People v. Truidalle

2020 IL App (1st) 181228-U

• Court: Appellate Court of Illinois
• Decided: November 10, 2020
• Docket: 1-18-1228
• Status: Unpublished

Opinion

2020 IL App (1st) 181228-U

No. 1-18-1228

Order filed November 10, 2020.

Second 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

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 96 CR 265(02) ) FREDEAL TRUIDALLE, ) The Honorable ) Lawrence E. Flood and Defendant-Appellant. ) Lawrence P. Fox, ) Judges Presiding.

JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: The trial court properly denied defendant leave to file a successive postconviction petition where the petition did not allege a claim of constitutional dimension and his consecutive sentences were statutorily authorized. ¶2 Defendant Fredeal Truidalle appeals from the trial court’s denial of leave to file a

successive petition under the Post-Conviction Hearing Act (Act). 722 ILCS 5/122-1 et seq. No. 1-18-1228

(West 2016). 1 Specifically, defendant contends that the court’s denial was erroneous because

counsel on direct appeal failed to challenge the imposition of consecutive sentences under

section 5-8-4 of the Code of Corrections (730 ILCS 5/5-8-4 (West 1994)), and defendant has

satisfied the cause-and-prejudice test applicable to successive petitions. For the following

reasons, we affirm the trial court’s judgment.

¶3 I. Background

¶4 Defendant and codefendant Enoch Wilder were jointly indicted on 51 counts for events

that occurred on November 3, 1995. Following a jury trial, defendant was found guilty of the

first-degree murder, armed robbery and aggravated kidnapping of Robbie Barrett, as well as the

armed robbery of Robert Johnson and Winorva Nichols. Defendant received a 55-year prison

term for murder and four 15-year prison terms for armed robbery and aggravated kidnapping.

The 15-year terms were to be served concurrently with each other but consecutively to the

murder sentence. On direct appeal, the reviewing court reversed and remanded for a new trial

based on cumulative errors. People v. Truidalle, 1-99-3679 (October 12, 2001) (unpublished

order under Illinois Supreme Court Rule 23).

¶5 On the same day that the reviewing court granted defendant a new trial, the reviewing

court granted codefendant sentencing relief. Specifically, codefendant was originally sentenced

to 45 years in prison for first-degree murder, 15 years for armed robbery and 15 years for

aggravated kidnapping. The trial court had ordered that the 15-year terms were to be served

concurrently with each other but consecutively to the murder sentence, pursuant to section 5-8-

4(b). 2

1 The record contains alternative spellings of defendant’s surname as well as multiple aliases. 2 We note that section 5-8-4 has historically been troublesome for practitioners and courts alike. People v. Wilder, 325 Ill. App. 3d 987, 1002-03 (2001) (stating, “[w]e are acutely aware that applying

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¶6 On codefendant’s direct appeal, the reviewing court found that whether either subsection

5-8-4(a) or (b) authorized consecutive sentences first depended on whether the offenses were

committed in a single course of conduct. Essentially, subsection (a) authorized consecutive

sentences for certain triggering offenses committed in a single course of conduct and subsection

(b) authorized consecutive sentences for offenses committed in separate courses of conduct

where necessary to protect the public. People v. Wilder, 325 Ill. App. 3d 987, 998-1000 (2001).

The decision in Wilder, like others before it, treated subsections (a) and (b) as mutually

exclusive. See, e.g., People v. Fritz, 225 Ill. App. 3d 624, 628 (1992) (“We are of the opinion

that if consecutive sentences are barred by section 5–8–4(a), then they cannot be imposed under

section 5–8–4(b).”); People v. Kagan, 283 Ill. App. 3d 212, 221-23 (1996) (similar); People v.

Cooper, 239 Ill. App. 3d 336, 359 (1992) (similar).

