NOTICE 2023 IL App (4th) 230054-U FILED This Order was filed under September 13, 2023 Supreme Court Rule 23 and is NO. 4-23-0054 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Hancock County KEVIN R. SIMMONS, ) No. 03CF74 Defendant-Appellant. ) ) Honorable ) Rodney G. Clark, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed the trial court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Defendant, Kevin R. Simmons, appeals from the trial court’s denial of his motion
for leave to file a successive postconviction petition. On appeal, the Office of the State Appellate
Defender (OSAD) was appointed to represent him. OSAD now moves to withdraw as counsel on
the ground no issue of arguable merit can be raised on appeal. Despite being given the
opportunity, defendant did not file a response to the motion to withdraw. After reviewing the
record, we grant OSAD’s motion and affirm the court’s judgment.
¶3 I. BACKGROUND
¶4 A. Jury Trial ¶5 In June 2003, defendant was charged with first degree murder (720 ILCS
5/9-1(a)(2) (West 2002)) and involuntary manslaughter (720 ILCS 5/9-3(a) (West 2002)) for the
death of his wife, Kathy Simmons. At trial, Raymond Boston testified he observed Kathy lying
in the driveway outside of her home. Kathy told Boston she had been “laying there for hours,”
and that she had tripped off the porch. Kathy declined Boston’s multiple offers to call 911.
Boston contacted Mark Jacobs, who arrived, and they both assisted Kathy into a chair. Kathy
eventually became unconscious and stopped breathing. Jacobs called 911 and was instructed to
begin performing cardiopulmonary resuscitation.
¶6 Hancock County Sheriff’s Deputy Jason Livingston testified he spoke to
defendant after Kathy had been taken to the hospital. Defendant told Livingston he last spoke to
Kathy at 9:30 that morning. Defendant told Livingston he had observed several empty beer cans
in the kitchen and was concerned Kathy had been drinking. Kathy was transported by helicopter
to Saint Francis Hospital in Peoria, Illinois. However, because Kathy went into cardiac arrest en
route, the helicopter made an emergency stop at McDonough District Hospital in Macomb,
Illinois.
¶7 Dr. Edwin Card testified he treated Kathy when she arrived at McDonough
District Hospital. Card discovered Kathy’s liver had been severely lacerated and performed an
emergency surgery to stabilize her condition so she could be flown to Saint Francis Hospital.
Card stated Kathy’s liver injury was unlikely caused by falling from a porch but could have been
caused by being kicked in the abdomen. After arriving at Saint Francis Hospital, Kathy died
from her injuries.
¶8 Dr. Brian Mitchell testified he performed an autopsy on Kathy. Kathy’s liver
laceration was caused by blunt force trauma due to being assaulted. Mitchell documented 33
-2- bruises on Kathy’s body. Mitchell stated a fall from a porch would not have caused the bruising
to the various parts of Kathy’s body, nor would it have caused the laceration to her liver.
Mitchell testified Kathy’s injuries were caused by a severe beating.
¶9 Kane Simmons, Kathy and defendant’s son, testified he witnessed defendant
physically abuse Kathy approximately four years earlier. Kane stated he had intervened to stop
defendant from physically harming Kathy. Kristi Simmons, Kathy and defendant’s daughter,
testified she observed defendant physically abuse Kathy on multiple occasions, including
approximately four years earlier, before she moved out of their home.
¶ 10 Benny Dowell testified he spoke with defendant while they were incarcerated
together after Kathy’s death. Defendant told Dowell he pushed Kathy off the porch and then
struck Kathy with piece of wood and kicked her. Dowell also stated he overheard defendant on
the phone in the jail tell his sister to get rid of the piece of wood. A recorded jail phone call
reflected defendant told his sister to retrieve the stick from defendant’s former attorney’s office.
Prior to Dowell’s testimony, defendant called Dowell a “snitch.” In court, Dowell stated he was
not promised anything for his testimony.
¶ 11 Dr. Karla Fischer testified as an expert on domestic violence. Fischer discussed
“battered woman syndrome” and referred to it as the psychological effects of domestic violence.
Fischer stated she was not familiar with Kathy’s specific circumstances. Fischer testified about
the different categories of abuse that occur in violent domestic relationships. Over time, victims
of abuse will internalize rules set by their abuser. Victims of abuse will cope by denying,
minimizing, and rationalizing the abuse they endure. Fischer stated less than one-half of 1% of
abusive acts are reported to police. Further, it is common for victims of domestic violence to
deny they were abused.
