People v. Price

2020 IL App (1st) 182238-U

Opinion

2020 IL App (1st) 182238-U No. 1-18-2238 December 21, 2020

FIRST DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court ) Of Cook County. Respondent-Appellee, ) ) v. ) No. 08 CR 20668 ) SAMUEL PRICE ) The Honorable ) Catherine M. Haberkorn Petitioner-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WALKER delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: Where petitioner has made a substantial showing that his constitutional right to effective assistance of counsel was violated, the circuit court’s dismissal of petitioner’s post-conviction petition is reversed and remanded for a third-stage evidentiary hearing.

¶2 Petitioner, Samuel Price, was found guilty of aggravated robbery. He subsequently filed a

pro se post-conviction petition pursuant to the Post Conviction Hearing Act (“Act”) (725 ILCS

5/122 et seq. (West 2016)) alleging, among other things, that his trial counsel rendered

ineffective assistance when she denied him his right to testify. The circuit court of Cook County No. 1-18-2238

granted the State’s motion to dismiss his petition. Petitioner appeals arguing that his post-

conviction petition made a substantial showing that trial counsel usurped his right to testify.

For the following reasons, we reverse and remand for a third-stage evidentiary hearing.

¶3 BACKGROUND

¶4 Petitioner was charged with the aggravated robbery of Christopher Williams. At

petitioner’s bench trial, Williams testified that on October 16, 2008, at about 11:15 p.m., he

was walking home when petitioner asked him for a “fin” or $5. After Williams responded that

he did not have a fin, petitioner told Williams to “drop [his] pockets.” Petitioner then put his

right hand behind the right side of his body towards his waistband. Williams believed petitioner

had a gun.

¶5 A man approached them and addressed petitioner as “Sammy.” Petitioner told the man

Williams did not have five dollars, then told the man to leave, which he did. After petitioner

gestured behind his back, Williams pulled his pockets inside out and held his two one-dollar

bills in his left hand and a soda in his right hand. Petitioner knocked the soda out of Williams’

right hand and took the two, one-dollar bills out of his left hand.

¶6 Williams then walked away, and petitioner followed. When Williams reached the corner

of Broadway and Montrose, he walked towards his house and petitioner walked in the opposite

direction. While on Montrose, Williams saw a police vehicle and flagged it down. Williams

told the officers what happened and described petitioner. Williams saw petitioner down the

street and pointed him out to the officers. The officers then went to petitioner and drove

Williams past him to identify petitioner as the man who took his money.

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¶7 Officer Fitzgerald testified that on October 16, 2008, at approximately 11:15 p.m.,

Williams flagged down him and his partner and reported that he was robbed. Officer Fitzgerald

asked Williams whether the person was armed, and Williams responded that he believed the

person was armed. Officer Fitzgerald testified that his case report stated that petitioner acted

like he had a weapon in his waistband and told Williams to “drop his pockets.” When Officer

Fitzgerald searched petitioner, he found two one-dollar bills in petitioner’s pocket.

¶8 Petitioner’s counsel did not present any witnesses at trial.

¶9 The circuit court told petitioner that he had a right to testify and asked whether he wanted

to testify. Petitioner told the court that trial counsel “said it will make things worse.” The circuit

court informed petitioner, “Sir, it’s your decision with your lawyer.” The circuit court then

asked, “Are you choosing to testify or choosing not to testify?” Petitioner answered, “No.”

Though it was not clear which question the petitioner was answering, the circuit court stated,

“The defendant chooses not to testify.”

¶ 10 The circuit court found petitioner guilty of aggravated robbery and sentenced him to 18

years’ imprisonment.

¶ 11 Petitioner appealed his conviction and sentence. Petitioner alleged that the evidence

presented at trial was insufficient to establish his guilt beyond a reasonable doubt, the circuit

court improperly granted the State’s objection to a question posed by trial counsel, his 18-year

sentence was excessive, and the circuit court erred in the assessment of fines and fees.

¶ 12 On August 15, 2011, this court affirmed petitioner’s conviction but remanded for a new

sentencing hearing after finding petitioner’s sentence was excessive and that the sentencing

court focused on improper factors.

