People v. Nichols

2021 IL App (3d) 190714-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).

2021 IL App (3d) 190714-U

Order filed December 15, 2021 ____________________________________________________________________________

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. 3-19-0714 v. ) Circuit No. 17-CF-271 ) KEYSHAWN D. NICHOLS, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court. Justices Hauptman and Holdridge concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not err in dismissing defendant’s postconviction petition at the first stage where: (1) defendant failed to establish that the court improperly considered his youth at sentencing, (2) defendant forfeited his claim of ineffective assistance of plea counsel, and (3) the court did not exhibit bias.

¶2 Defendant, Keyshawn D. Nichols, appeals from the Peoria County circuit court’s

summary dismissal of his postconviction petition. Defendant argues the court erroneously

dismissed his petition because: (1) it established the gist of a constitutional claim regarding the

court’s failure to consider his youth as a factor in mitigation at sentencing, (2) it established that plea counsel’s ineffective assistance rendered his plea unknowing and involuntary, and (3) the

court exhibited bias. We affirm.

¶3 I. BACKGROUND

¶4 On April 26, 2017, the State charged defendant with two counts of armed robbery (720

ILCS 5/18(a)(2), (b) (West 2016)), Class X felonies, three counts of home invasion (id. § 19-

6(a)(3), (a)(2), (c)), Class X felonies, one count of unlawful possession of a stolen motor vehicle

(625 ILCS 5/4-103(a)(1), (b) (West 2016)), a Class 2 felony, and one count of aggravated battery

(720 ILCS 5/12-3.05(a)(1), (h) (West 2016)), a Class 3 felony.

¶5 On May 29, 2018, pursuant to a partially negotiated plea agreement, defendant pled

guilty to one count of home invasion, a Class X felony. The indictment alleged that on January

17, 2017, defendant, “knowingly and without authority, entered the dwelling of Bobby Sutton

*** having reason to know one or more persons were present within that dwelling and

intentionally caused injury to Bobby *** by striking him while Bobby *** was located within

said dwelling.” Pursuant to the parties’ agreement, the State dismissed the remaining counts and

capped its sentence request to 30 years’ imprisonment. The parties agreed that defendant was

eligible to serve his sentence at 85%. Defendant confirmed that he understood the plea

agreement.

¶6 Before accepting defendant’s plea, the court told defendant:

“Let me just repeat that for you, [defendant], to confirm you understand what

we’re doing. In exchange for pleading guilty to Count 5, a Class X felony of

home invasion which would ordinarily carry a sentencing range of a minimum of

6 years in the Department of Corrections [(DOC)] up to a maximum of 60 years

2 in the [DOC] given the victim’s age in the case, you instead will be eligible for

only a 6 year minimum up to a cap of a 30 year maximum in the [DOC].

Any such DOC time will be served at an 85 percent rate. ***

You would also have to serve a period of three years of mandatory

supervised released [(MSR)] ***.”

The court explained that had defendant proceeded to trial on all charges, he would have faced a

far greater sentence due to the multiple Class X felony charges. Defendant indicated that he

understood and agreed to the terms of the plea agreement. The court continued, “Do you have

any questions with regard to the sentencing ranges that would exist if you were found guilty at

trial or the ones that will, in fact, be in play at your sentencing hearing ***?” Defendant

confirmed that plea counsel informed him about the sentencing possibilities and that he had no

questions.

¶7 In its factual basis, the State indicated that on the evening of January 17, 2017, Bobby

and Victoria Sutton, and Gregory Lee, were at the Sutton residence. A man knocked on the door

and Lee exited the residence. Later, several men entered the residence. One of the individuals

restrained Lee when they entered. Lee was beaten about his head. Several individuals confronted

Bobby and Victoria. One individual struck Bobby with a weapon causing great bodily harm. The

individuals stole Bobby and Victoria’s vehicle. The next morning, police located the vehicle.

Defendant was inside the vehicle and attempted to flee. Testing revealed that blood found on

defendant’s sweatshirt and shoes belonged to Lee.