¶7 The reviewing court reversed and remanded for the trial court to determine whether

codefendant’s offenses were or were not committed in a single course of conduct. Wilder, 325

Ill. App. 3d at 1002. On January 16, 2002, codefendant’s sentences were ordered to be served

concurrently. While codefendant’s proceedings are not included in our record on appeal, it

appears that the trial court found the offenses were committed in a single course of conduct,

triggering subsection (a), but that subsection (a)’s requirements for imposing consecutive

sentences were not otherwise satisfied.

¶8 In 2003, defendant was retried. The jury again found defendant guilty of Barrett’s murder

as well as the armed robbery of Barrett, Johnson and Nichols. At sentencing, the State argued

that the sentences for Barrett’s murder and armed robbery should be served consecutively under

section 5-8-4(a).

sections 5–8–4(a) and 5–8–4(b) has been extremely difficult for trial courts as well as for courts of review”).

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¶9 The trial court found that defendant was a recidivist, a “hard core” career criminal. The

court sentenced defendant to 54 years for first-degree murder, and imposed 15-year terms for the

armed robbery counts, to be served concurrently with each other but consecutively to the murder

sentence, “which I find also to be necessary for the protection of society.” (Emphasis added.) It

is not entirely clear from the court’s findings whether it purported to impose consecutive

sentences under subsection 5-8-4(a), subsection 5-8-4(b) or both.

¶ 10 On defendant’s second direct appeal, he did not challenge the imposition of consecutive

sentences and we affirmed the judgment. People v. Truidalle, No. 1-04-1044 (June 1, 2006)

(unpublished order under Illinois Supreme Court Rule 23). Defendant then began filing several

collateral pleadings.

¶ 11 Pertinent to this appeal, in 2007, defendant filed a petition under the Act, alleging that

appellate counsel was ineffective for failing to argue on direct appeal that the offenses were

committed in a single course of conduct and that he was not convicted of offenses that triggered

consecutive sentencing under 5-8-4(a). The trial court dismissed the petition as frivolous and

patently without merit.

¶ 12 On appeal, the State Appellate Defender moved to withdraw as counsel pursuant to

Pennsylvania v. Finley 481 U.S. 551 (1987), arguing that the appeal lacked arguable merit. 3 In

counsel’s supporting memorandum, she stated that she had considered whether defendant alleged

the gist of a meritorious claim that his appellate counsel was ineffective for failing to challenge

the consecutive nature of his sentences. Counsel acknowledged that defendant contended that

consecutive sentences were improper under section 5-8-4(a) but counsel believed the trial court

3 We note that the Finley motion is not included in our record on appeal. While the parties have apparently agreed to cite to the copy of the motion included in defendant’s appendix, this does not comply with our supreme court’s rules. Notwithstanding this deficiency, the incomplete record does not impact our decision. Ill. S. Ct. R. 323 (eff. July 1, 2017).

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imposed consecutive sentences under subsection 5-8-4(b), not subsection (a). The reviewing

court granted counsel’s Finley motion and affirmed the dismissal of defendant’s petition. People

v. Truidalle, 385 Ill. App. 3d 1133 (2008) (unpublished order Illinois under Supreme Court Rule

23).

¶ 13 Nine years later, on December 5, 2017, defendant moved for leave to file a successive

pro se petition under the Act, claiming that his consecutive sentences under section 5-8-4(b)

were unconstitutional. In defendant’s motion and attached petition, he alleged that the offenses

were committed in a single course of conduct, triggering subsection 5-8-4(a), not subsection 5-8-

4(b). Defendant essentially argued that this required concurrent sentences absent offenses

triggering consecutive sentences. Defendant alleged, albeit inaccurately, that the Illinois

Supreme Court had found codefendant’s consecutive sentences were unconstitutional.

Additionally, he argued he had cause for failing to raise the claim in his first petition because at

that time, codefendant’s consecutive sentences had not yet been ordered to run concurrently.

Notably, this pleading did not argue that counsel on direct appeal was ineffective for failing to

challenge the consecutive nature of his sentences. The trial court denied defendant leave to file a

successive petition.