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¶ 13 On remand, the parties conducted another sentencing hearing and the circuit court reduced

petitioner’s sentence to 13 years’ imprisonment. Petitioner filed a motion to reconsider

sentence, which was denied by the circuit court. This court affirmed that sentence on February

13, 2013.

¶ 14 On January 15, 2014, petitioner filed a pro se post-conviction petition alleging that he

received ineffective assistance where his trial counsel coerced him into waiving his right to

testify at trial. Specifically, petitioner alleged that he told counsel before trial that he wanted

to testify, but counsel told him that if he testified, “it will make things worse.” Counsel then

allegedly told petitioner that if he testified, she “would walk out in the middle of ... trial and

make sure [he] gets found guilty.” Petitioner supported this claim with a notarized affidavit.

¶ 15 In his affidavit, petitioner averred that trial counsel told him that if the judge asked him

if he wanted to testify, he should say no. Petitioner also averred that he would have testified

that he, Williams, and “Mr. Johnson (the third party) were all discussing to buy alcohol and

we all put up money to purchase this alcohol and that Williams started laughing when I...reach

into my back pockets and only pulled out only two dollars for my half on the alcohol and gotten

upset that I did not pay him the money from the day before which was five dollars, and that

we started arguing and Johnson walk away and so did I [sic].” The police approached him two

minutes later and arrested him for robbery.

¶ 16 On February 27, 2014, the circuit court docketed petitioner’s petition and appointed

counsel. Post-conviction counsel appeared on petitioner’s behalf on May 9, 2014.

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¶ 17 On July 15, 2016, post-conviction counsel filed a certificate pursuant to Rule 651(c), as

well as a supplemental notarized affidavit by petitioner. Petitioner further averred that he chose

not to testify “out of fear ... that my attorney would walk out on me during my trial.”

¶ 18 On April 28, 2017, the State filed a motion to dismiss the petition. The State argued that

the record was devoid of any assertion by petitioner of a desire to testify at his trial. Instead,

petitioner waived his right to testify on the record when questioned by the circuit court about

the matter during his trial. The State also argued that petitioner would not be able to establish

prejudice because there was ample evidence of his guilt.

¶ 19 On September 21, 2018, the circuit court granted the State’s motion to dismiss. Petitioner

timely filed a notice of appeal.

¶ 20 ANALYSIS

¶ 21 On appeal, petitioner argues that his post-conviction petition made a substantial showing

that trial counsel usurped his right to testify. Our review of the circuit court's dismissal of

petitioner’s post-conviction petition is de novo. People v. Coleman, 183 Ill. 2d 366, 388–89

(1998).

¶ 22 The Act provides a three-stage process by which persons under criminal sentence may

challenge their convictions or sentences for violations of federal or state constitutional rights.

725 ILCS 5/122-1 et seq. (West 2016). A pro se defendant must allege enough facts to make

out a claim that is arguably constitutional for purposes of invoking the Act. People v. Hodges,

234 Ill. 2d 1, 9 (2009). However, a proceeding under the Act is a collateral attack on the prior

conviction or sentence that does not relitigate a defendant's innocence or guilt. People v. Ligon,

239 Ill. 2d 94, 103 (2010). Any issues considered by the court on direct appeal are barred by

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the doctrine of res judicata, and issues which could have been considered on direct appeal are

waived. Id.

¶ 23 At the first stage, the circuit court must, within 90 days of the petition's filing,

independently review the petition, taking the allegations as true, and determine whether “the

petition is frivolous or is patently without merit.” People v. Edwards, 197 Ill.2d 239, 244

(2001); 725 ILCS 5/122–2.1(a)(2) (West 2016). The petition is frivolous or patently without

merit only if it has “no arguable basis either in law or in fact.” People v. Brown, 236 Ill. 2d

175, 184-85 (2010) (quoting Hodges, 234 Ill. 2d at 16). A petitioner need only provide a limited

amount of detail and does not need to include legal arguments or cite to legal authority. People

v. Delton, 227 Ill. 2d 247, 254 (2008). However, the facts must be corroborated and be

objective in nature. Id. at 254-255. If the court does not dismiss the petition as frivolous or

patently without merit, then the petition advances to the second stage. Hodges, 234 Ill. 2d at

10.

