People v. Wiley

2024 IL App (5th) 220718-U

• Court: Appellate Court of Illinois
• Decided: February 27, 2024
• Docket: 5-22-0718
• Status: Unpublished

Opinion

2024 IL App (5th) 220718-U NOTICE NOTICE Decision filed 02/27/24. The This order was filed under text of this decision may be NO. 5-22-0718 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 18-CF-1693 ) JAMES E. WILEY, ) Honorable ) Roger B. Webber, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.

ORDER

¶1 Held: We grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s order dismissing three postconviction claims at the second stage of proceedings and judgment denying the remaining postconviction claim after an evidentiary hearing, where no error stems from either the order or the judgment and no argument claiming error has merit.

¶2 Defendant, James E. Wiley, appeals the trial court’s August 25, 2022, order dismissing

three of his postconviction claims at the second stage and its November 3, 2022, judgment denying

his remaining postconviction claim following an evidentiary hearing. Defendant’s attorney on

appeal, the Office of the State Appellate Defender (OSAD), concluded this appeal lacks merit and

filed a motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551

(1987). The motion was accompanied by a memorandum of law in support thereof. OSAD

provided proper notice to defendant. Defendant requested, and this court provided, additional time

1 to file a brief, memorandum, or other document explaining why OSAD should not be allowed to

withdraw as counsel, or why this appeal has merit. However, no response was filed by defendant

and the extended deadline for submission expired. Having reviewed OSAD’s Finley motion, the

accompanying memorandum of law, as well as the entire record on appeal, we conclude this appeal

lacks merit. Accordingly, we grant OSAD leave to withdraw as counsel and affirm the circuit

court’s order dismissing three allegations in defendant’s amended postconviction petition and

judgment denying one allegation following an evidentiary hearing.

¶3 BACKGROUND

¶4 On December 10, 2018, defendant was charged, by information, with four counts of home

invasion. See 720 ILCS 5/19-6(a)(3), (a)(4) (West 2018). The charges claimed defendant entered

Clarissa Head’s dwelling and, while armed with a firearm: (1) threatened the imminent use of force

upon Willie Barry; (2) struck Clarissa Head in the face; (3) pointed the firearm at Clarissa Head

and Melvin Armstrong; and (4) personally discharged the firearm during the commission of the

offense. The four home invasion counts were Class X felonies. See id. § 19-6(c). In addition to the

potential Class X prison sentence of 6 to 30 years (730 ILCS 5/5-4.5-25(a) (West 2018)), one count

carried a mandatory sentence enhancement of 15 years, and the other three counts carried a

mandatory sentence enhancement of 20 years. 720 ILCS 5/19-6(c) (West 2018).

¶5 On January 14, 2019, the State filed an additional charge, by information, against defendant

alleging unlawful possession of weapons by a felon (id. § 24-1.1). Said offense was a Class 3

felony punishable by imprisonment for a term of 2 to 10 years, depending on whether extended

term sentencing applied. Id. § 24-1.1(e); 730 ILCS 5/5-4.5-40(a) (West 2018).

¶6 The public defender’s office was originally appointed to represent defendant. However,

private counsel was later retained, and a jury trial was scheduled for August 26, 2019.

2 ¶7 On August 26, 2019, defendant’s attorney filed a motion to continue the trial. He stated,

inter alia, that he “[had] not slept for three days” and that, during the previous week, the State had

tendered evidence that “disrupted” his trial strategy and “forc[ed] a complete reworking of the

case.” The State objected. The circuit court heard arguments then announced that it would rule on

the motion the next day.

¶8 Later that same day, the parties informed the court that the State made a new plea offer,

one involving a new charge of being an armed habitual criminal, and that defendant was

considering the offer. The court informed defendant about his trial rights as well as the four home

invasion charges and their possible penalties.

