People v. Wiedman

2021 IL App (4th) 200342-U

• Court: Appellate Court of Illinois
• Decided: September 22, 2021
• Docket: 4-20-0342
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2021 IL App (4th) 200342-U FILED Supreme Court Rule 23 and September 22, 2021 is not precedent except in the NO. 4-20-0342 Carla Bender limited circumstances 4th District Appellate allowed 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. ) Macon County DUANE A. WIEDMAN, ) No. 13CF856 Defendant-Appellant. ) ) Honorable ) Thomas E. Griffith Jr., ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Holder White concurred in the judgment.

ORDER ¶1 Held: The trial court did not err in granting the State’s motion to dismiss defendant’s amended postconviction petition at the second stage of the postconviction proceedings when defendant did not make a substantial showing of a constitutional violation either regarding counsel’s performance or as a denial of due process. That is, defendant was unable to demonstrate prejudice from either counsel’s failure or the trial court’s failure to ensure the presence of a sign-language interpreter at defendant’s guilty plea hearing.

¶2 Defendant, Duane A. Wiedman, pleaded guilty to one count of burglary, and the

trial court sentenced him as a Class X offender to 10 years in prison, followed by 3 years of

mandatory supervised release (MSR). Defendant did not file a direct appeal. He later filed a pro se

postconviction petition, which the trial court summarily dismissed. He appealed the dismissal, and

this court reversed and remanded for further proceedings. People v. Wiedman, 2019 IL App (4th)

160869-U. Upon remand, appointed counsel filed an amended postconviction petition with

defendant’s supporting affidavit, and the State filed a motion to dismiss defendant’s amended petition. After a hearing on the State’s motion, the court dismissed defendant’s petition. Defendant

appeals, arguing the court erred in dismissing his petition when he made a substantial showing that

his constitutional right (1) to the effective assistance of counsel and (2) to due process were

violated when his attorney and the trial court, respectively, failed to secure an interpreter for his

plea hearing and sentencing. Defendant also claims the court erred in finding (1) defendant had

waived his claims by not filing a direct appeal and (2) he failed to assert in his petition that he

wanted to withdraw his plea. Because we agree with the trial court that the record belies

defendant’s claims, we affirm the second-stage dismissal.

¶3 I. BACKGROUND

¶4 In November 2013, in a fully negotiated plea agreement, defendant pleaded guilty

to burglary, a Class 2 offense (720 ILCS 5/19-1(a) (West 2012)), in exchange for the State’s

dismissal of one count of theft and a sentence of 10 years in prison, followed by a 3-year term of

MSR. Defendant was subject to sentencing as a Class X offender due to his criminal history. He

did not file a direct appeal.

¶5 In June 2016, defendant filed a pro se postconviction petition alleging, inter alia,

he was denied due process when the trial court did not make an interpreter available for him at his

plea hearing or, in the alternative, his counsel was ineffective for failing to ensure an interpreter’s

presence. The trial court summarily dismissed defendant’s petition as frivolous and patently

without merit, finding defendant “was present in court and understood the charge, the penalties,

and his constitutional rights before knowingly, voluntarily, and intelligently entering into his plea

agreement.” After the court denied defendant’s motion to reconsider, he appealed.

-2- ¶6 This court reversed and remanded for further proceedings, finding the allegations

“met the low threshold of stating the gist of the constitutional claims of ineffective assistance of

counsel and/or a due-process violation.” Wiedman, 2019 IL App (4th) 160869-U, ¶ 13.

¶7 On remand, the trial court appointed counsel, who filed an amended petition for

postconviction relief. The amended petition alleged (1) defendant was legally deaf, (2) the trial

court had previously appointed a sign-language interpreter for defendant, who was present and

assisted defendant at his preliminary hearing, (3) counsel requested an interpreter at defendant’s

plea hearing, (4) the court, without objection, conducted the plea hearing and sentencing without

an interpreter present, (5) with no interpreter, defendant failed to “fully understand the nature and

consequences of his plea agreement,” specifically that he would receive a three-year MSR term,

(6) defendant’s counsel rendered ineffective assistance when he failed to ensure the presence of

an interpreter, and (7) the court violated defendant’s due-process and equal-protection rights by

accepting defendant’s plea without an interpreter present.

¶8 The State filed a motion to dismiss defendant’s amended petition, claiming

defendant failed to meet his burden of showing that counsel’s performance was deficient and that

he was prejudiced by counsel’s failure to secure an interpreter at his plea hearing. The State also

claimed defendant had forfeited his argument by not raising the issue in a direct appeal when the

bases for his argument appeared in the record.

¶9 Following a hearing on the State’s motion to dismiss defendant’s petition, after

considering the respective arguments, the trial court granted the State’s motion and dismissed

defendant’s amended petition. The court noted it had reviewed the report of proceedings from the

plea hearing multiple times and it was “very clear *** that the defendant understood exactly what

was occurring.”

-3- ¶ 10 This appeal followed.

