People v. McFadden

2024 IL App (4th) 230408-U

• Court: Appellate Court of Illinois
• Decided: April 22, 2024
• Docket: 4-23-0408
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230408-U This Order was filed under FILED NO. 4-23-0408 April 22, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County JAMAIN L. McFADDEN, ) No. 18CF609 Defendant-Appellant. ) ) Honorable ) Brendan A. Maher, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Lannerd and DeArmond concurred in the judgment.

ORDER ¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw as appellate counsel and affirmed the circuit court’s judgment, concluding no issue of arguable merit could be raised on appeal.

¶2 Defendant, Jamain L. McFadden, appeals from the circuit court’s judgment

summarily dismissing his postconviction petition. On appeal, defendant’s appointed counsel, the

Office of the State Appellate Defender (OSAD), moves to withdraw on the ground no issue of

arguable merit can be raised. For the reasons that follow, we grant OSAD’s motion and affirm the

court’s judgment.

¶3 I. BACKGROUND

¶4 In April 2018, the State charged defendant with aggravated discharge of a firearm

(720 ILCS 5/24-1.2(a)(2) (West 2018)), unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(2) (West 2018)), aggravated unlawful use of a weapon (720 ILCS 5/24-

1.6(a)(2) (West 2018)), unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2018)),

possession of a firearm without a valid Firearm Owner’s Identification (FOID) card (430 ILCS

65/2(a)(1) (West 2018)), and resisting a peace officer (720 ILCS 5/31-1(a) (West 2018)).

¶5 In April 2019, defendant, through defense counsel, filed an answer to discovery

alleging he acted in self-defense.

¶6 In November 2019, defendant entered an open plea of guilty to aggravated

discharge of a firearm. In exchange for defendant’s plea, the State dismissed the other charges

against defendant. As a factual basis for the plea, the parties stipulated to the following:

“On March 18th, 2018, several police agencies responded to

call of shots fired at [CherryVale] Mall outside of Barnes and Noble.

Witnesses advised that a black male was seen running from the area

towards Kegel’s Harley Davidson, Cherry Valley Police Officers

observed a black male wearing a white t-shirt running near the

vacant MC Sports building and Kegel’s and they pursued the male

on foot.

Officers order[ed] the male to the ground and he complied,

but he put his hands underneath his body towards the front waist

area of his pants. After securing the male, officers found a Taurus

9mm handgun with the slide locked back in his waistband which did

not have any ammunition in the magazine. The male was identified

as this defendant, [defendant].

-2- Witnesses told officers that a black male wearing a white t-

shirt and a half zipped black jacket had exited the bookstore with a

black handgun and began shooting at a grey minivan parked in front

of Barnes and Noble. Witnesses told officers that after the shooting,

the black male ran toward the front of Granite City restaurant.

Officers conducted a K-9 article search and found a black

zip-up hoodie and a baseball hat in the area [defendant] had run

from. [Defendant] was transported to the hospital due to trouble

breathing. At the hospital [defendant] voluntarily stated it was only

a matter of time before he was caught with a gun again. [Defendant]

also told medical staff that he had run from the front of the mall to

where the cops had caught him.

Surveillance footage from [CherryVale] Mall showed

[defendant] exit Barnes and Noble holding a gun. Footage also

showed [defendant] shooting and striking a silver minivan type of

vehicle and then running off toward the Granite City area.

[Defendant] did not have a valid FOID card and was a convicted

felon having been convicted of aggravated unlawful use of weapons

in Winnebago County case [No.] 17[-]CF[-]388. All of these events

occurred in Winnebago Count [sic] in the state of Illinois.”

At the plea hearing, defense counsel noted his intent to present mitigating evidence at the

sentencing hearing “involving the alleged victim who *** also was sentenced in this case.”

-3- ¶7 Over a three-day period between January and March 2020, the circuit court

conducted a sentencing hearing. The court received testimony from Detective Mike Rach.

