People v. Miller

913 N.E.2d 659, 393 Ill. App. 3d 629
Appellate Court of Illinois·Decided August 31, 2009·No. 1-06-3461·Published·Cited by 17 cases

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

Following a bench trial, the defendant Flynard Miller was convicted of the shooting death of Charles Fowler and the wounding of Michael Casiel. He was sentenced to 47 years in the Illinois Department of Corrections on his first degree murder conviction. After his unsuccessful direct appeal, the defendant filed an action pursuant to the Post-Conviction Hearing Act, arguing that trial and appellate counsel rendered ineffective assistance. 725 ILCS 5/122 — 1 et seq. (West 2008). Only his claim as to counsel that represented him prior to trial is before us on appeal. As to his “pretrial counsel,” the defendant claims his failure to inform him that his first degree murder charge carried a sentencing enhancement of at least 25 years deprived him of effective assistance of counsel regarding his decision to reject the plea offer. Based on the allegations in his petition, a purported plea offer of 20 years was extended more than 2V2 years before the defendant’s bench trial. The circuit court rejected the petition, finding the allegations regarding pretrial counsel to be conclusory. Because we agreed with the circuit court’s assessment of the petition’s allegations, we affirmed the circuit court in our original decision filed August 3, 2009. 1

BACKGROUND

Following a bench trial in September 2003, the defendant was found guilty of the murder of Fowler and the attempted murder and aggravated battery with a firearm of Casiel. The defendant was indicted along with Joseph Eastling. The offenses arose after a physical bumping between the defendant and Fowler at the apartment of the mother of the defendant’s child and Fowler’s girlfriend.

After the bumping, Fowler left the apartment, returning in the company of three friends, including Casiel. When Fowler reentered the apartment, the defendant and Eastling drew their weapons and began firing at Fowler. Fowler ran out of the apartment and down the stairs to exit the building, behind his three friends, who were waiting for him in the hallway. All the while, the defendant was firing his weapon. Once outside, Fowler collapsed. The defendant continued to chase Casiel and another friend, while firing his weapon. Responding police officers observed the defendant chase and fire his weapon at Casiel and others. The defendant and Eastling were arrested near the apartment building; two weapons were also recovered. Neither Fowler nor any one of his friends was armed.

The defendant testified at trial, admitting to firing his weapon, but claimed self-defense. The defendant also claimed to have fired at Fowler only to scare him. He was sentenced to consecutive prison terms of 22 years for murder, with an additional 25 years under the statutory sentencing enhancement for personally discharging a firearm that proximately caused death, followed by 6 years for attempted murder and 6 years for aggravated battery with a firearm.

On direct appeal, the defendant challenged his aggravated battery conviction, attacked the 25-year firearm sentencing enhancement, and claimed he was not properly admonished regarding his right to file a motion to reconsider his sentence. We affirmed the judgment of the circuit court, but ordered that the aggravated battery conviction and sentence be vacated because it was based on the same physical act as the attempted murder charge. People v. Miller, No. 1 — 04—0114 (2005) (unpublished order pursuant to Supreme Court Rule 23).

Thereafter, the defendant filed this pro se postconviction action alleging his pretrial attorney neglected to inform him that he was subject to a 25-year sentencing enhancement for discharging a firearm that proximately caused death, in the event he was found guilty. 730 ILCS 5/5 — 8—1(a)(1)(d) (iii) (West 2008). He attached his own affidavit that stated that he would have accepted the purported plea offer of 20 years’ imprisonment from the State made in February 2001 had his pretrial attorney informed him of the sentencing enhancement. The defendant also attached a separate affidavit in which he stated that his pretrial attorney first agreed to sign an affidavit that he “prejudice^]” him by failing to inform him that he was facing “25 years or up to a term of natural life” on the sentencing enhancement and “when the time came [for his pretrial attorney] to sign the affidavit, he refused.” We note the defendant proceeded to a bench trial in September 2003, represented by counsel other than the pretrial attorney the defendant referenced in his affidavits. The defendant also attached an affidavit from his mother stating that she would have advised the defendant to take the plea offer had she known of the sentencing enhancement. According to this affidavit, the pretrial attorney informed the defendant’s mother of a plea offer of 20 years from the State made in February 2001. The defendant’s petition additionally claimed that his appellate counsel rendered ineffective assistance based on the failure to raise other, more meritorious issues. The claim of ineffective assistance as to appellate counsel is not before us.

In October 2006, the circuit court summarily dismissed the defendant’s petition. The court found that the defendant’s claim regarding the guilty plea offer was predicated on conclusory allegations. This appeal timely followed.

ANALYSIS

In his single contention on appeal, the defendant contends his petition states a “gist” of a meritorious claim that he received ineffective assistance regarding his rejection of the State’s purported plea offer of 20 years, made more than 2Vs years before the defendant’s bench trial in September 2003. He contends he would have accepted the 20-year plea offer had defense counsel informed him that he was subject to a minimum 25-year enhancement based on committing murder with a handgun, which meant he faced a minimum sentence of 45 years if he were found guilty of murder in the shooting death of Fowler. At the time of the purported plea offer in February 2001, the defendant was represented by counsel other than trial counsel.

“The Illinois Post-Conviction Hearing Act provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both.” People v. Mahaffey, 194 Ill. 2d 154, 170, 742 N.E.2d 251 (2000), citing 725 ILCS 5/122 — 1 (West 1994). The Act outlines a three-step procedure for addressing a defendant’s postconviction petition. At the first stage, the petition’s “well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true.” People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063 (1998). If “the circuit court determines a pro se petition states the gist of a constitutional claim, the petition moves to the second stage, where counsel may be appointed if the petitioner so requests and is indigent.” People v. Richardson, 382 Ill. App. 3d 248, 252,

People v. Miller, 913 N.E.2d 659, 393 Ill. App. 3d 629 (Ill. Ct. App. 2009).

913 N.E.2d 659 (People v. Miller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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