapsed from the imposition

of defendant’s sentence to the filing of his latest motion to reduce and denied defendant’s motion

on the basis of untimeliness. No appeal was taken from that order.

¶ 13 On October 12, 2020, defendant filed a pro se petition for postconviction relief. The

petition alleged that defendant’s trial counsel provided ineffective assistance as evidenced by his

4 failure to timely file the motion for reduction of sentence, defendant’s sentence was inconsistent

with sentences imposed on similarly situated criminals in that jurisdiction, the State failed to prove

guilt beyond a reasonable doubt, and a sundry of other errors. On October 23, 2020, the circuit

court found defendant presented the gist of a constitutional claim, advanced the petition to the

second stage of postconviction proceedings, and appointed postconviction counsel.

¶ 14 On December 15, 2021, following numerous COVID-related delays, postconviction

counsel filed an amended postconviction petition. The amended petition claimed: (1) defendant’s

sentence was “disproportionately severe” when compared to other sentences for second-degree

murder “in this jurisdiction,” and (2) defendant’s trial counsel provided ineffective assistance by

failing to timely file the motion to reduce sentence. Defendant sought vacatur of his sentence and

a new sentencing hearing. The amended petition was accompanied by numerous exhibits,

consisting mainly of sentencing orders entered in unrelated second-degree murder cases listing

prison sentences ranging from 48 months’ probation to 14 years’ incarceration. The amended

postconviction petition also contained postconviction counsel’s certificate of compliance with

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

¶ 15 On January 11, 2022, the State moved to dismiss the amended postconviction petition. The

State argued that defendant’s first claim lacked merit pursuant to People v. Fern, 189 Ill. 2d 48

(1999), and defendant’s second claim had no merit because defendant could not show that his trial

counsel’s allegedly unprofessional error prejudiced him. On March 2, 2022, the circuit court

entered an order granting the State’s motion to dismiss.

5 ¶ 16 ANALYSIS

¶ 17 Defendant appeals from the circuit court’s order granting the State’s motion to dismiss

defendant’s amended petition for postconviction relief. His court-appointed appellate attorney,

OSAD, moved to withdraw as counsel claiming the appeal is without merit.

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

a method by which a criminal defendant who is serving his sentence may assert that his conviction

resulted from a substantial violation of his federal or state constitutional rights. Id. § 122-1(a)(1);

People v. Smith, 2015 IL 116572, ¶ 9. A defendant initiates a proceeding under the Act by filing a

petition in the circuit court. 725 ILCS 5/122-1(b) (West 2020). At this stage, the circuit court

determines whether it should summarily dismiss defendant’s petition as frivolous or patently

without merit (id. § 122-2.1(a)(2)). If the petition is not frivolous, the court dockets the petition for

further consideration at the second stage proceedings. (id. §§ 122-2.1(b), 122-5).

¶ 19 “At the second stage proceedings, all well-pleaded facts that are not positively rebutted by

the trial record are to be taken as true ***.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006). When

the circuit court dismisses a postconviction petition at the second stage, our review is de novo.

People v. Parada, 2020 IL App (1st) 161987, ¶ 18 (citing Pendleton, 223 Ill. 2d at 473).

¶ 20 Postconviction counsel’s amended petition provided two issues. The first claimed that

defendant’s sentence was disproportionate to other sentences imposed in the same jurisdiction for

the same offense and therefore violated the eighth amendment to the United States and Illinois

Constitutions. OSAD argues that our supreme court explicitly rejected the very same argument in

People v. Fern, 189 Ill. 2d 48, 62 (1999).

¶ 21 In Fern, the issue was “whether the propriety of a criminal sentence may be judged by

comparing it to the sentences imposed on defendants in other cases.” Id. at 51. The defendant in

6 Fern argued that “his sentence was excessive when compared to the sentences imposed on

defendants in other cases for the same or more serious drug offenses.” Id. Our supreme court held

that “the excessiveness of a sentence may not be determined from a consideration of the sentences

imposed on defendants in separate, unrelated cases.” Id. “The fact that a lesser sentence was

imposed in another case has no bearing on whether the sentence in the case at hand is excessive

on the facts of that case.” (Emphasis in original.) Id. at 56. Accordingly, we agree Fern precludes

the postconviction relief requested by defendant.

¶ 22 Defendant’s second postconviction issue contended that his trial counsel was ineffective

as evidenced by his failure to timely file defendant’s motion to reconsider sentence. In order to

show that defendant was denied his constitutional right to effective counsel, he must show that

(1) counsel’s performance was deficient and (2) the deficient performance prejudiced defendant.

