People v. Parker

2019 IL App (4th) 170123-U

Opinion

NOTICE This order was filed under Supreme FILED Court Rule 23 and may not be cited 2019 IL App (4th) 170123-U December 31, 2019 as precedent by any party except in Carla Bender the limited circumstances allowed NO. 4-17-0123 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ROGER L. PARKER, ) No. 14CF131 Defendant-Appellant. ) ) Honorable ) Robert K. Adrian, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Holder White and Justice Cavanagh concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed the trial court’s summary dismissal of defendant’s pro se postconviction petitions.

¶2 In September 2014, a jury convicted defendant, Roger L. Parker, of aggravated

battery (720 ILCS 5/12-3.05(c) (West 2012)), intimidation (id. § 12-6(a)(1)), and resisting a

peace officer (id. § 31-1(a)). The trial court sentenced defendant to 30 months’ probation. In

December 2014, the State filed a petition to revoke defendant’s probation. While the State’s

petition was pending, defendant filed a late notice of appeal, which this court allowed. In January

2015, the trial court granted the State’s petition and later resentenced defendant to a four-year

prison term for aggravated battery and a three-year term for intimidation. The court did not resentence defendant on his resisting a peace officer conviction but discharged defendant

unsuccessfully from probation.

¶3 In October 2016, defendant pro se filed a petition for postconviction relief under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014)). In December

2016, defendant pro se filed an “amended” postconviction petition. In January 2017, the trial

court dismissed both of defendant’s petitions as frivolous and patently without merit.

¶4 In May 2017, during the pendency of this appeal, this court affirmed defendant’s

conviction and sentence on direct appeal. People v. Parker, 2017 IL App (4th) 141016-U, ¶ 2.

¶5 In this appeal, defendant argues the trial court erred in dismissing his pro se

postconviction petitions at the first stage of proceedings. For the following reasons, we affirm the

trial court’s judgment.

¶6 I. BACKGROUND

¶7 On February 28, 2014, the State charged defendant by information with

aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) (count I), intimidation (id. § 12-6(a)(1))

(count II), and resisting a peace officer (id. § 31-1(a)) (count III).

¶8 In September 2014, the case proceeded to a jury trial. Prior to trial, the parties

provided a combined witness list to the trial court, which included the names of Corey Thomas

and Angela Smith as potential witnesses. On the second day of trial, defense counsel indicated

that she did not plan to call Thomas or Smith to testify during defendant’s case-in-chief. Defense

counsel stated the following:

“One of the witnesses that I had on my list yesterday[, Corey Thomas,]

would not have had anything more to add than what the other two witnesses were

to testify to. And the other witness, Angela Smith: I interviewed her this morning

-2- by phone and determined that she didn’t have anything in addition to add that

would have been helpful to the defense.”

The jury found defendant guilty on all three counts. In October 2014, the trial court sentenced

defendant to 30 months’ probation.

¶9 On December 3, 2014, the State filed a petition to revoke defendant’s probation.

On December 9, 2014, while the State’s petition was pending, defendant filed a late notice of

appeal, which this court allowed. On January 26, 2015, the trial court found the State proved its

petition by a preponderance of the evidence and revoked defendant’s probation in absentia. On

March 12, 2015, the court resentenced defendant to a four-year prison term for aggravated

battery and three-year term for intimidation. The trial court determined defendant was also

unsuccessfully discharged from probation for the misdemeanor resisting a peace officer

conviction, but did not resentence defendant for that conviction.

¶ 10 On October 26, 2016, defendant pro se filed a postconviction petition. Defendant

alleged:

“[Defendant] was denied his right to the effective assistance of trial counsel where

defense counsel failed and refuse[d] to call as witnesses two people who could

have corroborated [defendant’s] innocence.

Four witnesses [were] subpoena[ed] on the behalf of my case to testify,

but only the two bad witnesses [were called] to testify as bad witnesses. My trial

attorney *** refuse[d] to call my important witnesses to testify at trial, to my

actual innocence.