¶8 Before the July 18, 2018, sentencing hearing, the court admonished defendant that he

would serve his sentence at 85%, followed by a three-year term of MSR. At the hearing, counsel

argued that defendant was “very young” and did not have a criminal history prior to the current

3 offense. In their sentencing arguments, both the State and counsel noted that defendant’s

sentence would be served at 85%.

¶9 In its ruling, the court stated that it considered defendant’s youth in mitigation and

acknowledged that defendant was 17 years old at the time of the offense with no prior criminal

offenses. The court noted that following the completion of defendant’s sentence, defendant

would be “a relatively young man” and would “have the opportunity to display maturity.” The

court continued,

“[Y]our sentence is not being imposed toward or close to the higher end of this [6

to 30 year] range, is because of your youthfulness, your chronological age at the

time of the offense, your established biological evidence of a person that age

being particularly immature, brain development less than mature, your

impetuosity, your failure to appreciate risks and consequences, all consistent with

a person of a young age.”

¶ 10 The court sentenced defendant to 20 years’ imprisonment to be served at 85% and three

years’ MSR.

¶ 11 On August 3, 2018, the court denied defendant’s motion to reconsider sentence. When

the court concluded the hearing, defendant stated, “Man, that’s some straight ass bullshit, man”

and “Man, fuck you, dog.”

¶ 12 On July 29, 2019, defendant filed a postconviction petition as self-represented litigant,

which alleged that his plea of guilty was involuntary and that he received ineffective assistance

where counsel informed defendant that he “may receive good time credit and a reduction in his

sentence if he participated in certain educational programs,” and that defendant “may be eligible

for day for day good time credit, [defendant’s] initial six month credit and that his specific,

4 capped sentence would not exceed 20 years[’]” imprisonment. Defendant contended that this

information was incorrect where he was “ineligible for such credit due to the offense” and “a

three-year term of [MSR] automatically attaches by operation of law to his class X sentence.”

Defendant argued that had he known of the three-year term of MSR and his ineligibility for good

time sentencing credit, he would not have pled guilty.

¶ 13 On October 8, 2019, the court dismissed defendant’s postconviction petition, finding that

it had repeatedly advised defendant that he faced a three-year term of MSR, and that defendant

would serve 85% of his sentence. The court further found that it had considered defendant’s

youth in mitigation, and defendant confirmed that counsel had reviewed the terms of the

agreement prior to the plea, and that no other promises had been made. Finally, the court noted

that, “in hindsight, when all of the above hearings were said and properly done, Defendant had

the last word upon exiting the courtroom on August 3, 2018, which merely confirmed

Defendant’s incorrigibility, when he stated to the court: ‘Man, that’s straight ass bullshit man’

and ‘Fuck you.’ ” Defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 Defendant argues the court erroneously dismissed his postconviction petition because:

(1) it established the gist of a constitutional claim regarding the court’s failure to consider his

youth as a factor in mitigation at sentencing, (2) it established that plea counsel’s ineffective

assistance rendered his plea unknowing and involuntary, and (3) the court exhibited bias.

¶ 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

5 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)). 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.

¶ 17 A. Sentencing

¶ 18 Defendant argues that his petition established the gist of a constitutional claim regarding

his sentence, where the court failed to consider his youth in mitigation. See Miller v. Alabama,

567 U.S. 460, 473 (2012).

¶ 19 In Miller, the Court forbid the imposition of mandatory life sentences on a juvenile

offender. Id. at 479. A court could impose a discretionary life sentence on a juvenile offender

only after it considered the juvenile’s youth and its attendant characteristics. Id. In People v.

Reyes, 2016 IL 119271, ¶¶ 7, 8 (per curiam), our supreme court extended Miller to require courts

to consider youth and its attendant characteristics before imposing a de facto life sentence. In

People v. Buffer, 2019 IL 122327, ¶ 42, our supreme court defined a de facto life sentence as a

sentence greater than 40 years’ imprisonment.

¶ 20 We note that the court did not impose a de facto life sentence when it sentenced

defendant to 20 years’ imprisonment. See id. Therefore, the court was not required to consider

the Miller factors, and defendant’s claim has no basis in law.

