2019 IL App (2d) 160439 No. 2-16-0439 Opinion filed May 21, 2019 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 02-CF-3615 ) LUSTER T. SCOTT, ) Honorable ) Liam C. Brennan, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Luster T. Scott, appeals the second-stage dismissal of his petition filed under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The trial court
found that the petition was untimely. We agree with defendant that his petition was timely.
However, we affirm on the merits.
¶2 I. BACKGROUND
¶3 Following a jury trial, defendant was found guilty of two counts of aggravated unlawful
use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2002)) and one
count each of attempted vehicular hijacking (id. §§ 8-4(a), 18-4(a)(4)), attempted armed robbery 2019 IL App (2d) 160439
(id. §§ 8-4(a), 18-2(a)(2)), aggravated battery with a firearm (id. § 12-4.2(a)), and aggravated
battery (id. § 12-4(b)(8)) related to a December 11, 2002, shooting in a bank parking lot.
¶4 Evidence at trial indicated that defendant, who was wearing baggy pants, a dark coat, a
hooded sweatshirt, and a scarf covering the lower half of his face, pulled open the driver’s door
of the vehicle of a delivery courier, Richard Anderson, punched Anderson multiple times, and
tried to pull a courier bag from the backseat. During the struggle, the scarf slipped from
defendant’s face, allowing Anderson to see him. Defendant forcibly took Anderson’s keys,
injuring Anderson in the process. An off-duty police officer, Rodney Hampton, arrived, and
defendant shot him in the leg and fled the scene. Witnesses told the police the direction that he
went, assisting them in locating him hiding near a shed. The police brought defendant back in
handcuffs, and Anderson immediately identified him as the perpetrator. Hampton was unable to
identify defendant but accurately described the clothing that he had been wearing. Two other
witnesses also accurately described defendant’s clothing. Near the shed, the police recovered
clothing that matched the descriptions of defendant’s clothing. A gun was also found that
matched shell casings found at the crime scene and bullet fragments taken from Hampton. A
scarf found near the gun had burrs on it similar to burrs found on defendant’s clothing.
¶5 Before trial, defendant moved to suppress statements that he purportedly made to the
police, arguing that he had not been given Miranda warnings and that the statements were the
product of threats or promises. Defendant did not allege any physical coercion. At a hearing on
the matter, one of the investigating detectives, Terrence Evoy, testified that, when defendant was
interviewed at the police station, defendant had an abrasion on his face from when he was taken
into custody. Evoy testified that he read the Miranda warnings to defendant and that defendant
did not indicate that he wished to exercise his rights. Defendant then made incriminating
-2- 2019 IL App (2d) 160439
statements. Evoy’s testimony was corroborated by Detective Scott Klecka, who was also present.
Both detectives testified that they did not physically strike defendant or threaten him.
¶6 Defendant, who testified after Evoy and Klecka, contended that he was not given
Miranda warnings, he consistently asked for his lawyer, and he never made any incriminating
statements. Defendant said that, when he was arrested, he was thrown to the ground. He was later
placed in a holding cell, and another man was there with him. He was then taken to an
interrogation room. During his testimony, defendant was not specifically asked about physical
coercion. However, defendant was asked on cross-examination if “[a]nything else happened”
during the interrogation other than that he asked to go to the bathroom. Defendant said “[n]o.”
The court suppressed statements made during defendant’s arrest, when he had asked for an
attorney, but allowed statements made to Evoy.
¶7 Defendant was found guilty, and the trial court sentenced him to 22 years’ incarceration.
Defendant appealed, arguing in part that the court erred in failing to suppress his statements. We
affirmed. People v. Scott, 366 Ill. App. 3d 1231 (2006) (table) (unpublished order under Illinois
Supreme Court Rule 23). On April 30, 2007, the United States Supreme Court denied certiorari.
Scott v. Illinois, 550 U.S. 923 (2007).
¶8 In November 2007, defendant, pro se, filed a postconviction petition. The first page
following his petition was a proof of service in which defendant stated that, on October 28, 2007,
he placed the petition in the prison mail system to be mailed to the clerk of the circuit court of
Du Page County. Defendant listed the address for the clerk as “Box 707” in Wheaton and listed
the zip code as “60189-0707,” 1 but listed the zip code at the same box number for the state’s
1 At the bottom of the preprinted form on which defendant wrote his proof of service, the
clerk’s zip code is stated precisely this way.