-3- ¶ 12 The jury found defendant guilty of first degree murder.
¶ 13 B. Direct Appeal
¶ 14 We recite below only those facts relevant to resolve the issues involved in this
appeal. On direct appeal, defendant raised four issues: (1) the trial court erred when it admitted
Fischer’s testimony regarding the behavior of victims of domestic violence; (2) the court erred
when it admitted Kristi’s and Kane’s testimony regarding defendant’s abuse of Kathy;
(3) testimony elicited by the State regarding other crimes by defendant deprived him of a fair
trial; and (4) the cumulative effect of these three errors warranted a new trial. The appellate court
affirmed. People v. Simmons, No. 3-04-0918 (June 30, 2006) (unpublished order under Illinois
Supreme Court Rule 23).
¶ 15 C. Postconviction Petitions
¶ 16 In May 2007, defendant filed his first postconviction petition. The trial court
appointed postconviction counsel, who filed an amended petition alleging a violation of Brady v.
Maryland, 373 U.S. 83 (1963), based on the State’s failure to disclose an agreement with Dowell
to dismiss his cases in exchange for his testimony at defendant’s trial. The court denied
defendant’s petition after an evidentiary hearing. Defendant appealed, and the appellate court
affirmed. People v. Simmons, No. 3-08-0463 (Dec. 31, 2009) (unpublished order under Illinois
¶ 17 In December 2022, defendant filed a motion for leave to file a successive
postconviction petition. Defendant argued his trial violated multiple provisions of the United
States and Illinois Constitutions because (1) the State put Kathy’s mental state at issue and (2) he
was not afforded the opportunity to cross-examine Kathy to determine if she was actually a
victim of domestic violence because she was deceased. Additionally, defendant asserted his trial
-4- counsel was ineffective for failing to rebut Fischer’s testimony with a defense expert.
¶ 18 The trial court denied the motion for leave, finding defendant failed to
(1) establish cause as he did not “identify an objective factor that impeded his ability to raise
[his] claim” in his initial postconviction petition and (2) demonstrate prejudice. Defendant filed a
timely notice of appeal and the court appointed OSAD to represent him on appeal.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, OSAD filed a motion to withdraw as counsel and a supporting brief in
compliance with Anders v. California, 386 U.S. 738 (1967). OSAD provided defendant a copy of
its motion and supporting memorandum. This court granted defendant leave to file additional
points and authorities on or before June 2, 2023. Defendant has not responded. For the reasons
that follow, we grant OSAD’s motion to withdraw and affirm the trial court’s judgment.
¶ 22 A. The Post-Conviction Hearing Act
¶ 23 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022))
permits a defendant to file a petition alleging errors “in the proceedings which resulted in his or
her conviction there was a substantial denial of his or her rights under the Constitution of the
United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2022).
Postconviction proceedings are collateral to proceedings on direct appeal, centering on
constitutional claims that were not and could not have been previously decided. People v. Moore,
2023 IL App (4th) 210245, ¶ 44. Therefore, issues raised and adjudicated on direct appeal are
barred by res judicata and issues “that could have been raised but were not” are precluded by
forfeiture. Id.
-5- ¶ 24 “The Act itself contemplates the filing of a single petition.” People v. Lusby, 2020
IL 124046, ¶ 27, 182 N.E.3d 563. However, there are two bases upon which the bar against
successive proceedings will be relaxed. People v. Edwards, 2012 IL 111711, ¶ 22, 969 N.E.2d
829. “The first basis for relaxing the bar is when a petitioner can establish ‘cause and prejudice’
for the failure to raise the claim earlier.” Id. “The second basis by which the bar to successive
postconviction proceedings may be relaxed is what is known as the ‘fundamental miscarriage of
justice’ exception.” Id. ¶ 23. However, “[t]o demonstrate such a miscarriage of justice, a
petitioner must show actual innocence.” People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d
609, 621 (2002). Here, defendant’s motion does not make a claim of actual innocence.
Consequently, our focus is the “cause and prejudice” basis.
¶ 25 Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2022)) provides a
defendant must show (1) cause for failing to raise a claim in defendant’s initial postconviction
petition and (2) prejudice resulting from defendant’s failure to raise the claim to obtain leave of
court. Moore, 2023 IL App (4th) 210245, ¶ 45. Establishing cause requires the defendant to
identify an objective factor that impeded the defendant’s ability to raise the claim in the initial
postconviction petition. Id. Showing prejudice requires the defendant to articulate how a “claim
not raised during the initial proceeding so infected the trial that the resulting conviction or
sentence violated due process.” Id. “For a defendant to obtain leave to file a successive
postconviction petition, both prongs of the cause-and-prejudice test must be satisfied.”
