People v. Pace

2021 IL App (4th) 190907-U

• Court: Appellate Court of Illinois
• Decided: January 3, 2022
• Docket: 4-19-0907
• Status: Unpublished

Opinion

NOTICE FILED This Order was filed under 2022 IL App (4th) 190907-U January 3, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-19-0907 4th District Appellate 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. ) Jersey County SAMUEL L. PACE, ) No. 96CF35 Defendant-Appellant. ) ) Honorable ) Joshua A. Meyer, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying defendant leave to file a successive postconviction petition.

¶2 Defendant, Samuel L. Pace, appeals the circuit court’s denial of his motion for

leave to file a successive postconviction petition under section 122-1(f) of the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2018)). On appeal, defendant asserts the

dismissal is improper as he sufficiently pleaded a claim his trial counsel, Don Weber, acted

under a per se and actual conflict of interest while representing him at trial, as Weber had an

undisclosed relationship with the sheriff of Jersey County, Frank Yocom, who testified against

defendant. We affirm.

¶3 I. BACKGROUND ¶4 In April 1996, defendant was charged in Jersey County with the first degree

murder of Madge Reynolds Crader (720 ILCS 5/9-1(a)(1) (West Supp. 1995)). Before trial,

defendant was represented by different counsel, Eric Pistorius. Pistorius filed a motion to quash

arrest and suppress evidence. At the hearing on this motion, Sheriff Yocom testified defendant’s

brother, Jeff Pace, called to report he had seen a body in defendant’s garage. Sheriff Yocom,

accompanied by other law-enforcement officers, went to defendant’s residence. Regarding the

discovery of Crader’s body, Sheriff Yocom testified they “went to the doorway of the garage and

peered through a window of the garage” and saw a body. When asked why Deputy Paul

Cunningham would write in his report “upon inspection of the garage it was found to be secure

with a padlock on the side walk-in door and black plastic or some type of heavy plastic was

observed to be covering the inside windows of the garage” and there was “[n]o way to see in the

garage, to see if anyone was in the garage,” Sheriff Yocom testified he did not know why that

was in the report, as they looked through the glass of the garage.

¶5 The circuit court denied the motion. A day after the hearing, Pistorius filed a letter

to the judge and attached a partial transcript of grand-jury testimony. In the letter, Pistorius

informed the circuit court Sheriff Yocom’s grand-jury testimony conflicted with his testimony at

the hearing on the motion to suppress. Pistorius highlighted Sheriff Yocom’s grand-jury

testimony, “We did look through the windows but were unable to see anything through the

garage. They were covered.”

¶6 A little over two months before the June 1997 trial, Weber appeared as

defendant’s counsel.

¶7 During voir dire proceedings, the circuit court introduced prospective jurors to

Sheriff Yocom as a party to the case with the Jersey County state’s attorney. Sheriff Yocom was

-2- present every day of trial. He testified regarding the crime scene and defendant’s arrest.

According to Sheriff Yocom, Jeff reported Crader had been murdered by defendant and Jeff had

seen her body in defendant’s garage. Sheriff Yocom and other law-enforcement officers went to

defendant’s residence. There, Sheriff Yocom observed through a window defendant lying on his

couch. Defendant was taken into custody. A deputy used keys he obtained from defendant to

open the garage door. Sheriff Yocom stepped “[j]ust into the door.” From there, the sheriff could

see Crader’s body on the floor. She was covered in blood.

¶8 The jury found defendant guilty of first degree murder. The circuit court

sentenced defendant to a term of natural-life imprisonment.

¶9 Defendant has pursued multiple challenges to his conviction and sentence. He

pursued a direct appeal; we affirmed. People v. Pace, No. 5-97-0467 (1998) (unpublished order

under Illinois Supreme Court Rule 23). In July 1999, defendant filed his initial pro se

postconviction petition, asserting 28 allegations of trial-counsel error, 17 allegations of appellate-

counsel error, and 17 allegations of prosecutorial misconduct. After appointment of counsel, a

voluntary dismissal of the petition, a motion to reinstate the petition, a remand by this court (see

People v. Pace, No. 4-08-0260 (2008) (unpublished order under Illinois Supreme Court Rule

23)), and further proceedings in the circuit court, the circuit court ultimately denied defendant’s

petition in January 2010. On appeal, we affirmed upon granting appellate counsel’s motion for

leave to withdraw as counsel. People v. Pace, 2012 IL App (4th) 100161-U, ¶ 38.

¶ 10 Defendant also attempted to obtain leave to file a successive postconviction

petition in December 2016. The circuit court’s denial of this attempt is not the subject of this

appeal. In that case, we granted appointed appellate counsel’s motion to withdraw and affirmed

the denial of defendant’s pro se motion for leave to file a successive postconviction petition.