-3- 2019 IL App (2d) 160439
attorney as “60187.” The clerk’s correct zip code is 60187-0707. Du Page County IL−Clerk of
the Circuit Court, The County of Du Page, https://www.dupageco.org/CourtClerk (last visited
May 20, 2019) [https://perma.cc/9Z79-JJ8M]. Following the proof of service was a motion to
proceed in forma pauperis and an “affidavit.” The affidavit, dated October 28, 2007, but not
notarized, stated that, pursuant to “735 ILCS 5/109 [sic]” and under penalty of perjury,
“everything contained herein” was true and accurate to the best of defendant’s knowledge and
belief. The record contains an envelope for the mailing postmarked October 31, 2007, and it was
filed with the trial court on November 6, 2007.
¶9 The trial court summarily dismissed the petition, finding that it was untimely and did not
state the gist of a constitutional claim. Defendant appealed, contending that his trial counsel was
ineffective for failing to investigate and call a witness at trial who he contended was a witness to
violations of his Miranda rights and to physical abuse by the police. We noted that the trial court
could not dismiss the petition on the basis of untimeliness at the first stage, but we affirmed
because defendant failed to provide an affidavit from the witness. However, when defendant
petitioned for rehearing and presented an affidavit from the witness, Jon McClain, we granted the
petition and reversed and remanded for further postconviction proceedings. People v. Scott, 403
Ill. App. 3d 1202 (2010) (table) (unpublished order under Illinois Supreme Court Rule 23). We
noted that, if defendant’s counsel had presented the witness and the trial court had found him
credible, the result of the motion to suppress might have been different. Thus, in light of the
affidavit, it was at least arguable that counsel was ineffective. Scott, slip order at 7.
¶ 10 In October 2015, after an unexplained lengthy delay, defendant’s postconviction counsel
filed an amended petition raising multiple issues. In particular, the petition alleged that trial
-4- 2019 IL App (2d) 160439
counsel was ineffective for failing to investigate and call McClain and to investigate defendant’s
allegations that the police abused him.
¶ 11 Defendant attached an affidavit in which he averred that he had been placed in a holding
cell with a man he did not know. He averred that he never asked to speak to police officers and
repeatedly asked to speak to his attorney. He was removed to an interrogation room, where Evoy
and Klecka punched him in the face multiple times. Defendant averred that he told his attorney
that he had been abused and that a witness could corroborate his claims, but his attorney told him
that these facts were irrelevant because there was not enough evidence to convict him. He also
averred that he asked his appellate attorneys to raise the issue but that they told him that it should
be saved for a postconviction petition. After defendant was transferred to a different correctional
center, he learned that McClain was the person who had been in the holding cell with him.
¶ 12 Defendant also attached an affidavit from McClain, who averred that he shared the
holding cell with defendant and heard defendant ask for an attorney. He averred that, when
defendant refused to answer questions, an officer said “ ‘You will talk to our detectives.’ ” Later,
two officers came and defendant told them that he wanted to talk to his attorney. The officers
took defendant from the cell. McClain averred that, when defendant returned, he had a cut over
his eye and some swelling, which were not present before he was taken away. According to
McClain, the officers returned, defendant again said that he wanted his attorney and had nothing
to say to them, and they took defendant away again. McClain then did not see him again.
¶ 13 In March 2016, the State moved to dismiss, arguing that the petition was untimely and
that defendant had not made a substantial showing of a constitutional violation. After hearing
argument on both the issue of timeliness and the merits, the trial court dismissed the petition as
untimely without addressing the merits. The court found that defendant had until October 30,
-5- 2019 IL App (2d) 160439
2007, six months from the date that certiorari was denied, to file his petition. Contrary to the law
at the time of the filing, defendant failed to file a notarized affidavit to show that the petition was
put in the prison mail before October 30, 2007. Noting that the law had since changed to allow
proof of mailing under section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109
(West 2016)), the court held without further explanation that, even if the new law applied, the
proof of mailing did not comply with it. Thus, the court found that, because the postmark and
filing were after October 30, 2007, the petition was untimely. Defendant appeals.