(Emphasis added.) People v. Ryburn, 2019 IL App (4th) 170779, ¶ 20, 134 N.E.3d 348.
¶ 26 “[T]he cause-and-prejudice determination [is] made on the pleadings prior to the
first stage of postconviction proceedings.” People v. Smith, 2014 IL 115946, ¶ 33, 21 N.E.3d
1172. “To meet the cause-and-prejudice test for a successive petition requires the defendant to
-6- ‘submit enough in the way of documentation to allow a circuit court to make that
determination.’ ” Id. ¶ 35 (quoting People v. Tidwell, 236 Ill. 2d 150, 161, 923 N.E.2d 728, 734-
35 (2010)). A defendant’s motion for leave 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
documentation is insufficient to justify further proceedings.” Smith, 2014 IL 115946, ¶ 35. “An
appellate court reviews the first-stage dismissal of a postconviction petition de novo.” People v.
White, 2020 IL App (4th) 160793, ¶ 26, 153 N.E.3d 1084.
¶ 27 B. This Case
¶ 28 On appeal, OSAD considered raising whether (1) the trial court complied with the
procedural requirements of the Act; (2) defendant’s claims regarding Fischer’s testimony are
barred by res judicata; (3) defendant demonstrated cause and prejudice regarding Fischer’s
testimony; and (4) defendant established cause and prejudice regarding his ineffective assistance
of counsel claim. OSAD concluded the issues are without arguable merit and has moved to
withdraw.
¶ 29 1. Compliance with the Act
¶ 30 First, OSAD analyzed whether any procedural error occurred warranting reversal
and concluded no such error exists. We agree.
¶ 31 “The Act provides a three-stage process for the adjudication of postconviction
petitions.” People v. Buffer, 2019 IL 122327, ¶ 45, 137 N.E.3d 763. “At the first Stage, the
circuit court has 90 days to review a petition and may summarily dismiss it if the court finds it is
frivolous and patently without merit.” People v. Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999,
1007 (2006). “If the petition is not dismissed within that 90-day period, the circuit court must
-7- docket it for further consideration.” Id. Once a postconviction petition moves from the first to the
second stage, the trial court may appoint counsel to represent the defendant and the State may
file responsive pleadings. People v. House, 2021 IL 125124, ¶ 17, 185 N.E.3d 1234.
¶ 32 Defendant filed his motion for leave to file a successive postconviction petition on
December 7, 2022. The trial court denied defendant’s motion 27 days later, on January 3, 2023.
Nothing in the record indicated the State offered any input or participated in the court’s denial of
defendant’s motion. Because the dismissal occurred within the 90-day period allowed and there
is no evidence the State improperly participated in the court’s denial, no procedural error was
committed in the court’s dismissal of defendant’s motion.
¶ 33 2. Res Judicata Regarding Fischer’s Testimony
¶ 34 Next, OSAD evaluated defendant’s argument Fischer’s testimony placed Kathy’s
“mental state” at issue and deprived him of the opportunity to cross-examine Kathy because she
was deceased, violating (1) his right to a trial by jury (Ill. Const. 1970, art. 1, § 13), (2) due
process clauses (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. 1, § 2), and (3) confrontation
clauses (U.S. Const., amend. VI; Ill. Const. 1970, art. 1, § 8). However, defendant’s
constitutional claims regarding Fischer’s testimony are barred by the doctrine of res judicata.
¶ 35 As previously stated, “[t]he purpose of a postconviction proceeding is to permit
inquiry into constitutional issues involved in the original conviction and sentence that were not,
and could not have been, adjudicated previously on direct appeal.” People v. English, 2013 IL
112890, ¶ 22, 987 N.E.2d 371. “Issues that were raised and decided on direct appeal are barred
by res judicata, and issues that could have been raised on direct appeal, but were not, are
forfeited.” Id. Moreover, “ ‘[a] defendant cannot obtain relief under the [Act] by rephrasing
previously addressed issues in constitutional terms.’ ” People v. Haines, 2021 IL App (4th)
-8- 190612, ¶ 19, 188 N.E.3d 825 (quoting People v. Franklin, 167 Ill. 2d 1, 23, 656 N.E.2d 750
(1995)); see People v. Gaines, 105 Ill. 2d 79, 90, 473 N.E.2d 868, 874 (1984) (stating
res judicata cannot “be defeated by rephrasing previously addressed issues in constitutional
terms when raising them in [a] post-conviction petition”).