-3- People v. Pace, 2019 IL App (4th) 170118-U, ¶ 31.

¶ 11 In October 2019, defendant filed another pro se motion for leave to file a

successive postconviction petition, the subject of this appeal. Defendant states his appellate

counsel, while working on the appeal from defendant’s prior postconviction petition, discovered

Weber wrote a nonfiction book, Precious Victims. Defendant wrote the following regarding the

relationship between Weber and Sheriff Yocom, as revealed in that book:

“Precious Victims is a true story about the murders of two different

newborn babies from the same family; the mother was ultimately

convicted of the second murder and sentenced to life in prison. The

first crime took place in Jersey County, where [defendant’s] case

was prosecuted, and the second was in Madison County[.]

Weber[,] who at the time was State’s Attorney of Madison County,

was the lead prosecutor in the Madison County case, and he

worked closely with law enforcement in Jersey County, including

[S]heriff Frank Yocom, to put the case together. He the[n] wrote

Precious Victims about the trial. The book was later made into a

TV movie of the same name. Weber wrote in warm and flattering

tones about Yocom. The book shows Weber’s love and respect for

Yocom[.] [T]he book and movie made both Weber and Yocom

into local celebrities and even superheroes[.] It also seems to have

made Weber rich. Weber expresses his hate and dislike for

criminals, especially those charged with murder, armed robbery,

sex crimes, burglary[,] and theft in the book[.] *** [H]e admits in

-4- the book that he was *** an assistant prosecutor in Jersey County

in 1985, during this time Yocom was the sheriff [of] Jersey

County. Yocom and Weber encounter each other again in Pace’s

case[.] Yocom was still the sheriff of Jersey County at the time that

the [defendant] was tried and convicted. Weber did not disclose to

the [defendant] the fact that he knew Yocom or that he made a

great deal of money from a book starring Yocom. In fact[,] he

owed his writing career to Yocom and the [defendant] did not

know about the book and Yocom and Weber[’]s relationship.

***

*** [In this case, Weber’s] motives were related

to[ ]matters outside of the courtroom. In this case his motives

involved his relationship with Yocom and his potential interest in

repaying the sheriff who starred in the book that brought Weber so

much money and acclaim.”

¶ 12 Defendant further alleged this conflict of interest revealed itself in conduct by

Weber during defendant’s trial. Defendant contends that conflict prevented Weber from

impeaching Yocom regarding his contradictory claims about seeing the victim’s body through

the garage window. Defendant further asserts the relationship prevented Weber from challenging

the fact Yocom sat at the prosecutor’s table throughout trial proceedings and during hearings. In

further support, defendant cited a published decision in which Weber’s conduct as the Madison

County State’s Attorney, in a case unrelated to this one, was condemned. See People v. Barton,

122 Ill. App. 3d 1079, 1084-85, 462 N.E.2d 538, 543 (1984) (referring to Weber’s conduct in the

-5- proceedings as “wholly unjustified,” “inappropriate,” and “reprehensible”).

¶ 13 The trial court denied defendant’s motion for leave upon concluding he had not

satisfied cause or prejudice. As to the issue of cause, the trial court found defendant failed to

meet his burden of showing an external factor impeded his ability to present his

conflict-of-interest claim in an earlier proceeding and, therefore, failed to adequately

demonstrate cause. Regarding prejudice, the court found defendant failed to provide any

evidence Weber had a relationship with Sheriff Yocom. The court observed while defendant

need not prove allegations, he was required to “provide more than unsupported assertions and

conclusions.” The court emphasized there were no affidavits, documents, or anything in the

record to support defendant’s petition.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 While the Act contemplates the filing of one postconviction petition, section

122-1(f) permits the filing of a successive postconviction petition if leave of court is granted. 725

ILCS 5/122-1(f) (West 2018). Leave of court should be granted if the petitioner demonstrates

cause for the failure to bring the claim during the initial postconviction proceedings and

prejudice resulting from that failure. Id. To show cause, a petitioner must identify “an objective

factor that impeded his or her ability to raise a specific claim during his or her initial

post-conviction proceedings.” Id. To show prejudice, that petitioner must demonstrate “the claim

not raised during his or her initial [postconviction] proceedings so infected the trial that the

resulting conviction or sentence violated due process.” Id. These considerations are commonly

referred to as the “cause-and-prejudice test.” See People v. Moore, 2020 IL App (4th) 190528,

¶ 14, 170 N.E.3d 204. To obtain leave to file a successive postconviction petition, a defendant

-6- must satisfy both prongs of that test. Id.

