People v. Overton

2020 IL App (4th) 180755-U

• Court: Appellate Court of Illinois
• Decided: August 5, 2020
• Docket: 4-18-0755
• Status: Unpublished

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 180755-U August 5, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-18-0755 4th District Appellate the limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County RAY T. OVERTON, ) No. 90CF652 Defendant-Appellant. ) ) Honorable ) Adam Giganti, ) Judge Presiding.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court granted counsel’s motion to withdraw because no meritorious issues could be raised on appeal.

¶2 This case comes to us on the motion of the Office of the State Appellate Defender

(OSAD) to withdraw as counsel. In May 2018, defendant, Ray T. Overton, pro se filed a petition

for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Civil Code)

(735 ILCS 5/2-1401 (West 2016)) and a motion for DNA testing pursuant to section 116-3 of the

Code of Criminal Procedure (Criminal Code) (725 ILCS 5/116-3 (West 2016)). In October 2018,

the trial court granted the State’s motions to dismiss. Defendant appealed, and this court

appointed OSAD to represent him on appeal.

¶3 In March 2020, OSAD filed a motion to withdraw. In support of its motion,

OSAD contends that an appeal in this case would be without arguable merit. We agree, grant

OSAD’s motion to withdraw as counsel, and affirm the trial court’s judgment. ¶4 I. BACKGROUND

¶5 A. Procedural History

¶6 In November 1991, a jury convicted defendant of first degree murder (Ill. Rev.

Stat. 1989, ch. 38, ¶ 9-1(a)(1)). The State alleged that defendant and three others started a fist

fight with the victim and later stabbed him in the head with screwdrivers. In January 1992, the

trial court sentenced defendant to 90 years in prison.

¶7 On direct appeal, defendant challenged only that his sentence was excessive. In

November 1992, this court affirmed. People v. Overton, No. 4-92-0096 (Nov. 5, 1992)

(unpublished order under Illinois Supreme Court Rule 23).

¶8 B. The Petition for Relief From Judgment

¶9 In May 2018, defendant filed a petition for relief from judgment pursuant to

section 2-1401 of the Civil Code (735 ILCS 5/2-1401 (West 2016)), alleging (1) he was

improperly convicted and sentenced for intentional murder, but the State charged him with, and

the jury relied upon, knowing murder, (2) “the Criminal Code of ‘1961’ used in the charging

instrument is unconstitutional in a 1990 case,” (3) the detectives who interviewed defendant

coerced him into making a confession based on threats and tricked him into signing a statement

that contained material misrepresentations, (4) the detectives presented false testimony and other

evidence at trial regarding defendant’s statements, (5) the State introduced into evidence an

audio recording that was edited to remove exculpatory evidence, (6) the State presented two

articles of clothing with blood on them without demonstrating that the clothes were defendant’s

and that they were properly obtained by search warrant, and (7) one of the detectives who

interviewed defendant was charged with filing false police reports in 2006.

¶ 10 C. The Motion for DNA Testing

-2- ¶ 11 In May 2018, defendant also filed a motion for DNA testing, which was attached

to his petition for relief from judgment. Defendant asserted that DNA testing of two blood stains

on a pair of pants and a shoe that were presented at trial would “prove that [defendant] is

innocent of murder.” Defendant contended that the State failed to show that the clothing

belonged to defendant or whose blood was on the clothing.

¶ 12 D. The State’s Motions To Dismiss

¶ 13 In September 2018, the State filed two motions to dismiss. The first addressed

defendant’s petition for relief from judgment and argued that (1) the petition was untimely,

(2) the claims were barred by res judicata or were forfeited because they were not raised in

earlier proceedings, (3) certain issues were contradicted by the record, and (4) defendant’s claims

failed on the merits. The State’s second motion to dismiss asserted that the motion for DNA

testing was meritless because (1) the State never presented any clothing at trial, (2) defendant

could not establish a chain of custody on any clothing because nothing in the record suggested

the police ever had such clothing, and (3) defendant admitted at trial that he participated in a

fight with the victim and that was where the blood came from.

¶ 14 Later in September 2018, the trial court conducted a hearing on the State’s

motions to dismiss. However, defendant indicated he had not received or reviewed either of the

State’s motions. The State provided copies of the motions to defendant in open court, and the

court continued the hearing to allow defendant time to review the motions.

¶ 15 In October 2018, the trial court resumed the hearing on the State’s motions.

Following argument, the court granted the State’s motions and dismissed the petition for relief

from judgment and motion for DNA testing.

¶ 16 E. OSAD’s Motion To Withdraw

-3- ¶ 17 Defendant appealed the trial court’s dismissals, and this court appointed OSAD to

represent defendant. In March 2020, OSAD filed a motion to withdraw, asserting that

(1) defendant’s petition was untimely and not subject to any exceptions, (2) the trial court

followed proper procedure when dismissing the petition and motion, and (3) defendant’s motion

for DNA testing lacked merit and was properly denied. OSAD served a copy of its motion to

withdraw on defendant. Defendant filed a single sentence response, asking “to withdraw his

appeal due to not being able to afford counsel.” We agree with OSAD, grant its motion, and

affirm the trial court’s judgment.