¶ 36 On direct appeal, defendant argued Fischer’s testimony impinged on the jury’s
ability to determine the credibility of Kathy’s statement to Boston. The State argued the purpose
of Fischer’s testimony was to explain why Kathy told Boston she had fallen off the porch and
asked him not to call 911. In 2006, the appellate court affirmed, finding the trial court did not
abuse its discretion in permitting Fischer to testify. Simmons, No. 3-04-0918 at 17. Additionally,
the appellate court found Fischer’s testimony was offered to explain Kathy’s behavior, not
impeach her statements to Boston. Id.
¶ 37 Defendant’s prior argument that Fischer’s testimony touched on Kathy’s
credibility is recast to assert Fischer’s testimony touched on Kathy’s mental state and—because
Kathy was deceased—he was unable to cross-examine her. However, “a purpose of cross-
examination is to test the witness’ credibility.” Gossard v. Kalra, 291 Ill. App. 3d 180, 182, 684
N.E.2d 410, 412 (1997). Defendant’s argument simply rephrases his previously raised issue with
Fischer’s testimony pertaining to Kathy’s statements to Boston with a more expansive set of
alleged constitutional violations. This court already addressed the admissibility of Fischer’s
testimony during the direct appeal. We previously rejected defendant’s claim the trial court erred
by admitting Fischer’s testimony at trial. Consequently, we conclude his attempt to reframe the
same argument in a postconviction petition as various violations of both the Illinois and United
States Constitutions is barred by res judicata.
¶ 38 3. Cause and Prejudice Regarding Fischer’s Testimony
-9- ¶ 39 Further, even if defendant’s contention that Fischer’s testimony violated various
constitutional provisions was not barred by res judicata, he has not made sufficient allegations to
satisfy the elements of the cause-and-prejudice test.
¶ 40 Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2020)) provides a
defendant must show (1) cause for failing to raise a claim in the defendant’s initial
postconviction petition and (2) prejudice resulting from the defendant’s failure to raise the claim
to obtain leave of court. Moore, 2023 IL App (4th) 210245, ¶ 45. Showing cause requires
identifying an objective factor that impeded the defendant’s ability to raise the claim in the initial
postconviction petition. Id. Showing prejudice requires the defendant to articulate how a “claim
not raised during the initial proceeding so infected the trial that the resulting conviction or
sentence violated due process.” Id. “For a defendant to obtain leave to file a successive
postconviction petition, both prongs of the cause-and-prejudice test must be satisfied.”
(Emphasis added.) Ryburn, 2019 IL App (4th) 170779, ¶ 20.
¶ 41 Defendant argues Fischer’s testimony placing Kathy’s “mental state” at issue and
his inability to cross-examine Kathy was a matter of first impression, resulting in a showing of
cause. see People v. Thompson, 383 Ill. App. 3d 924, 929, 890 N.E.2d 1119, 1125 (2008)
(“Cause may include a showing that a constitutional claim was so novel that its legal basis was
not reasonably available to defendant’s counsel.”).
¶ 42 As the appellate court found on direct appeal, Fischer’s testimony was not offered
to impeach Kathy. Fischer’s testimony was offered as a qualified expert to explain how a victim
of domestic violence may behave. As the court noted, “[Fischer’s] testimony simply gave the
jury information which it could use to form its own conclusion, should jurors decide to believe”
Kane’s and Kristi’s testimony. Simmons, No. 3-04-0918 at 18. Additionally, Fischer’s testimony
- 10 - was not novel. On direct appeal, the court noted, in People v. Turner, 241 Ill. App. 3d 236, 243,
608 N.E.2d 906, 912 (1993), no error was found where a police officer testified it was not
unusual for child victims of sexual abuse to deny being abused when first confronted. Simmons,
No. 3-04-0918 at 18.
