People v. McKee

2022 IL App (3d) 190656-U

• Court: Appellate Court of Illinois
• Decided: June 2, 2022
• Docket: 3-19-0656
• Status: Unpublished

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) 190656-U

Order filed June 2, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0656 v. ) Circuit No. 13-CF-100 ) BETHANY L. McKEE, ) Honorable ) Sarah-Marie F. Jones, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices Daugherity and McDade concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court erred when it summarily dismissed defendant’s postconviction petition.

¶2 Defendant, Bethany L. McKee, appeals from the Will County circuit court’s summary

dismissal of her postconviction petition. Defendant argues the court erroneously dismissed her

petition because it presented the gist of claims of ineffective assistance of trial and appellate

counsel. We reverse and remand for second-stage proceedings. ¶3 I. BACKGROUND

¶4 On April 25, 2013, the State charged defendant and codefendants, Adam Landerman, Alisa

Massaro, and Joshua Miner, by superseding indictment with six counts of first degree murder (720

ILCS 5/9-1(a)(1) (West 2012)) related to the deaths of Eric Glover and Terrance Rankins. The

matter proceeded to a bench trial.

¶5 The evidence adduced at trial showed that on January 9, 2013, defendant lived at Massaro’s

residence. That evening, Miner and Landerman were also at the residence. The group discussed

how to obtain money for alcohol and cigarettes. Rankins had contacted defendant to hang out with

him and Glover. Defendant told the others that she knew Rankins always carried a large amount

of cash, and they began planning to rob Rankins and Glover. Miner offered to beat up, kill, and

steal from Rankins and Glover. Landerman agreed to help. The group established a signal to

indicate when Massaro and defendant should leave the room so Miner and Landerman could

execute the plan. Defendant invited Rankins and Glover to the residence. Defendant went along

with the plan but did not believe that anything would happen.

¶6 When Rankins and Glover arrived, they drank alcohol and played video games with the

group. Later, when Miner gave the signal, defendant and Massaro left the room. When the noise

emanating from that room became louder, Massaro went to tell Miner and Landerman to quiet

down and found the door locked. Massaro heard Miner say, “die, die.” Defendant and Massaro left

the residence. When they returned, Rankins and Glover were found dead in the room.

¶7 Miner gave defendant money recovered from Rankins’s and Glover’s bodies. Defendant

purchased gas with the money. Defendant also searched Glover’s vehicle and took several items.

With the remaining money, the group purchased cigarettes and cocaine. When they returned to the

2 residence, they used the cocaine and battered Rankins’s and Glover’s bodies by kicking and hitting

them with an empty liquor bottle.

¶8 The following day, the group discussed how to dispose of the bodies. Defendant suggested

they contact her father, and the group agreed. Defendant’s father called the police to report the

deaths. At the scene, officers initially spoke with Massaro and later located Miner and Landerman

hiding in the residence. The police also discovered the bodies of Glover and Rankins. Miner

informed the police that he and Landerman had killed Rankins and Glover.

¶9 The court found defendant guilty of the first degree murders of Rankins and Glover under

an accountability theory.

¶ 10 On November 4, 2014, a sentencing hearing revealed that defendant was 18 years old at

the time of the offense. She had been sexually assaulted when she was 14 years old, and the

perpetrator had cut her face and chest with a knife over 200 times. Also, when defendant was 14

years old, she went missing for two weeks. It was later revealed that defendant had been forced

into prostitution, drugged, and beaten. Defendant suffered from depression, bipolar disorder,

attention deficit hyperactivity disorder, posttraumatic stress disorder, and had a history of self-

mutilation. Defendant had been hospitalized nine times for her mental health issues and took

medication that had been ineffective in treating her issues.

¶ 11 Trial counsel argued that defendant’s mandatory life sentence was unconstitutional as

applied to defendant due to her being only an accomplice. Counsel did not argue the emerging

science regarding the brain development of young adults and how that science would apply to

defendant’s particular circumstances. The court noted that the mandatory life sentence under the

accomplice theory was problematic but that it did not have discretion regarding defendant’s

sentence. The court sentenced defendant to life imprisonment. Defendant appealed.

3 ¶ 12 On appeal, we affirmed defendant’s sentence, finding that it was constitutional as applied

to young adult accomplices. People v. McKee, 2017 IL App (3d) 140881, ¶ 38. Specifically, we

found that defendant’s case was factually distinguishable from People v. House, 2015 IL App (1st)

110580, in that defendant actively participated in the planning of the murder and disposal of the

bodies. McKee, 2017 IL App (3d) 140881, ¶ 29. We further found that defendant failed to present

any evidence regarding the science of juvenile development as it applied to her particular

circumstances, which left the question of whether her experiences and diagnoses affected her

maturity at the time of the offense. Id. ¶¶ 34-35. Ultimately, we concluded that defendant’s

sentence did not “shock the moral conscience of the community,” and thus, was constitutional. Id.

¶ 36.