¶ 24 At the second stage, counsel is appointed if the defendant is indigent, and the State may

enter the litigation. 725 ILCS 5/122-4,122-5 (West 2016); People v. Tate, 2012 IL 112214, ¶

10. The question before the court is “whether the post-conviction petition and any

accompanying documentation make a substantial showing of a constitutional violation.”

Edwards, 197 Ill. 2d at 246. In making this determination, a court must take “all well-pleaded

facts that are not positively rebutted by the original trial record” as true and may not engage in

any fact-finding or credibility determinations. People v. Domagala, 2013 IL 113688, ¶ 35. A

claim makes a “substantial showing” of a constitutional violation if its allegations would entitle

the petitioner to relief if proven at an evidentiary hearing. Id. If a petition makes a substantial

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showing of a constitutional violation, the petition advances to a third-stage hearing where the

circuit court, as the factfinder, will “determine witness credibility, decide the weight to be

given testimony and evidence, and resolve any evidentiary conflicts.” Id. ¶ 34. “Where the

State seeks dismissal of a post-conviction petition instead of filing an answer, its motion to

dismiss assumes the truth of the allegations to which it is directed and questions only their

legal sufficiency.” People v. Miller, 203 Ill. 2d 433, 437 (2002).

¶ 25 Both the federal and Illinois constitutions guarantee criminal defendants the right to

effective assistance of counsel at trial. U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, §

8; Strickland v. Washington, 466 U.S. 668, 687-89 (1984). Trial counsel provides ineffective

assistance when (1) counsel’s representation was deficient, and (2) counsel’s deficient

performance prejudiced the defendant. Id. at 688; People v. Albanese, 104 Ill. 2d 504, 525-26

(1984). A defendant must satisfy both prongs of the Strickland test and a failure to satisfy either

prong precludes a finding of ineffectiveness. People v. Veach, 2017 IL 120649, ¶ 30. Further,

the defendant “must overcome the strong presumption that the challenged action or inaction of

counsel was the product of sound trial strategy and not incompetence.” Coleman, 183 Ill. 2d at

397.

¶ 26 Here, petitioner argues that his petition made a substantial showing that his trial counsel

denied him his right to testify when he told her that he wanted to testify and she threatened to

quit his case in the middle of trial and make sure he was found guilty if he testified. Petitioner

claims that he felt he had no choice but to refuse to testify.

¶ 27 Petitioner’s allegations, taken as true, satisfy the first prong of Strickland. Trial counsel’s

alleged threat to quit in the middle of trial simply because petitioner wished to exercise his

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constitutional right to testify is objectively unreasonable. A criminal defendant’s right to testify

on his own behalf is a fundamental right. People v. Madej, 177 Ill. 2d 116, 145-46 (1997).

“The right is so fundamental that the decision to testify or to decline to testify can be made

only by the defendant, regardless of counsel's advice to the contrary.” People v. Whiting, 365

Ill. App. 3d 402, 407 (2006). Therefore, the decision to testify is not a strategic or tactical

decision best left to trial counsel. Madej, 177 Ill. 2d at 146.

¶ 28 The State argues that petitioner’s waiver at trial rebuts his claim that he was denied the

right to testify. At trial, petitioner and the circuit court engaged in the following exchange:

THE COURT: Samuel, you have the right to testify or not to testify. What are you

choosing to do at this time?

THE DEFENDANT: She said it will make things worse.

THE COURT: Sir, it’s your decision with your lawyer. Are you choosing to testify? or

choosing not to testify?

THE DEFENDANT: No.

THE COURT: The defendant chooses not to testify.

Although, it is not clear which one of the court’s questions was answered, the circuit court

found petitioner “chooses not to testify.”