¶ 43 We also note the issue of expert testimony and battered woman syndrome arose in
People v. Howard, 305 Ill. App. 3d 300, 712 N.E.2d 380 (1999), several years before
defendant’s trial. The Howard court found the trial court abused its discretion in permitting the
expert testimony of a psychologist on battered woman syndrome because it did not aid the jury in
reaching its conclusion and bolstered the credibility of a witness. Id. at 308-09. In this case,
Fischer’s testimony was offered to explain Kathy’s behavior and did not bolster the credibility of
any witness. In fact, on direct appeal, the court stated Fischer’s testimony aided the jury only
insofar as the jury found Kane and Kristi’s testimony credible. Simmons, No. 3-04-0918 at 18.
Thus, there is nothing novel about Fischer’s testimony that would show cause for why defendant
could not have raised the issue in his initial postconviction petition. Because defendant must
satisfy both requirements of the cause-and-prejudice test and he fails to satisfy the cause
requirement, we need not address whether he has met the prejudice requirement. People v. Balle,
379 Ill. App. 3d 146, 151, 882 N.E.2d 1275, 1279 (2008).
¶ 44 4. Cause and Prejudice Regarding Ineffective-Assistance-of-Counsel Claim
¶ 45 Finally, OSAD considered defendant’s argument his trial counsel was ineffective
for failing to call an expert witness to rebut Fischer’s testimony.
¶ 46 Defendant’s motion for leave fails to show an objective factor interfered with his
ability to raise the issue of ineffective assistance of counsel for failure to call an expert witness to
rebut Fischer’s testimony in his initial postconviction petition. The same record available to
- 11 - defendant now was available to him during his original postconviction petition. Moreover,
defendant provides no explanation why he did not include his ineffective assistance claim in his
initial petition. Thus, defendant fails to make a prima facie cause showing for the purpose of
satisfying the cause-and-prejudice test. Even assuming, arguendo, defendant could show cause,
he has not shown trial counsel’s failure to call an expert witness to rebut Fischer’s testimony
prejudiced him.
¶ 47 Claims of ineffective assistance of counsel are guided by the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), which requires a defendant to show both
that (1) counsel’s performance “fell below an objective standard of reasonableness” and (2) the
deficient performance prejudiced the defense. “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.” People v. Hodges, 234 Ill. 2d 1, 17, 912
N.E.2d 1204, 1212 (2009). 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.
¶ 48 Generally, decisions about which witnesses to call at trial and what evidence to
present are matters of trial strategy. Id. ¶ 79. Matters of trial strategy “are generally immune from
claims of ineffective assistance of counsel.” Id. 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 proposed witness. People v. Johnson, 183 Ill. 2d 176, 192, 700
N.E.2d 996, 1004 (1998). In the absence of such an affidavit, a reviewing court cannot determine
- 12 - whether the proposed witness could have provided testimony or information favorable to the
defendant. Id.
¶ 49 Here, defendant did not attach to his petition an affidavit from any purported
expert witness to counter Fischer’s testimony, nor did he identify any potential expert witness.
For this reason alone, defendant’s ineffective assistance claim fails. Id.; see People v. Delton,
227 Ill. 2d 247, 255, 882 N.E.2d 516, 520 (2008) (stating failure to support postconviction
petition with some factual documentation or some explanation of its absence justifies summary
dismissal). The standard set forth in Strickland requires a defendant to “affirmatively prove”
prejudice resulted from trial counsel’s error. Strickland, 466 U.S. at 693. “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” Id. “ ‘Satisfying the prejudice prong necessitates a showing of actual prejudice, not
simply speculation that [the] defendant may have been prejudiced.’ ” People v. Johnson, 2021 IL
126291, ¶ 55, 202 N.E.3d 220 (quoting People v. Patterson, 2014 IL 115102, ¶ 81, 25 N.E.3d
526).
¶ 50 Moreover, defendant’s contention is far too speculative, as he does not describe
the testimony a potential rebuttal expert witness would offer to support his allegation. Further,
any prejudice claim would require this court to assume the jury would have found such
testimony credible and a refutation of Fischer’s testimony. It is a “well-established rule that
prejudice under Strickland cannot be based on mere conjecture or speculation.” (Internal
quotation marks omitted.) Id. ¶ 58. Because defendant cannot show prejudice, we need not
address trial counsel’s performance. People v. Ashford, 168 Ill. 2d 494, 502, 660 N.E.2d 944,
948 (1995) (stating where a “defendant fails to show prejudice, we need not address the
adequacy of trial counsel’s performance”).
- 13 - ¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we conclude there are no issues of arguable merit
defendant can raise on appeal. Accordingly, we grant OSAD’s motion to withdraw and affirm
the trial court’s judgment.
¶ 53 Affirmed.
- 14 -