Detective Rach responded to a shooting at CherryVale Mall on March 18, 2018. Detective Rach

collected surveillance video from the mall. Clips from the surveillance video were played for the

court. The video showed defendant outside the Barnes and Noble, raising his arm and firing a

handgun at a silver-colored vehicle parked in the parking lot. The video also shows Marchello

Johnson firing a gun from inside the silver vehicle. Detective Rach, on examination by defense

counsel, agreed the shootings occurred “virtually simultaneously.” Johnson, as acknowledged by

defense counsel, was charged for the shooting, went to trial, and was convicted prior to defendant’s

guilty plea. The State, in making a sentencing recommendation, asserted the evidence suggested

defendant fired before Johnson. The court sentenced defendant to 10 years in prison. In reaching

its decision, the court agreed with the State that the evidence suggested defendant shot first but

found, regardless, the shootings occurred “almost simultaneously,” and “the point is *** they are

both shooting at people in an open mall.”

¶8 In April 2020, defendant filed a motion to reconsider the sentence, which he later

amended. Following a May 2020 hearing, the circuit court denied defendant’s motion, and

defendant appealed. The Second District affirmed on direct appeal. People v. McFadden, 2021 IL

App (2d) 200325-U.

¶9 On January 17, 2023, defendant filed a pro se postconviction petition. In the

petition, defendant raised a claim of actual innocence based on newly discovered evidence.

Specifically, defendant alleged he was actually innocent of the charge to which he pleaded guilty

because he acted in self-defense after Johnson shot first. In support of his claim, defendant relied

upon transcripts from Johnson’s trial, which he asserted was evidence not made available to him

-4- at the time of his guilty plea. Defendant acknowledged Johnson’s trial was held before his guilty

plea and his counsel was aware of that fact. As part of his claim, defendant also complained about

the State’s pursuit of contradictory theories at his sentencing hearing and at Johnson’s trial

concerning who shot first. Defendant further asserted, had the State presented the transcripts from

Johnson’s trial to the circuit court prior to his guilty plea, the court would have rejected the plea.

¶ 10 On March 2, 2023, the circuit court entered a written order summarily dismissing

defendant’s pro se postconviction petition, finding it to be frivolous and patently without merit.

¶ 11 On April 3, 2023, defendant filed a pro se motion to reconsider the summary

dismissal of his postconviction petition. In the motion, defendant argued the State’s pursuit of

contradictory theories at his sentencing hearing and at Johnson’s trial violated his due process

rights. Defendant also argued plea counsel was ineffective for failing to discover the State had

theorized at Johnson’s trial that Johnson fired first.

¶ 12 On April 18, 2023, the circuit court entered a written order denying defendant’s

motion to reconsider. Thereafter, defendant filed a timely notice of appeal, and OSAD was

appointed to represent defendant.

¶ 13 II. ANALYSIS

¶ 14 On appeal, OSAD moves to withdraw as counsel on the ground no issue of arguable

merit can be raised. Defendant has not filed a response to OSAD’s motion.

¶ 15 A. The Post-Conviction Hearing Act

¶ 16 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022))

provides a “statutory procedure by which a defendant can pursue a claim that his conviction or

sentence was based on a substantial denial of his constitutional rights.” People v. Clark, 2023 IL

127273, ¶ 38, 216 N.E.3d 855; see 725 ILCS 5/122-1(a)(1) (West 2022). The Act generally

-5- contemplates three stages. People v. Johnson, 2021 IL 125738, ¶ 24, 182 N.E.3d 728. Where, as

here, a postconviction petition is summarily dismissed at the first stage, that dismissal is reviewed

de novo. People v. Hommerson, 2014 IL 115638, ¶ 6, 4 N.E.3d 58.

¶ 17 B. Procedural Challenge

¶ 18 OSAD indicates it considered raising a procedural challenge to the circuit court’s

summary dismissal of defendant’s postconviction petition but concluded any argument in support

thereof would be frivolous.

¶ 19 At the first stage of postconviction proceedings, a circuit court may summarily

dismiss a postconviction petition so long as it does so within 90 days of its filing. 725 ILCS

5/122-2.1(a)(2) (West 2022); Johnson, 2021 IL 125738, ¶ 24. A defendant may, furthermore, file

a motion to reconsider the summary dismissal of a postconviction petition so long as the motion

is filed within 30 days of the dismissal. People v. Dominguez, 366 Ill. App. 3d 468, 472, 851

N.E.2d 894, 899 (2006).

¶ 20 In this case, the circuit court summarily dismissed defendant’s pro se

postconviction petition on March 2, 2023, within 90 days of its January 17, 2023, filing. Defendant,

thereafter, filed a timely motion to reconsider the summary dismissal on April 3, 2023, which the

court later considered and denied. On this record, we agree any argument raising a procedural

challenge to the court’s dismissal of defendant’s postconviction petition would be frivolous.