¶ 18 II. ANALYSIS

¶ 19 A. Defendant’s Petition Was Untimely

¶ 20 Section 2-1401 provides a statutory procedure for vacating a final judgment older

than 30 days. 735 ILCS 5/2-1401(a) (West 2016). A petition challenging a final judgment must

be filed not later than two years after its entry, unless the petitioner can demonstrate legal

disability, duress, or fraudulent concealment. Id. § 2-1401(c); People v. Vincent, 226 Ill. 2d 1, 7,

871 N.E.2d 17, 22 (2007). A void judgment, such as one entered without subject matter

jurisdiction or one based upon a facially unconstitutional statute, may be challenged at any time.

People v. Rucker, 2018 IL App (2d) 150855, ¶ 18, 127 N.E.3d 93; People v. Price, 2016 IL

118613, ¶ 31, 76 N.E.3d 1240. The dismissal of a section 2-1401 petition without an evidentiary

hearing is reviewed de novo. Rucker, 2018 IL App (2d) 150855, ¶ 16.

¶ 21 Defendant was convicted in 1991 and sentenced in 1992; he filed his petition in

2018, over a quarter century later. Defendant’s petition alleged that (1) the charging instrument

was defective, (2) his confession was coerced, (3) officers presented false testimony at trial

regarding his confession, and (4) the State played a misleading, edited tape recording of his

-4- confession at trial. All of these claims were known to defendant at or before the time of trial, and

he provides no facts to suggest why he could not have raised them earlier. Indeed, as OSAD

points out, most of these issues were raised by defendant at trial and presented to the jury.

¶ 22 Defendant raised one claim relating to information discovered after his

conviction. Defendant attached a news article from 2006 alleging one of the detectives involved

in his case was charged with filing false reports. However, defendant does not make any showing

suggesting that the detective’s misconduct related to his case or why he waited 12 years after the

article was published to raise the claim. Defendant also makes one claim that could arguably fall

into the category of “void” judgments. Defendant contends that he was convicted under the

“Code of 1961,” which was “unconstitutional” when “used for a 1990 murder.” Defendant

simply misunderstands that the short title for the entire criminal code in 1990 was the “Criminal

Code of 1961.” See Ill. Rev. Stat. 1989, ch. 38, ¶ 1-1 (“This Act may be cited as the Criminal

Code of 1961.”). The murder statute defendant was convicted under has been held constitutional

on numerous occasions. People v. Collier, 228 Ill. App. 3d 159, 161, 592 N.E.2d 444, 446 (1992)

(collecting cases).

¶ 23 B. Procedurally Proper

¶ 24 Next, OSAD considered whether the trial court followed all necessary procedural

rules before granting the State’s motion to dismiss. Generally, a trial court may not dismiss a

section 2-1401 petition until the State has had an opportunity to respond. People v. Laugharn,

233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009). In the event the State files a dispositive

motion, a defendant must likewise receive an opportunity to respond. People v. Bradley, 2017 IL

App (4th) 150527, ¶ 19, 85 N.E.3d 591. Here, the State filed a motion to dismiss the petition, and

defendant was given the opportunity to respond. At a subsequent hearing on the merits,

-5- defendant addressed the State’s motion to dismiss. Accordingly, the trial court’s dismissal was

procedurally proper.

¶ 25 C. Motion for DNA Testing

¶ 26 Last, OSAD contends it examined whether the trial court properly denied

defendant’s motion for DNA testing. Section 116-3 of the Criminal Code (725 ILCS 5/116-3

(West 2016)) provides a criminal defendant a means of receiving forensic testing to demonstrate

innocence when certain conditions are met. Relevant here, a trial court may order testing if it

finds that “the result of the testing has the scientific potential to produce new, noncumulative

evidence *** materially relevant to the defendant’s assertion of actual innocence when the

defendant’s conviction was a result of trial, even though the results may not completely

exonerate the defendant.” Id. § 116-3(c)(1). This court reviews the denial of a section 116-3

motion de novo. People v. LaPointe, 2018 IL App (2d) 160432, ¶ 20, 129 N.E.3d 24.

¶ 27 Here, defendant claimed the State introduced pants and shoes at trial that had

spots of blood on them. Defendant contended that testing the blood from these articles would

advance his claim of innocence because (1) the State never showed that the items of clothing

were his and (2) it is unknown to whom the blood belongs. We disagree.

¶ 28 As OSAD points out, the record demonstrates that the State never admitted any

physical clothing into evidence. At trial, two witnesses and defendant referred to blood on

defendant’s pant leg and on the tongue of one of his shoes. However, defendant testified that the

blood came from the initial fight between himself, his codefendants, and the victim. This

testimony provided a non-murderous explanation for the blood, and it was supported by other

witnesses who pointed out that defendant had very little blood on him while a codefendant was

“splattered with blood” “from head to foot[.]” Defendant’s conviction will not be impacted if the

-6- victim’s DNA is found because that is consistent with his testimony at trial. If the DNA belongs

to someone else, at best that information is irrelevant and at worst it contradicts defendant’s

explanation.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, OSAD’s motion to withdraw is granted, and the trial

court’s judgment is affirmed.

¶ 31 Affirmed.

-7-