II. ANALYSIS

¶ 11 At the second stage of a postconviction proceeding, a defendant’s petition must

demonstrate a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d

458, 473 (2006). All well-pleaded facts that are not positively rebutted by the record must be taken

as true. Id. When, as here, a postconviction petition reaches the second stage, the trial court reviews

the petition and accompanying documents to ascertain whether the petitioner has made a

substantial showing of a constitutional violation. People v. Brown, 2017 IL 121681, ¶ 24. Upon a

substantial showing of a constitutional violation, the petition must be advanced to the third stage,

where the trial court conducts an evidentiary hearing. Id. If no such showing is made, the petition

should be dismissed. Id. “We review de novo the dismissal of a postconviction petition without an

evidentiary hearing.” Id.

¶ 12 The sixth amendment to the United States Constitution (U.S. Const., amend. VI)

guarantees a criminal defendant the right to the effective assistance of counsel at all critical stages

of the criminal proceedings, including the entry of a guilty plea. Brown, 2017 IL 121681, ¶ 25. A

claim that a defendant was denied his constitutional right to the effective assistance of counsel is

generally governed by the two-pronged Strickland test. Id. (citing Strickland v. Washington, 466

U.S. 668 (1984)). Under Strickland, a defendant must establish that (1) his counsel’s performance

fell below an objective standard of reasonableness and (2) he was prejudiced by counsel’s deficient

performance. Id. A court may, without addressing whether counsel’s performance was deficient,

dispose of an ineffectiveness claim if there is an insufficient showing of prejudice. People v.

Givens, 237 Ill. 2d 311, 331 (2010).

-4- ¶ 13 As stated, the two-part Strickland test applies to a claim that trial counsel was

ineffective during the guilty-plea process. Brown, 2017 IL 121681, ¶ 26. For a guilty-plea

defendant, the performance prong of the test remains the same. Id. However, for purposes of the

prejudice prong, a guilty-plea defendant must show there is a reasonable probability that, but for

counsel’s errors, he would not have pled guilty and would have insisted on going to trial. Id. A

defendant’s conclusory allegation that he would not have pled guilty and would have demanded

trial is insufficient to establish prejudice for purposes of an ineffectiveness claim. Id.

¶ 14 When presented with a motion to dismiss, the trial court “may render its decision

on the basis of what is contained in the pleading to which the motion is directed, considered with

the transcript of the trial or other proceedings.” People v. Morris, 43 Ill. 2d 124, 128 (1969). In

fact, our supreme court has consistently upheld the dismissal of a postconviction petition when the

allegations are contradicted by the record from the original trial proceedings. See, e.g., People v.

Gaines, 105 Ill. 2d 79, 91-92 (1984); People v. Arbuckle, 42 Ill. 2d 177, 182 (1969). The function

of the postconviction pleading “ ‘is to determine whether the petitioner is entitled to a hearing.’ ”

People v. Coleman, 183 Ill. 2d 366, 382 (1998) (quoting People v. Airmers, 34 Ill. 2d 222, 226

(1966)). “Therefore, the dismissal of a post-conviction petition is warranted only when the

petition’s allegations of fact—liberally construed in favor of the petitioner and in light of the

original trial record—fail to make a substantial showing of imprisonment in violation of the state

or federal constitution.” Coleman, 183 Ill. 2d at 382.

¶ 15 Here, defendant claims his constitutional rights were violated in two ways: (1) he

did not receive the effective assistance of counsel and (2) he did not receive due process of law

when an interpreter was not made available to him at his plea hearing.

-5- ¶ 16 As we mentioned in defendant’s prior appeal, the two-prong Strickland test must

be satisfied for defendant to prove his counsel was ineffective. Contrary to the burden on defendant

at the first stage of postconviction proceedings, at the second stage, defendant needs to

“demonstrate” or “prove” ineffective assistance by showing that counsel’s performance was

deficient and that the deficient performance prejudiced him in order to survive dismissal. People

v. Tate, 2012 IL 112214, ¶ 19. That is, at the first stage of the proceedings, defendant’s pleading

is judged by a lower standard than at the second stage and as such, he must demonstrate only an

arguable basis for each prong. Id.

¶ 17 On this record, we find unconvincing defendant’s assertion that he met his

second-stage burden of making a substantial showing that counsel rendered ineffective assistance.

While defendant must establish both prongs of the two-part test discussed above, a reviewing court

need not address counsel’s alleged deficiencies if the defendant fails to establish any prejudice.

See Strickland, 466 U.S. at 687; People v. Edwards, 195 Ill. 2d 142, 163 (2001).

¶ 18 When viewing the allegations in defendant’s amended postconviction petition and

his claims in his supporting affidavit, in comparison to the transcript of the plea hearing, we must

agree with the trial court that it was clear defendant understood what was said at the hearing and

that he knowingly, intelligently, and voluntarily entered into the plea agreement. Defendant’s

amended petition and his affidavit allege he failed to fully understand the nature and consequences

of his plea agreement, specifically regarding being sentenced as a Class X offender with a

three-year MSR term. Yet, the transcript makes it abundantly clear, per defendant’s own words at

the hearing, that he understood the trial court’s admonishments. Defendant did not simply answer

each inquiry with a rote affirmative response. He answered the court’s questions with appropriate,

timely, and logical responses. He never asked for clarification or indicated he was unable to hear

-6- or understand any part of what the court was saying. Most importantly, defendant provided no

explanation at this second stage, neither in his amended petition nor his affidavit, that would serve

to discredit his statements made at the plea hearing or resolve the blatant inconsistency between

the allegations in his petition and the report of proceedings.