¶ 21 C. Substantive Challenge

¶ 22 OSAD indicates it also considered raising a substantive challenge to the circuit

court’s summary dismissal of defendant’s postconviction petition but concluded any argument in

support thereof would be frivolous.

-6- ¶ 23 At the first stage of postconviction proceedings, a circuit court may summarily

dismiss a postconviction petition if it determines the petition is frivolous or patently without merit,

meaning “it has no arguable basis either in law or in fact.” (Internal quotation marks omitted.)

Johnson, 2021 IL 125738, ¶ 26; see 725 ILCS 5/122-2.1(a)(2) (West 2022). In considering a

petition at this stage, all allegations in the petition must be liberally construed and accepted as true

unless they are positively rebutted by the record. Johnson, 2021 IL 125738, ¶ 25.

¶ 24 OSAD concluded defendant did not present an arguable claim of actual innocence

based upon newly discovered evidence. We agree. A postconviction claim of actual innocence

requires supporting evidence that is, amongst other things, newly discovered. People v. Robinson,

2020 IL 123849, ¶ 47, 181 N.E.3d 37. Newly discovered evidence has been defined as “evidence

that was discovered after trial and that the [defendant] could not have discovered earlier through

the exercise of due diligence.” Robinson, 2020 IL 123849, ¶ 47. The supporting evidence identified

by defendant in this case, the transcripts from Johnson’s trial, do not constitute newly discovered

evidence. Defendant and his plea counsel were aware of Johnson’s trial prior to the guilty plea

and, therefore, they could have discovered the transcripts of that proceeding sooner through the

exercise of due diligence. Absent newly discovered evidence, defendant’s claim fails.

¶ 25 OSAD concluded defendant did not present an arguable due process claim based

upon the State’s failure to make the transcripts from Johnson’s trial available to the defense. We

agree. A due process claim based upon the State’s failure to disclose evidence requires supporting

evidence that is, amongst other things, suppressed by the State. People v. Beaman, 229 Ill. 2d 56,

73-74, 890 N.E.2d 500, 510 (2008). The supporting evidence in this case, the transcripts from

Johnson’s trial, was not suppressed by the State. To the contrary, the record shows the State made

-7- the defense aware Johnson had been found guilty prior to the entry of the judgment against

defendant. Absent evidence suppressed by the State, defendant’s claim fails.

¶ 26 OSAD concluded defendant did not present an arguable due process claim based

upon the State pursuing contradictory theories at his sentencing hearing and at Johnson’s trial

concerning who shot first. We agree. “The mere fact that the State argued for different inferences

in different cases does not make either argument so unfair that it violates the Due Process Clause.”

Stumpf v. Robinson, 722 F.3d 739, 750 (6th Cir. 2013). The State, here, argued different inferences

based on the same video evidence. Furthermore, the circuit court concluded it ultimately did not

matter who fired the first shot. Without more, defendant’s claim fails.

¶ 27 OSAD concluded defendant did not present an arguable claim of ineffective

assistance based upon plea counsel failing to discover the State had theorized at Johnson’s trial

that Johnson fired first. We agree. Initially, we note the allegations in defendant’s petition, liberally

construed, do not suggest a claim of ineffective assistance. See 725 ILCS 5/122-3 (West 2022)

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

petition is [forfeited].”) In any event, defendant must have been arguably prejudiced by plea

counsel’s alleged deficient performance for his claim to survive summary dismissal. People v.

Brown, 236 Ill. 2d 175, 185, 923 N.E.2d 748, 754 (2010). Prior to defendant’s guilty plea, the

defense pursued a theory of self-defense. In addition, the defense was aware of the video evidence

showing shots being fired virtually simultaneously. Still, defendant decided to plead guilty. We

cannot say, therefore, defendant was arguably prejudiced by counsel’s alleged failure to discover

the State had theorized at Johnson’s trial that Johnson fired first. Absent arguable prejudice,

defendant’s claim fails.

-8- ¶ 28 On this record, we agree any argument raising a substantive challenge to the circuit

court’s summary dismissal of defendant’s postconviction petition would be frivolous.

¶ 29 III. CONCLUSION

¶ 30 Because the record reveals no issue of arguable merit can be raised on appeal, we

grant OSAD’s motion to withdraw and affirm the circuit court’s judgment.

¶ 31 Affirmed.

-9-