The State concedes that this exchange illustrates that petitioner conveyed to the circuit

court that he and trial counsel discussed petitioner’s proposed testimony and that trial counsel

suggested that he not testify. The State then argues that the foregoing illustrates that petitioner

did not feel coerced by his attorney since he disregarded trial counsel’s supposed instruction

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to simply say no when asked if he wanted to testify. We disagree. The exchange suggests that

petitioner was reluctant in his decision not to testify. Petitioner does not allege that he waived

his right to testify in agreement with trial counsel’s advice, but out of fear. Threatening to quit

a case in the middle of trial is beyond a strong urging against testifying or an honest assessment

of defendant's case. It is intimidation. Petitioner’s waiver does not positively rebut his claim

that trial counsel threatened to quit if he testified or that he felt coerced by this threat.

¶ 29 Petitioner relies on People v. Lester, 261 Ill. App. 3d 1075 (1994), to bolster his argument

that this court should remand this case for a third-stage evidentiary hearing. In Lester, the

defendant alleged in his post-conviction petition that he told his attorney he wanted to testify,

but counsel told him that his testimony would hurt his appeal. Id. at 1079. On appeal from the

second-stage dismissal of the petition, the appellate court found that counsel’s warning to

defendant prior to trial that he should not testify indicated that the attorney misled the defendant

by making the assumption that the trial was lost before it began. Id. at 1079-80. The court

found that such a statement strongly indicated ineffective assistance of counsel because the

record did not reveal any rationale for this strategy. Id. at 1080. The court held that an

evidentiary hearing was the appropriate forum to determine if any rationale existed. Id.

¶ 30 The issue remains whether petitioner’s allegations demonstrated prejudice because of trial

counsel’s deficient representation. To demonstrate prejudice, a petitioner must show a

reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. Further, a claim that trial counsel

interfered with a defendant’s right to testify may be denied on the basis that the evidence

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against the defendant was overwhelming. People v. Hernandez, 351 Ill. App. 3d 28, 39-40

(2004).

¶ 31 Petitioner’s proposed testimony shows a reasonable probability that the outcome of his

proceeding would have been different. The evidence against petitioner is not overwhelming.

Williams testified that petitioner asked him for five dollars and when he said he did not have

five dollars, petitioner told him to “drop his pockets.” Believing petitioner had a gun, Williams

emptied his pockets and petitioner took two one-dollar bills. Williams then told nearby officers

what happened. Finally, when petitioner was arrested, officers found two one-dollar bills in his

pocket.

¶ 32 Petitioner’s proposed testimony is that he and Williams were acquaintances and had a

dispute over money to purchase a bottle of alcohol. His testimony would directly contradict

Williams’ testimony and create a credibility contest between him and the State’s key witness.

¶ 33 Having satisfied both prongs of the ineffective-assistance standard, petitioner has made a

substantial showing that his constitutional right to effective assistance of counsel was violated.

Therefore, the circuit court erred in dismissing his petition, and we remand for a third-stage

hearing.

¶ 34 Our supreme court has found that the Illinois Constitution mandates “that penalties be

determined “according to the seriousness of the offense.” Ill. Const. 1970 art. I, §11; People v.

Stacey, 193 Ill. 2d 203, 209 (2000). The circuit court judge previously characterized

petitioner’s actions as a “very serious violent offense,” we disagree because petitioner had no

weapon, did not cause any bodily harm, and is alleged to have taken 2 one-dollar bills from

the victim. Supreme Court Rule 366(a)(5) permits a reviewing court, in its discretion, to make

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any order or grant any relief that a particular case may require. Ill. S. Ct. R. 366(a)(5) (eff. Feb.

1, 1994). "This authority includes the power to reassign a matter to a new judge on remand."

Eychaner v. Gross, 202 Ill. 2d 228, 279, (2002). Out of an abundance of caution, we reassigned

this matter to a different judge upon remand.

¶ 35 CONCLUSION

¶ 36 For the foregoing reasons, the judgment of the circuit court dismissing petitioner’s

postconviction petition is reversed, and we remand for a third-stage evidentiary hearing on

petitioner’s claim that he received ineffective assistance of counsel. We also direct the chief

judge or his designee to assign the matter to a different judge for further proceedings.

¶ 37 Reversed and remanded.