Strickland v. Washington, 466 U.S. 668, 687-94 (1984); see People v. Albanese, 104 Ill. 2d 504

(1984) (adopting Strickland). “More specifically, a defendant must show that counsel’s

performance was objectively unreasonable under prevailing professional norms and that there is a

‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’ ” People v. Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland, 466

U.S. at 694). A defendant can only prevail on his ineffective assistance claim if both cause and

prejudice are shown. People v. Coleman, 183 Ill. 2d 366, 397 (1998).

¶ 23 Here, OSAD contends that even if cause is shown by trial counsel’s failure to timely file

the motion to reduce defendant’s sentence, no prejudice can be shown because there is no

reasonable probability that timely filing the postsentencing motion would have improved the

outcome for defendant. Defendant was found guilty of second-degree murder, a Class 1 felony

(720 ILCS 5/9-2(d) (West 2016)) punishable by imprisonment for 4 to 20 years (730 ILCS 5/5-

7 4.5-30(a) (West 2016)). Defendant’s 16-year sentence was within this statutory range. A sentence

within the statutory range is presumed proper. See People v. Knox, 2014 IL App (1st) 120349,

¶ 47. Further, the argument raised in trial counsel’s untimely postsentencing motion was initially

presented and found improper by the trial court at the sentencing hearing and had no more merit

in the later-filed motion because the argument was precluded by Fern. As such, no prejudice can

be shown. We agree that no meritorious argument could be raised to claim the trial court erred in

finding defendant’s postconviction petition failed to make a substantial showing of a constitutional

violation and dismissing defendant’s petition.

¶ 24 The remaining potential issue raised by OSAD was whether postconviction counsel

complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The right to counsel in

postconviction proceedings is wholly statutory. People v. Lander, 215 Ill. 2d 577, 583 (2005).

Under the Act, a “reasonable” level of assistance is required. Pendleton, 223 Ill. 2d at 472. To

assure reasonable assistance required by the Act is met, Rule 651(c) imposes specific duties on

postconviction counsel. People v. Turner, 187 Ill. 2d 406, 410 (1999). Rule 651(c) requires counsel

to file a certificate stating that he “has consulted with [the defendant] by phone, mail, electronic

means or in person to ascertain his or her contentions of deprivation of constitutional rights, has

examined the record of the proceedings at the trial, and has made any amendments to the petitions

filed pro se that are necessary for an adequate presentation of [the defendant’s] contentions.” Ill.

S. Ct. R. 651(c) (eff. July 1, 2017). Filing a certificate under Rule 651(c) creates a rebuttable

presumption that the defendant received reasonable assistance. People v. Smith, 2022 IL 126940,

¶ 29.

¶ 25 Here, postconviction counsel’s certificate of compliance stated counsel “consulted with

defendant/petitioner by phone, mail, and in person to ascertain his contentions of deprivation of

8 constitutional rights,” “examined the record of the proceedings,” and “made any amendments to

the petition filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

OSAD argues that while the certificate did not recite the language in Rule 651(c) verbatim

regarding the record examination requirement, the actual certificate language was “broader than

that required by Rule 651(c).” OSAD argues this was “reasonable” because it reflected the fact

that counsel “would have needed to review both the trial and sentencing transcripts in order to

adequately consider and present [the defendant’s] claims, which alleged both trial and sentencing

errors.”

¶ 26 “Rule 651(c) only requires postconviction counsel to examine as much of the record ‘as is

necessary to adequately present and support those constitutional claims raised by the petitioner.’ ”

Pendleton, 223 Ill. 2d at 475 (quoting People v. Davis, 156 Ill. 2d 149, 164 (1993)). Here,

defendant’s pro se postconviction petition alleged errors stemming from both the trial and

sentencing hearings. As such, a question of whether counsel reviewed the sentencing hearing

transcripts would have arisen if he had used the exact language provided in Rule 651(c).

Accordingly, we decline to find the certificate facially invalid where, as here, counsel was required

to review the record of the proceedings in both the trial and sentencing.

¶ 27 Counsel therefore filed a facially valid certificate, creating a rebuttable presumption of

reasonable assistance, and we find nothing in the record rebutting said presumption. As such, we

hold that no meritorious argument can be presented regarding postconviction counsel’s compliance

with Rule 651(c) or that he provided unreasonable assistance.

9 ¶ 28 CONCLUSION

¶ 29 The circuit court did not err in dismissing defendant’s postconviction petition and no

argument to the contrary would have substantial merit. As such, we grant OSAD leave to withdraw

as counsel and affirm the judgment of the circuit court.

¶ 30 Motion granted; judgment affirmed.