¶ 17 The Act also requires that petitions filed under the Act “shall have attached

thereto affidavits, records, or other evidence supporting its allegations or shall state why the

same are not attached.” 725 ILCS 5/122-2 (West 2018). The purpose of the mandate in section

122-2 is to show the allegations in the petition “are capable of objective or independent

corroboration.” People v. Hall, 217 Ill. 2d 324, 333, 841 N.E.2d 913, 919 (2005). A petitioner’s

failure to comply with this requirement is a sufficient basis for summary dismissal during the

first stage of postconviction proceedings (People v. Delton, 227 Ill. 2d 247, 255, 882 N.E.2d 516,

520 (2008)), as well as for the denial of leave to file a successive postconviction petition (see

People v. Wideman, 2013 IL App (1st) 102273, ¶ 18, 994 N.E.2d 546).

¶ 18 After a pro se motion for leave to file a successive postconviction petition is filed,

the circuit court should conduct a preliminary screening to ascertain whether the filing

adequately alleges facts establishing cause and prejudice. People v. Bailey, 2017 IL 121450,

¶ 24, 102 N.E.3d 114. If the petitioner has done so, leave to file must be granted. Id. While a

defendant need not conclusively establish cause and prejudice before granting leave, the

cause-and-prejudice test creates a burden higher than the frivolous-or-patently-without-merit

standard applied at the first stage of proceedings under the Act. Moore, 2020 IL App (4th)

190528, ¶ 15. A petitioner, to satisfy the cause-and-prejudice test, must “submit enough in the

way of documentation to allow a circuit court to make that determination.” People v. Smith, 2014

IL 115946, ¶ 35, 21 N.E.3d 1172 (quoting People v. Tidwell, 236 Ill. 2d 150, 161, 923 N.E.2d

728, 734-35 (2010)). Leave of court “should be denied when it is clear, from a review of the

successive petition and the documentation submitted by the petitioner, that the claims alleged by

the petitioner fail as a matter of law or where the successive petition with supporting

-7- documentation is insufficient to justify further proceedings.” Id. We review de novo decisions

made without an evidentiary hearing that deny leave of court to file a successive postconviction.

Moore, 2020 IL App (4th) 190528, ¶ 15.

¶ 19 Here, regarding the prejudice prong of the cause-and-prejudice test, defendant

argues he was denied due process as his attorney, Weber, was acting under a per se conflict of

interest or an actual conflict of interest due to his relationship with Sheriff Yocom, a witness at

defendant’s trial. Defendant contends this conflict, as evidenced by Weber’s book, denied him

his constitutional right to conflict-free representation.

¶ 20 To prove these claims, defendant must establish a conflict of interest existed. To

prove a per se conflict, defendant must present “facts about a defense attorney’s status” that

“engender, by themselves, a disabling conflict.” (Emphasis in original.) People v. Morales, 209

Ill. 2d 330, 346, 808 N.E.2d 510, 513 (2004) (quoting People v. Spreitzer, 123 Ill. 2d 1, 14, 525

N.E.2d 30, 34 (1988)). The conflict may arise from “the defense attorney’s prior or

contemporaneous association with either the prosecution or the victim.” See Spreitzer, 123 Ill. 2d

at 14. To establish an actual conflict of interest, defendant must show an actual conflict of

interest adversely affected his counsel’s performance. Id. at 18. This requires defendant to point

to some defect in counsel’s performance attributable to the conflict of interest. Id.

¶ 21 While defendant’s claims require proof of a relationship that created a conflict of

interest, defendant provided no documentary evidence of that relationship. Defendant, instead,

simply made unsupported, broad assertions about “flattering tones” in Weber’s description of

Sheriff Yocom and a working relationship between the two. Not only did defendant fail to attach

documentation, but he also failed to comply with section 122-2’s mandate he provide an

explanation for the absence of that documentation if no documentation is available. 725 ILCS

-8- 5/122-2 (West 2018).

¶ 22 Defendant contends his failure to comply with section 122-2’s documentation

requirement should be excused. Defendant asserts, “as a pro se petitioner, he could not be

expected to provide all parties with a copy of the apparently out-of-print book.” While a

defendant may be excused from providing “all parties” a copy of the book, the book itself is not

the only means by which defendant could support his claim. For example, defendant could have

provided photocopied excerpts of relevant passages, and an affidavit as to the authenticity of the

excerpts, to support his claim. Or, if he lacked access to the book, provide an explanation

regarding its absence. Without any documentation, defendant failed to comply with section 122-

2 and to adequately establish the prejudice prong of the cause-and-prejudice test.

¶ 23 III. CONCLUSION

¶ 24 We affirm the circuit court’s judgment.

¶ 25 Affirmed.

-9-