¶ 14 II. ANALYSIS
¶ 15 Defendant first contends that the trial court erred when it found that his petition was
untimely. He argues that the change in the law applies retroactively and that his proof of service
and affirmation under penalty of perjury satisfied the new law, making his petition timely. In
reply, the State concedes that the change in the law is retroactive, but argues that it nevertheless
does not apply to defendant and that defendant failed to satisfy its requirements. The State also
argues that, even if the petition was timely, we should affirm on other grounds because defendant
failed to make a substantial showing of a constitutional violation.
¶ 16 In regard to timeliness, “ ‘[u]nder the mailbox rule, pleadings, [and] posttrial motions
[citation], are considered timely filed on the day they are placed in the prison mail system by an
incarcerated defendant [citation].’ ” People v. Liner, 2015 IL App (3d) 140167, ¶ 13 (quoting
People v. Shines, 2015 IL App (1st) 121070, ¶ 31). To rely on the date of mailing as the filing
date, a defendant must provide a proof of mailing that complies with Illinois Supreme Court Rule
12 (eff. Nov. 15, 1992). See Ill. S. Ct. R. 373 (eff. July 1, 2017). When defendant filed his
petition, Illinois Supreme Court Rule 12(b)(3) (eff. Nov. 15, 1992) required a notarized affidavit
stating the time and place of mailing, the complete address that appeared on the envelope, and
-6- 2019 IL App (2d) 160439
that proper postage was prepaid. See Liner, 2015 IL App (3d) 140167, ¶ 14. However, Rule
12(b) was subsequently amended to allow a pro se litigant in a correctional institution to enclose
a certification pursuant to section 1-109 of the Code, in lieu of an affidavit, “of the person who
deposited the document in the institutional mail, stating the time and place of deposit and the
complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept.
19, 2014) (now Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)).
¶ 17 The parties do not point to case law specifically holding that the amendment to Rule
12(b) applies retroactively. Our first step is to “look to the rule itself to ascertain whether its
temporal reach has been specifically articulated.” People v. Easton, 2018 IL 122187, ¶ 15. Here,
the amended rule’s text contains no such articulation, and the supreme court did not delay the
rule’s effective date, which would have expressed an intent that it apply only prospectively
(People v. Barr, 2019 IL App (1st) 163035, ¶ 8). See Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014).
(Although the court delayed the effective date of the amendment that, among many other things,
moved Rule 12(b)(4) to Rule 12(b)(6) (see Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)), the State
does not make any argument relying on that delay.) Thus, we must apply section 4 of the Statute
on Statutes (5 ILCS 70/4 (West 2016)). Easton, 2018 IL 122187, ¶ 17. Under that section, “an
amendment that is purely procedural will apply retroactively unless a constitutional impediment
precludes its application.” Id. That principle applies to amendments to Illinois Supreme Court
rules. Id. ¶ 18. Here, the State concedes that the amendment to Rule 12(b) is generally retroactive
under section 4, but argues that, under People v. Hunter, 2017 IL 121306, it should not apply to
defendant, because his “proceeding” was complete when he filed his proof of service, before the
rule was changed.
-7- 2019 IL App (2d) 160439
¶ 18 In Hunter, our supreme court noted that section 4 “contemplates the existence of
proceedings after the new or amended statute is effective to which the new procedure could
apply.” Id. ¶ 31. The court held that, when proceedings in the trial court were completed before
the amendment, there were no ongoing proceedings to which the amendment could apply. Thus,
because the defendant’s trial court proceedings had been concluded, and no further proceedings
were necessitated by reversible error, applying the amended statute retroactively to the
defendant’s case would effectively create new proceedings for the sole purpose of applying the
statute. Id. ¶ 33; see also Easton, 2018 IL 122187, ¶¶ 21-23.
¶ 19 Here, Hunter is distinguishable. Although defendant had already filed his proof of
service, there were ongoing proceedings to which the amendment could apply. Before the date of
the amendment, we reversed the judgment and remanded the case, in part because the trial court
could not rule on timeliness at the first stage. The court then did not address the matter on
remand until after the rule was amended. Accordingly, there were proceedings to which the
amended rule could apply. As a result, the amended rule applies retroactively to defendant.
¶ 20 The next question, then, is whether defendant met the requirements of the amended rule.
Defendant contends that his proof of service, when read together with his affirmation under
penalty of perjury, complied with the amended rule.