¶ 14 II. Analysis

¶ 15 On appeal, defendant asserts the trial court erroneously denied him leave to file a

successive petition because he satisfied the cause-and-prejudice test with respect to his

sentencing challenge. We review this issue de novo review. People v. Robinson, 2020 IL 123849,

¶ 39. Accordingly, we may affirm the trial court’s judgment on any basis in the record. People v.

Green, 2012 IL App (4th) 101034, ¶ 32.

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¶ 16 The Act provides a statutory remedy for claims that substantial violations of a

defendant’s constitutional rights occurred at trial, but the Act also contemplates the filing of only

one petition. Robinson, 2020 IL 123849, ¶ 42. A court may grant leave to file a successive

petition, however, where the defendant establishes cause for his failure to raise the claim in his

initial petition and resulting prejudice. 725 ILCS 5/122-1(f) (West 2016); People v.

Pitsonbarger, 205 Ill. 2d 444, 459 (2002) (stating that “because this is a successive petition in

which petitioner makes no claim of actual innocence ***, the claims raised in his petition must

be considered waived unless application of the cause-and-prejudice test dictates otherwise”). In

addition, a defendant establishes cause by identifying an objective factor that impeded his ability

to raise his claim during his initial proceedings under the Act. 725 ILCS 5/122-1(f) (West 2016).

Furthermore, a defendant demonstrates prejudice by showing that the newly claimed error so

infected the trial that his conviction or sentence violated his right to due process. 725 ILCS

5/122-1(f) (West 2016).

¶ 17 Reviewing courts may uphold the denial of leave to file a successive petition under either

prong of the cause-and-prejudice test. People v. Morrow, 2019 IL App (1st) 161208, ¶ 57. We

find the trial court properly denied defendant leave to file his successive petition because

defendant is unable to establish prejudice.

¶ 18 As stated, the Act provides a means to remedy substantial violations of constitutional

rights that occurred at trial or sentencing. People v. Allen, 2015 IL 113135, ¶ 20. Conversely,

deprivations of purely statutory rights are not cognizable in postconviction proceedings.

Pitsonbarger, 205 Ill. 2d at 474. Notwithstanding that the motion for leave to file stated that

defendant’s sentences were “unconstitutional,” the crux of his assertion was that section 5-8-4

did not authorize consecutive sentences. Because this is a purely statutory contention, defendant

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did not establish that any error violated his constitutional rights, as required to satisfy the

prejudice prong.

¶ 19 According to defendant on appeal, claims that trial counsel was ineffective at sentencing

are constitutional claims cognizable under the Act, as are claims that counsel was ineffective on

direct appeal. While we have no qualms with either proposition, neither defendant’s motion for

leave to file a successive petition nor the petition attached thereto claimed that trial counsel was

ineffective at sentencing or that appellate counsel was ineffective on direct appeal.

¶ 20 “Any claim of substantial denial of constitutional rights not raised in the original or an

amended petition is waived.” 725 ILCS 5/122-3 (West 2016). Reviewing courts cannot excuse a

defendant’s waiver when, on appeal, he forwards a contention not included in his postconviction

petition. People v. Williams, 2015 IL App (1st) 131359, ¶ 14. While courts must examine his

petition with a lenient eye, a petitioner must clearly set forth the manner in which his

constitutional rights were violated. See People v. Mars, 2012 IL App (2d) 110695, ¶ 32.

Furthermore, “claims of ineffective assistance of appellate counsel cannot be inferred by

postconviction appellate counsel simply because issues of trial error were not raised on direct

appeal.” People v. Cole, 2012 IL App (1st) 102499, ¶ 13. Liberal construction of a defendant’s

pleadings does not include recognizing “implicit” ineffective assistance of appellate counsel

claims. Id. ¶ 14.