¶ 13 Defendant filed the present postconviction petition as a self-represented litigant alleging,

inter alia, trial counsel was ineffective for failing to investigate and present (1) evidence at

sentencing of defendant’s autism spectrum disorder, psychological capacity, severe trauma, and

the combined effects on defendant’s development as an emerging adult to support defendant’s as-

applied constitutional challenge, and (2) defendant’s autism spectrum disorder and psychological

capacity at trial to contest the intent element of first degree murder. Defendant also alleged the

ineffective assistance of appellate counsel for failing to raise disparate sentence and sufficiency of

the evidence challenges on appeal. In the petition, defendant presented evidence of her mental

health evaluation showing that she had been diagnosed with an autism spectrum disorder that

would have been present throughout defendant’s life and affected her ability to understand and

participate in social situations. Specifically, the autism spectrum disorder would have caused

defendant to have difficulty processing language and have spontaneous social responses, be

4 socially naïve, mimic other individuals’ characteristics and mannerisms, and be easily

manipulated. The court summarily dismissed the petition. Defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 Defendant argues that the circuit court erroneously dismissed her postconviction petition

because it presented the gist of a constitutional claim for ineffective assistance of trial and appellate

counsel.

¶ 16 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) provides a

process for a criminal defendant to 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 first stage, defendant need only state the “gist” of a constitutional

claim. Id. The first stage of postconviction proceedings “presents a ‘low threshold’ [citation],

requiring only that the petitioner plead sufficient facts to assert an arguably constitutional claim.”

People v. Brown, 236 Ill. 2d 175, 184 (2010) (quoting People v. Jones, 211 Ill. 2d 140, 144 (2004)).

“A petitioner need present only a limited amount of detail and is not required to include legal

argument or citation to legal authority.” Id. The circuit court may summarily dismiss the petition

at the first stage of proceedings if it is frivolous or patently without merit, such that it “has no

arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16. “A petition which lacks an

arguable basis either in law or in fact is one which is based on an indisputably meritless legal

theory or a fanciful factual allegation.” Id. When defendants act as self-represented litigants,

“courts should review their petitions ‘with a lenient eye, allowing borderline cases to proceed.’ ”

Id. at 21 (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983)).

5 ¶ 17 To warrant second-stage proceedings, defendant’s petition must show that “(i) it is arguable

that counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable

that the defendant was prejudiced.” Id. at 17.

¶ 18 In the present case, defendant’s petition made an arguable showing of deficient

performance and prejudice. Regarding deficient performance, at the time of defendant’s sentencing

hearing, trial counsel had a record of defendant’s age and her social and psychological history.

Given this history and the facts of this case, counsel arguably should have further investigated

defendant’s mental health and further presented these issues to the court during the sentencing

hearing. Nevertheless, trial counsel did not do so. Trial counsel also did not mount a constitutional

challenge to defendant’s life sentence based on defendant’s young age, minimal participation in

the offense, and diminished mental capacity, similar to People v. Thompson, 2014 IL App (1st)

121729-U, ¶ 12 and People v. Miller, 202 Ill. 2d 328, 340-43 (2002).

¶ 19 Regarding prejudice, as illustrated by our supreme court’s recent decision in People v.

House, 2021 IL 125124, ¶ 31 (finding that a determination on whether defendant’s natural life

sentence violated the proportionate penalties clause was inappropriate without a developed record

or factual findings on an as-applied constitutional challenge at the circuit court), a challenge to

defendant’s life sentence on the ground that her young age and intellectual issues would warrant

further investigation and could have changed the outcome of defendant’s as-applied challenge to

her sentence.

¶ 20 The State argues defendant’s claim is barred by res judicata because defendant raised a

similar claim on direct appeal. However, on direct appeal, we made no ruling on defendant’s as-

applied constitutional challenge that argued the court should have considered her juvenile brain

development at sentencing. McKee, 2017 IL App (3d) 140881, ¶ 34; see, e.g., People v. Davis,

6 2014 IL 115595, ¶ 13 (“issues that were raised and decided on direct appeal are barred from

consideration by the doctrine of res judicata”). Even if there had been a ruling, defendant’s present

ineffective assistance of trial counsel claim is sufficiently distinguishable from her as-applied

constitutional challenge presented in McKee, 2017 IL App (3d) 140881, ¶¶ 24, 30, as it relies on

facts that were not apparent in the record on direct appeal. See People v. Barrow, 195 Ill. 2d 506,

528 (2001) (“This court will relax the doctrine of res judicata when the evidence relating to the

claim does not appear on the face of the original appellate record.”); see also People v. West, 187

Ill. 2d 418, 427 (1999) (“default may not preclude an ineffective-assistance claim for what trial

counsel allegedly ought to have done in presenting a defense”). To the extent that the State argues

this issue was forfeited, we note that defendant’s claim relies on new evidence that could not

necessarily have been brought forth on direct appeal See, e.g., House, 2021 IL 125124, ¶¶ 22, 31;

see also People v. Veach, 2017 IL 120649, ¶ 47 (Forfeiture does not “preclude a defendant from

raising an issue on collateral review that depended upon facts not found in the record”). Therefore,

postconviction proceedings are more appropriate than direct appeal when resolving an ineffective

assistance of counsel claim that has an insufficient or inadequate record on appeal, as is presented

in this case. See Veach, 2017 IL 120649, ¶ 46.

¶ 21 Accordingly, we find that defendant’s petition meets the low first-stage threshold as it

presents an arguable claim of ineffective assistance of counsel. We take no position on whether an

actual constitutional violation occurred as defendant need only present the gist of a claim at the

first stage. We need not address defendant’s remaining two postconviction claims, as her first

claim warrants further proceedings and partial dismissals are not permitted at the first stage. See

People v. Rivera, 198 Ill. 2d 364, 374 (2001).

¶ 22 III. CONCLUSION

7 ¶ 23 The judgment of the circuit court of Will County is reversed and remanded for second-

stage postconviction proceedings.

¶ 24 Reversed and remanded with directions.