¶ 21 As noted, the amended rule provides that an incarcerated pro se litigant may prove
mailing by enclosing a certification under section 1-109, stating, inter alia, “the complete
address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014)
(now Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)). Section 1-109 requires that the defendant
“shall subscribe to a certification in substantially the following form: Under penalties as
provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the
-8- 2019 IL App (2d) 160439
undersigned certifies that the statements set forth in this instrument are true and correct,
except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily believes the same to be true.” 735
ILCS 5/1-109 (West 2016).
The certification “may be used in the same manner and with the same force and effect as though
subscribed and sworn to under oath.” Id. “ ‘Although minor defects will be excused, proof of
proper service by mail must be made in substantial compliance with the requirements of
Supreme Court Rule 12 [citation].’ ” Liner, 2015 IL App (3d) 140167, ¶ 17 (quoting Ingrassia v.
Ingrassia, 156 Ill. App. 3d 483, 502 (1987)). A slight defect in the form of the proof of service,
such as a typographical error, misspelling, or other inadvertent mistake, will normally not be
fatal. See Curtis v. Pekin Insurance Co., 105 Ill. App. 3d 561, 566 (1982); see also Secura
Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 217 (2009) (citing Curtis, 105
Ill. App. 3d 561).
¶ 22 The State notes that defendant’s proof of service did not contain the certification
language from section 1-109 and that the separate affirmation under penalty of perjury, which
did state it, failed to name the document that it applied to. The State also notes that the proof of
service did not contain the complete address of the court, because it failed to list the street
address and it had the wrong zip code.
¶ 23 Contrary to the State’s contention, the affirmation under penalty of perjury made clear
that it applied to all the documents that defendant filed. It explicitly stated that it applied to
“everything contained herein,” and it was situated immediately after defendant’s proof of service
and motion to proceed in forma pauperis.
-9- 2019 IL App (2d) 160439
¶ 24 As to the address, the question is whether the failure to list the street address and the
misstatement of the zip code were minor defects that could be excused. In Liner, the Third
District held that the failure to include any address was not merely a minor defect, because the
amended rule required the certification to include the complete address to which the document
was to be delivered. Liner, 2015 IL App (3d) 140167, ¶ 17. Merely naming the court in which
the document was to be filed did not constitute substantial compliance. Id. Here, however, the
address was substantially correct. While the street address was not provided, the post office box
was, and the mistake in the zip code was very slight. (It was also completely understandable, as
the preprinted form contained the same mistake.) There is also no dispute that the petition was
delivered to the clerk and filed. Thus, we find that the proof of service substantially complied
with the requirement that it state a complete address. As a result, defendant’s petition was timely
filed, and the court erred in dismissing it as untimely.
¶ 25 Defendant asserts that, because his petition was timely filed, a remand is necessary. The
State, however, contends that we should affirm on other grounds because the petition failed to
make a substantial showing of a constitutional violation. Defendant initially filed a reply brief
standing on his argument that a remand is necessary because his petition was timely. However,
we ordered defendant to file a supplemental brief addressing the merits.
¶ 26 The law is clear that we may affirm the trial court’s judgment on any basis supported by
the record. See People v. Little, 335 Ill. App. 3d 1046, 1051 (2003). At the first stage of
postconviction proceedings, we have held that a procedurally proper summary dismissal based
on an improper ground may be affirmed on other grounds. People v. Dominguez, 366 Ill. App. 3d
468, 473 (2006). That logic has been applied to second-stage proceedings. People v. Snow, 2012
IL App (4th) 110415, ¶ 17.
- 10 - 2019 IL App (2d) 160439
¶ 27 Defendant relies on People v. Lander, 215 Ill. 2d 577 (2005), to assert that we are
required to remand the case. There, a remand was required because the defendant’s attorneys
failed to comply with Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Defendant does not
allege such a violation here. Thus, Lander does not require a remand. Instead we may consider
the merits.
¶ 28 As to the merits, defendant raises two claims that he contends made a substantial showing
of a violation of a constitutional right. He first argues that his counsel was ineffective for failing
to investigate and call McClain to support defendant’s motion to suppress based on his
invocation of his right to counsel. He next argues that counsel was ineffective for failing to
challenge his statements as being the product of physical coercion. The State contends in part
that defendant cannot show prejudice, because the evidence against him was overwhelming.
¶ 29 The Act provides a three-stage process for the adjudication of a postconviction petition.