¶ 21 The pleading before us did not claim that counsel on direct appeal was ineffective. While

defendant’s initial petition did argue that appellate counsel was ineffective for failing to

challenge the imposition of consecutive sentences, that is not the pleading before us. Because we

cannot infer an ineffective assistance of counsel claim from this petition, defendant has failed to

raise a claim of constitutional dimension. See also People v. Williams, 2015 IL App (1st)

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131359, ¶ 22 (finding that a similarity in subject matter did not permit the reviewing court to

“simply substitute defendant’s argument on appeal that his appellate counsel was ineffective into

his petition’s argument that his trial counsel was ineffective” (emphases in original)); People v.

Reed, 2014 IL App (1st) 122610, ¶ 61 (finding that to construe an ineffective assistance of trial

counsel claim as an ineffective assistance of appellate counsel claim “would require more than a

liberal construction”); Mars, 2012 IL App (2d) 110695, ¶¶ 31, 33 (affirming the first-stage

dismissal of a postconviction petition where the petition’s allegation that “defense counsel” was

ineffective did not support an inferred allegation that appellate counsel was ineffective).

¶ 22 Even assuming that defendant’s pleading included a claim that counsel was ineffective on

direct appeal, we would still find the trial court properly denied leave to file a successive

petition, as that claim would be meritless. To prevail on an ineffective assistance of counsel

claim, a defendant must show that counsel’s performance was deficient and that this deficient

performance prejudiced him. People v. Murphy, 2019 IL App (4th) 170646, ¶ 34.

¶ 23 Defendant essentially contends that codefendant’s case demonstrates that the offenses

here occurred in a single course of conduct, implicating subsection (a) instead of subsection (b).

He also contends that he lacked the triggering offenses required to impose consecutive sentences

under subsection (a). The relevant version of section 5-8-4(a) states as follows:

“The court shall not impose consecutive sentences for offenses which were

committed as part of a single course of conduct during which there was no

substantial change in the nature of the criminal objective, unless, one of the

offenses for which defendant was convicted was a Class X or Class 1 felony and

the defendant inflicted severe bodily injury, or where the defendant was convicted

of a violation of Section 12–13 or 12–14 of the Criminal Code of 1961, in which

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event the court shall enter sentences to run consecutively.” 730 ILCS 5/5-8-4

(West 1994).

¶ 24 Here, the jury found defendant guilty of the armed robbery of Barrett, a Class X felony.

720 ILCS 5/18-2 (West 1994). While first-degree murder is not itself a Class X or Class 1

felony, Barrett’s death nonetheless occurred during the course of the armed robbery.

Additionally, it is well settled that the death of the victim of a triggering offense can support

section 5-8-4(a)’s severe bodily injury requirement. People v. Causey, 341 Ill. App. 3d 759, 772

(2003); People v. Carney, 327 Ill. App. 3d 998, 1002 (2002). Accordingly, consecutive sentences

were appropriate under subsection (a). People v. Harris, 2013 IL App (1st) 120498, ¶ 37 (finding

section 5-8-4(a) authorized consecutive sentences where the victim of the armed robbery was

also shot).

¶ 25 Defendant also argues that because he was culpable as codefendant’s accomplice, his

sentences necessarily should be the same as codefendant’s sentences. This ignores that defendant

and codefendant were tried separately and that their convictions, albeit very similar, were not

identical. To the extent that an error could have occurred in imposing concurrent sentences upon

codefendant, it would not render defendant’s consecutive sentences erroneous.

¶ 26 Here, defendant’s consecutive sentences were proper. It follows that appellate counsel

could not have been deficient for failing to challenge them on direct appeal and that defendant

could not have been prejudiced by counsel’s failure to do so. Because defendant could not set

forth an ineffective assistance of counsel claim, he could not satisfy the prejudice prong of the

cause-and-prejudice test either. Consequently, the trial court did not err by denying defendant

leave to file a successive petition.

¶ 27 III. Conclusion

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¶ 28 The trial court properly denied defendant leave to file a successive postconviction

petition, as defendant did not allege that counsel on direct appeal was ineffective. Even if

defendant had alleged as such, counsel was not ineffective for failing to raise a meritless issue.

¶ 29 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 30 Affirmed.

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