6 ¶ 21 Further, in the present case, the court explicitly considered defendant’s youth when it

noted defendant’s age and stated that, but for defendant’s youth, the court would have imposed a

longer sentence. Supra, ¶ 9. Thus, the record shows that the court properly considered

defendant’s youth in mitigation, and defendant’s claim has no basis in fact.

¶ 22 B. Plea

¶ 23 Defendant argues that his petition established the gist of a claim that he entered an

unknowing and involuntary plea due to ineffective assistance of counsel. Specifically, defendant

argues that plea counsel gave deficient advice concerning the potential sentencing range and

applicable sentence enhancements attendant to the dismissed offenses.

¶ 24 Defendant may not raise new allegations on appeal. See 725 ILCS 5/122-3 (West 2018);

see also Jones, 211 Ill. 2d at 143, 148. Claims not raised in the original or amended petition are

waived. See 725 ILCS 5/122-3 (West 2018).

¶ 25 In the present case, defendant alleged in his postconviction petition the ineffective

assistance of plea counsel for incorrectly advising him regarding the applicable good time

sentencing credit and MSR, resulting in an involuntary guilty plea. On appeal, defendant

concedes that the claims in his petition are insufficient to establish that his plea was involuntary

and raises new ineffective assistance claims that plea counsel gave deficient advice concerning

the potential sentencing range and applicable sentence enhancements regarding the dismissed

offenses. Defendant’s claims on appeal are waived where defendant failed to raise those claims

in his postconviction petition. See id.

¶ 26 Even assuming, arguendo, that defendant’s claims are not waived, and defendant had

established counsel’s deficient performance, defendant is unable to establish prejudice necessary

for a showing of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668,

7 694 (1984) (to challenge the effectiveness of counsel a defendant must show both that counsel

provided deficient performance and that deficiency caused prejudice); see also People v. Hale,

2013 IL 113140, ¶ 17 (an ineffective assistance of counsel claim may be disposed of on

defendant’s failure to establish prejudice alone). Prior to defendant’s plea, he faced seven

charges, which included five Class X felonies. Defendant cannot show that it would have been

rational under the circumstances to reject his agreement to plead guilty to one Class X felony,

and instead go to trial on five Class X felonies. See People v. Brown, 2017 IL 121681, ¶ 28.

Moreover, the evidence of defendant’s guilt was overwhelming. Police located defendant inside

the Sutton’s vehicle hours after the home invasion. At the time, defendant was wearing clothes

stained with Lee’s blood. As a result, defendant cannot establish prejudice by the deficient

performance of counsel.

¶ 27 C. Court Bias

¶ 28 Defendant argues that the circuit court exhibited bias in its order summarily dismissing

defendant’s petition, requiring us to reverse and remand for new first-stage proceedings. As

evidence of bias, defendant points to the court’s reference to defendant’s verbal in-court outburst

following the court’s ruling on his motion to reconsider sentence.

¶ 29 The right to an unbiased, open-minded trier of fact is fundamental and rooted in the

constitutional guaranty of due process of law. People v. McDaniels, 144 Ill. App. 3d 459, 462

(1986). “Allegations of judicial bias must be viewed in context and should be evaluated in terms

of the trial judge’s specific reaction to the events taking place.” People v. Jackson, 205 Ill. 2d

247, 277 (2001). A judge is presumed to be impartial even after extreme provocation. People v.

Hall, 114 Ill. 2d 376, 407 (1986). The party asserting judicial bias must overcome this

presumption by presenting evidence of the judge’s personal bias and engagement in prejudicial

8 conduct during the proceedings. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). “[O]nly under

the most extreme cases would disqualification for bias or prejudice be constitutionally required.”

People v. Coleman, 168 Ill. 2d 509, 541 (1995). We review de novo issues regarding the denial

of due process. People v. Bradley, 2017 IL App (4th) 150527, ¶ 13.

¶ 30 In the present case, the court’s comment in its summary dismissal of defendant’s petition

fails to establish judicial bias. The record shows that the court noted defendant’s in-court

outburst in support of its prior finding of incorrigibility at sentencing. However, the court did not

rely on the outburst to dismiss defendant’s petition. Therefore, the court did not exhibit judicial

bias by referencing defendant’s prior statements.

¶ 31 III. CONCLUSION

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

¶ 33 Affirmed.