***

-3- I have tried to obtain an affidavit from my witness[es], but have been

unable to do so because I am incarcerated and indigent and unable to locate

witness[es’] current address without assistance from the court.”

¶ 11 On December 16, 2016, defendant pro se filed an amended postconviction

petition. Defendant did not file a motion in the trial court seeking leave to amend his initial

petition. In the amended petition, defendant reiterated his claim of ineffective assistance of

counsel, stating, “[Defense counsel] was inad[e]quately prepared and unable to make a

reasonable decision not to explore Corey Thomas[’s] testimony, also Angela Smith’s possible

testimony or to explore an alternative defense that would be supported by th[ei]r testimony.”

Defendant attached an affidavit to the amended petition, which contained his signature, the

signature of a notary public, the notary public’s official seal, and a statement that the affidavit

was “[s]igned and sworn” before a notary public on December 12, 2016. In the affidavit,

defendant averred that “the following facts are true to the best of my belief or knowledge.”

¶ 12 On January 13, 2017, the trial court dismissed defendant’s amended petition as

frivolous and patently without merit because it was “not verified by affidavit as required by

statute.” The court further stated,

“The original [p]etition raises the issue of ineffective assistance of counsel

for failure to call certain witnesses. That issue could have been raised on direct

appeal. Since the appeal is still pending, that issue may currently be raised on

[a]ppeal. Further, the [p]etition does not include an [a]ffidavit, nor does it state

what the witnesses’ testimony would have been. As such, the [c]ourt cannot

evaluate the petitioner’s claim of ineffective assistance of counsel. For those

-4- reasons, the original [p]etition is frivolous and without merit, and is also

dismissed.”

¶ 13 This appeal followed. On May 18, 2017, while this appeal was pending, this court

affirmed the trial court’s judgment sentencing defendant to 30 months of probation and ordering

defendant to pay all court costs, fees, and penalties. Parker, 2017 IL App (4th) 141016-U, ¶ 2.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues the trial court erred in summarily dismissing his

postconviction petitions because he stated the gist of a constitutional claim of ineffective

assistance of trial counsel. Specifically, defendant argues trial counsel was ineffective when she

failed to call two witnesses, Corey Thomas and Angela Smith, to testify at defendant’s trial. The

State argues that defendant (1) does not have standing to request postconviction relief with

respect to his conviction for resisting a peace officer because he did not receive a sentence for

that conviction after he was unsuccessfully discharged from probation, (2) failed to state the gist

of a constitutional claim for ineffective assistance of counsel, and (3) failed to state a colorable

claim of actual innocence.

¶ 16 A. Proceedings Under the Act

¶ 17 The Act (725 ILCS 5/122-1 to 122-7 (West 2014)) “provides a three-stage process

for the adjudication of postconviction petitions.” People v. Harris, 224 Ill. 2d 115, 125, 862

N.E.2d 960, 967 (2007). “At the first stage of postconviction proceedings, the circuit court

reviews the petition and may summarily dismiss it if the court determines it is ‘frivolous or is

patently without merit.’ ” People v. Perkins, 229 Ill. 2d 34, 42, 890 N.E.2d 398, 402 (2007)

(quoting 725 ILCS 5/122-2.1(a)(2) (West 2002)). “A postconviction petition is frivolous or

-5- patently without merit when its allegations, taken as true and liberally construed, fail to present

the gist of a constitutional claim.” Harris, 224 Ill. 2d at 126.

¶ 18 If a petition survives the first stage of proceedings, it advances to the second stage

where counsel may be appointed and the State may file a responsive pleading. Harris, 224 Ill. 2d

at 126. “If at the second stage a substantial showing of a constitutional violation is established,

the petition proceeds to the third stage for an evidentiary hearing.” Id.