People v. Johnson, 2017 IL 120310, ¶ 14. At the second stage, “the defendant bears the burden
of making a substantial showing of a constitutional violation” and “all well-pleaded facts that are
not positively rebutted by the trial record are to be taken as true.” People v. Pendleton, 223 Ill. 2d
458, 473 (2006). The court reviews the petition’s factual and legal sufficiency in light of the trial
record and the applicable law. People v. Alberts, 383 Ill. App. 3d 374, 377 (2008). We review the
trial court’s second-stage dismissal de novo. Pendleton, 223 Ill. 2d at 473.
¶ 30 Claims of ineffective assistance of counsel may be raised in a postconviction petition. See
People v. Brown, 236 Ill. 2d 175, 185 (2010) (citing Strickland v. Washington, 466 U.S. 668
(1984)). “To prevail on a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that the deficient performance prejudiced the
defendant.” People v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish deficient performance,
- 11 - 2019 IL App (2d) 160439
the defendant must show that his attorney’s performance fell below an objective standard of
reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20 (2004). Prejudice is established when a
reasonable probability exists that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. A defendant must satisfy both prongs of the Strickland
standard, and the failure to satisfy either prong precludes a finding of ineffective assistance of
counsel. People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010).
¶ 31 Here, as to his claim concerning his right to counsel, defendant failed to make a
substantial showing of a constitutional violation, because he cannot show that he was prejudiced.
Even if he made statements after invoking his right to counsel, the evidence against defendant
was overwhelming independent of those statements. While defendant focuses on Hampton’s
failure to identify him, he ignores that Anderson credibly identified him and that Anderson’s
testimony was corroborated by other evidence. Other witnesses saw defendant flee the scene and
assisted the police in locating defendant hiding near a shed. The clothes described by witnesses
matched defendant’s clothing and items discarded near the shed. The gun involved in the
shooting was found under a deck near the shed. Burrs were found on a scarf found with the gun,
and defendant had similar burrs stuck to his clothing. As a result, aside from any statements that
defendant made to the police, the evidence against him was overwhelming. Thus, defendant has
failed to establish a reasonable probability that, but for counsel’s alleged unprofessional errors,
the result of the proceeding would have been different.
¶ 32 Defendant next contends that counsel was ineffective for failing to investigate and file a
motion to suppress based on his allegations that his statements were the product of physical
coercion. In his petition, he alleged that he told counsel that he was punched by the officers and
that a person in the holding cell could corroborate his claim, but that counsel failed to
- 12 - 2019 IL App (2d) 160439
investigate. In his affidavit, he alleged that counsel told him that these facts were irrelevant
because the State did not have enough evidence against him.
¶ 33 The State contends in part that, as with the issue concerning defendant’s assertion of his
right to counsel, defendant cannot show prejudice because the evidence against him was
overwhelming. However, in the context of prejudice for the filing of successive postconviction
petitions, our supreme court has held as a per se rule that “use of a defendant’s physically
coerced confession as substantive evidence of his guilt is never harmless error.” (Emphasis
omitted.) People v. Wrice, 2012 IL 111860, ¶¶ 71, 84. The court also held that evidence of
coercion is not rendered irrelevant simply because the defendant denied confessing. Id. ¶¶ 53-54.
¶ 34 Here, however, defendant’s assertion that he was physically coerced is rebutted by the
record. Defendant alleged that counsel told him that the potential inadmissibility of his
statements was irrelevant because the State did not have enough evidence to convict him.
However, counsel actually filed a motion to suppress and called defendant to testify at the
hearing on the motion. Plus, at the hearing, defendant never asserted that he was struck by the
detectives. To the contrary, when he was asked on cross-examination whether he recalled
anything else that happened during the interrogation other than that he went to the bathroom,
defendant said “[n]o.” Defendant’s statement that he did not recall anything else that happened
rebuts his later assertion that physical coercion occurred, especially in light of the fact that Evoy
and Klecka testified before defendant did and they said that they did not strike defendant and that
defendant already had an abrasion on his face when they first encountered him. It is unreasonable
to believe that defendant would have never mentioned physical coercion, and would have
specifically answered that nothing else happened, had he been physically coerced and had he
- 13 - 2019 IL App (2d) 160439
attempted to get his attorney to address the matter as he claims. Accordingly, defendant’s claim
fails because it is rebutted by the record.
¶ 35 III. CONCLUSION
¶ 36 The judgment of the circuit court of Du Page County is affirmed.
¶ 37 Affirmed.
- 14 -