¶ 19 According to the transcript of the plea hearing, the trial court was careful to often

inquire whether defendant could hear and understand what the court was saying. On every

occasion, defendant indicated he understood. Defendant answered the court when prompted to do

so and provided appropriate and sensible responses. At one point, when the court spoke of

receiving credit for time previously served, the prosecutor asked a deputy sheriff if he knew the

date defendant “was picked up.” It was defendant himself who responded “July 2nd.” Notably, the

court had just immediately prior informed defendant he was subject to a three-year term of MSR.

It was apparent defendant was actively engaged in the hearing. In fact, just after explaining again

that defendant was to be sentenced as a Class X offender, subject to a prison term between 6 and

30 years, which would have “to be followed by a 3[-]year term of [MSR],” the court asked

defendant if he could “still hear [him].” Defendant responded: “I can understand you.” Thereafter,

defendant assured the court he was entering into the plea agreement on his own volition without

force or promises. On those representations, the court accepted defendant’s guilty plea.

¶ 20 Defendant’s due process claim also fails. Again, it is apparent from the record that

defendant understood the terms of the plea agreement and thereafter, knowingly and intelligently

entered his guilty plea. It is apparent he was not prejudiced by the absence of an interpreter. Again,

defendant’s amended postconviction petition and his supporting affidavit fail to resolve the

discrepancy between his allegations that he could not hear and understand the trial court’s

admonitions and the verbatim transcript in the record, which clearly indicates he did hear and

-7- understand the admonitions. On this basis, defendant has failed to demonstrate a substantial

showing of a constitutional violation as it relates either to counsel’s performance or his due-process

rights. Our supreme court has consistently held that if well-pleaded facts in the petition are

positively rebutted or affirmatively refuted by the record, the petition is subject to dismissal. See,

e.g., People v. Domagala, 2013 IL 113688, ¶ 35. Here, defendant’s allegations are positively

rebutted and affirmatively refuted by the record.

¶ 21 Alternatively, defendant argues his due process claim should not have been

dismissed because the State’s motion did not seek dismissal of that particular claim and the trial

court cannot dismiss a claim sua sponte at the second stage of the proceedings. In its brief, the

State concedes its motion to dismiss did not “include a specifically labeled section addressing

defendant’s due process claim.” However, the State asserts, because it argued throughout its

motion that the transcript clearly indicated defendant was indeed able to hear and understand the

trial court’s admonitions, it had sufficiently addressed defendant’s due process claim as well. We

note the trial court in its decision to dismiss defendant’s petition stated generally that it did “not

believe that the defendant has made a substantial showing of a violation of his constitutional rights

at this time.”

¶ 22 Looking to the substance of defendant’s due process claim, we find, in his amended

petition, he stated only that his “rights to due process of law and equal protection under the law

were violated when the [c]ourt proceeded to accept the [d]efendant’s plea of guilty and sentence

him after the court had previously appointed an interpreter for other proceedings and despite

counsel informing the [c]ourt that an interpreter was necessary.” In his brief, defendant clarified

that his claim centered around the voluntariness of his plea. He argued that without an interpreter,

-8- he was not “present” during the plea hearing and thus was incapable of knowingly and voluntarily

entering a plea.

¶ 23 Based on this explanation, the analysis of defendant’s due process claim mirrors

that of defendant’s claim of ineffective assistance of counsel. That is, a review of the transcript of

the guilty plea hearing indicates on its face defendant was in fact (1) “present,” (2) able to hear

and understand the trial court’s admonitions, and (3) entered his plea voluntarily and intelligently.

The trial court was not obligated to have an interpreter at all stages of the proceeding if the court

was otherwise satisfied that reasonable measures had been taken to ensure defendant was aware of

and understood the admonishments. See People v. Kelley, 237 Ill. App. 3d 829, 831 (1992) (citing

People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 287 (1970)) (stating when confronted with a hearing-

impaired individual, the trial court has the discretion to do what is necessary to afford the defendant

a full and fair exercise of his legal rights). As such, defendant’s due process claim also involved

an inquiry into whether defendant suffered prejudice, similar to the analysis of whether counsel

was ineffective. Therefore, we agree with the State that its motion to dismiss adequately addressed

the issue of prejudice, regardless of whether it related to counsel’s performance or whether

defendant was afforded the process he was due. The State’s request to dismiss, the argument in

support, and the reasons therefore were the same. We find no procedural error.

¶ 24 Because we find defendant’s amended petition and his supporting affidavit do not

make a substantial showing of a constitutional violation, we conclude the trial court did not err in

dismissing defendant’s petition at the second stage of the proceedings. Accordingly, we need not

address defendant’s remaining contentions of error.

¶ 25 III. CONCLUSION

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

-9- ¶ 27 Affirmed.

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