¶ 19 “Proceedings under the Act are commenced by the filing of a petition in the

circuit court in which the original proceeding took place.” People v. Hodges, 234 Ill. 2d 1, 9, 912

N.E.2d 1204, 1208 (2009). Pursuant to section 122-1 of the Act, the petition must be verified by

affidavit. 725 ILCS 5/122-1(b) (West 2014). The purpose of the verification affidavit is to

confirm that the allegations were brought “truthfully and in good faith.” (Internal quotation

marks omitted.) People v. Allen, 2015 IL 113135, ¶ 27, 32 N.E.3d 615. A pro se petitioner’s

failure to attach a verification affidavit is not fatal at the first stage of proceedings, but rather

may be grounds for a motion to dismiss by the State at the second stage. Id.

¶ 20 Additionally, section 122-2 of the Act (725 ILCS 5/122-2 (West 2012)) requires

that a postconviction petition “shall have attached thereto affidavits, records, or other evidence

supporting its allegations or shall state why the same are not attached.” The purpose of this

evidentiary requirement is to verify that the allegations in the petition are capable of objective or

independent corroboration. Allen, 2015 IL 113135, ¶ 26. A pro se petitioner’s “failure to either

attach the necessary affidavits, records, or other evidence or explain their absence is fatal to a

post-conviction petition [citation] and by itself justifies the petition’s summary dismissal.”

(Internal quotation marks omitted.) People v. Delton, 227 Ill. 2d 247, 255, 882 N.E.2d 516, 520

(2008).

-6- ¶ 21 We review the trial court’s summary dismissal of a postconviction petition

de novo (People v. Tate, 2012 IL 112214, ¶ 10, 980 N.E.2d 110), and may affirm on any basis

supported by the record. People v. Stoecker, 384 Ill. App. 3d 289, 292, 892 N.E.2d 131, 134

¶ 22 B. Ineffective Assistance of Counsel

¶ 23 Claims of ineffective assistance of counsel are guided by the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), which requires that a defendant show both that

counsel’s performance “ ‘fell below an objective standard of reasonableness’ ” and that the

deficient performance prejudiced the defense. Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466

U.S. at 687-88). “At the first stage of postconviction proceedings under the Act, a petition

alleging ineffective assistance may not be summarily dismissed if (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.” Hodges, 234 Ill. 2d at 17. A defendant must satisfy both prongs, and

the failure to satisfy either precludes an argument defendant received ineffective assistance of

counsel. People v. Wilborn, 2011 IL App (1st) 092802, ¶ 76, 962 N.E.2d 528; Strickland, 466

U.S. at 697.

¶ 24 Generally, the decisions about which witnesses to call at trial and what evidence

to present are strategic ones. Wilborn, 2011 IL App (1st) 092802, ¶ 79. Matters of trial strategy

“are generally immune from claims of ineffective assistance of counsel.” Id. Furthermore,

“counsel’s decision to abandon a trial strategy during trial may be reasonable under the

circumstances,” and “the decision not to provide promised testimony may be warranted by

unexpected events.” Id. ¶ 80. Under the Act, a claim that counsel was ineffective for failing to

call a witness to testify at trial generally must be supported by an evidentiary affidavit from the

-7- proposed witness. People v. Johnson, 183 Ill. 2d 176, 192, 700 N.E.2d 996, 1004 (1998); People

v. Thompkins, 161 Ill. 2d 148, 163, 641 N.E.2d 371, 378 (1994). In the absence of such an

affidavit, a reviewing court cannot determine whether the proposed witness could have provided

testimony or information favorable to the defendant. Johnson, 183 Ill. 2d at 192; Thompkins, 161

Ill. 2d at 163.

¶ 25 C. This Case

¶ 26 First, we need not address the State’s argument that defendant lacks standing to

challenge his conviction for resisting a peace officer because defendant forfeited any challenge

to that conviction by failing to raise it in his initial or amended petitions. “[C]laims not raised in

a postconviction petition cannot be argued for the first time on appeal.” People v. Pendleton, 223

Ill. 2d 458, 470, 861 N.E.2d 999, 1006 (2006). In defendant’s initial and amended petitions, he

references only his convictions for aggravated battery and intimidation and fails to make any

reference to his conviction for resisting a peace officer. Furthermore, defendant’s notice of

appeal lists only “Aggravated Battery and Intimidation” after “Offense of which convicted.”

Accordingly, defendant has forfeited any claim challenging his conviction for resisting a peace

officer and we discuss below defendant’s claim of ineffective assistance of counsel only as it

relates to his convictions for aggravated battery and intimidation.

¶ 27 Here, the trial court erroneously dismissed defendant’s amended petition on the

basis that it was “not verified by affidavit as required by statute.” Defendant attached an affidavit

to his amended petition, averring that “the following facts are true to the best of my belief or

knowledge.” Even if we were to find defendant’s affidavit was somehow deficient, a pro se

petitioner’s failure to attach a proper verification affidavit cannot be the basis for the dismissal of

the petition at the first stage of proceedings. See Allen, 2015 IL 113135, ¶ 27.

-8- ¶ 28 However, the trial court properly dismissed both of defendant’s petitions as

frivolous and patently without merit because it is not arguable defendant received ineffective

assistance of counsel. First, defendant does not show it is arguable he suffered prejudice. In the

petitions, defendant asserts trial counsel failed to call two witnesses, Thomas and Smith, who

would have provided exculpatory evidence if they had been called to testify at trial. Defendant

failed to attach affidavits or any other evidence from either witness to support this claim—a

failure which by itself would support the summary dismissal of his petitions. See Delton, 227 Ill.

2d at 255. Defendant states that he did not attach affidavits from either witness because, due to

his incarceration, he was unable to obtain their contact information. Even if we were to accept

defendant’s explanation as to why affidavits were not attached, defendant fails to specify what

these witnesses’ testimony would have been or how counsel’s failure to call them to testify

impacted the outcome at trial. Although defendant states both “that the [witnesses’] testimony

*** would be consistent with his theory of actual innocence,” and could have supported “an

alternative defense,” he does not explain the potential alternative defense and provides no basis

for his belief that either of these witnesses would have corroborated his own testimony at trial.

Defendant fails to provide a minimal amount of detail as to the factual basis for his claim of

ineffective assistance. See People v. Dupree, 2018 IL 122307, ¶ 37, 124 N.E.3d 908 (“[T]here

can be no substantial showing of ineffective assistance of counsel for failure to investigate or call

a witness if there is no evidence that the exculpatory evidence actually exists.”). Accordingly, it

is not arguable defendant suffered prejudice.

¶ 29 Furthermore, even if we were to assume defendant suffered prejudice as a result

of trial counsel’s failure to call Thomas and Smith as witnesses, it is also not arguable that trial

counsel’s performance fell below an objective standard of reasonableness. At defendant’s trial,

-9- counsel stated that she would not be calling Thomas or Smith, despite the fact they were on

defendant’s witness list, because she did not believe their testimony would provide any new or

helpful evidence for the defense. This decision constituted a trial strategy from which ineffective

assistance claims are ordinarily immune. See Wilborn, 2011 IL App (1st) 092802, ¶ 79.

Defendant does not present any facts in his initial or amended postconviction petitions to rebut

counsel’s statement to the trial court that these witnesses’ testimony would not have been helpful

to the defense or explain why this strategy was otherwise erroneous. Accordingly, the court

properly dismissed defendant’s petitions as frivolous and patently without merit.

¶ 30 Finally, we decline to address the State’s argument that defendant failed to

present a colorable claim of actual innocence, as defendant stated in his reply brief that although

he used the words “actual innocence” in his opening brief, his pro se petitions were not based on

such a claim.

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we affirm the trial court’s judgment.

¶ 33 Affirmed.

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