¶9 On August 27, 2019, the parties appeared before the circuit court and announced they

reached a negotiated plea agreement. The State filed a new count charging defendant with the

offense of being an armed habitual criminal (see 720 ILCS 5/24-1.7(a) (West 2018)), which was a

Class X felony. See id. § 24-1.7(b). The new charge accused defendant of possessing a .22 rifle on

December 7, 2018, after being convicted of attempted murder, a Class X felony, in Cook County

case No. 05-CR-1584, and aggravated battery, a Class 3 felony, in Cook County case No. 03-CR-

100101. The court admonished defendant on the nature of the new charge, and also informed him

that the offense was punishable by 6 to 30 years of imprisonment, to be followed by 3 years of

mandatory supervised release (MSR). Defendant indicated his understanding of the new charge

and the possible penalties. The described terms of the plea agreement indicated defendant would

plead guilty to the new offense and would be sentenced to 15 years in prison, to be followed by 3

years of MSR, with credit for 264 days previously served in jail, while the five other counts against

defendant would be dismissed. Defendant agreed that the plea agreement was as described.

3 ¶ 10 The court admonished defendant that if he entered a plea of guilty, he would be “giving up

several very important rights.” These rights included the right to a public trial, whether by a jury

or by the judge alone, the right to compel the appearance of witnesses on his behalf, the right to

present evidence, the right to confront and cross-examine the prosecution’s witnesses, the right to

testify or not to testify, as he alone chose, the right to the assistance of counsel throughout, and the

right to insist that the prosecution prove guilt beyond a reasonable doubt. Defendant indicated his

understanding of all these rights, advised that he did not have any questions about them, and further

acknowledged that by pleading guilty, he would be surrendering all of those rights, except the right

to counsel. Defendant affirmed his signature on a jury-waiver form and stated he had no questions.

¶ 11 When the court asked him how he wished to plead to the charge of armed habitual criminal,

defendant answered, “Guilty.” When the court asked him whether he was pleading guilty on his

“own free will,” he responded, “Yes, sir.” The court asked whether anyone forced, threatened, or

coerced him “in any way” in order to “get [him] to plead guilty,” and defendant replied, “No, sir.”

¶ 12 The State presented a factual basis for the plea stating that on December 7, 2018, police

were called to investigate “reports of shots fired.” During the investigation, the police determined

defendant was a suspect and surrounded his residence. “After several hours of negotiation,”

defendant surrendered. Police found a 9-millimeter handgun in defendant’s basement and a .22

rifle in a detached garage. The State also averred that it would present certified copies of

defendant’s prior convictions for attempted murder and aggravated battery. Defense counsel, and

defendant himself, both concurred that the State’s evidence would be substantially as described.

The court asked the prosecution about defendant’s prior convictions, other than those mentioned

in the charging instrument. The State responded that defendant was convicted of conspiracy to

4 commit unlawful use of a weapon by a felon in a 2015 case, and unlawful possession of a

controlled substance in a 1998 case. The parties waived the right to a presentence report.

¶ 13 The court accepted the plea, found a factual basis, found the plea was knowingly,

intelligently, and voluntarily provided, and entered judgment on the plea. The court sentenced

defendant to 15 years in prison, to be followed by 3 years on MSR, for the offense of armed

habitual criminal, with credit for 264 days previously served. The court dismissed the other five

counts against defendant. The court admonished defendant about his appeal rights, including the

need to file a motion to withdraw his plea, and defendant indicated his understanding. The court

signed a sentencing order, reflecting the sentence imposed and the credit granted. Defendant never

moved to withdraw his guilty plea and no appeal was taken from the judgment of conviction.

¶ 14 On March 26, 2021, defendant filed a pro se petition for postconviction relief. He claimed

that (1) one of his prior convictions, which served as a predicate offense for armed habitual

criminal, was based on a statute that violated the federal constitution, as held by our supreme court,

and (2) private counsel provided constitutionally ineffective assistance (i) by inaccurately

informing him that Melvin Armstrong and Clarissa Head, two of the victims of the original home

invasion counts, were set to testify against defendant, whereas, in reality, Armstrong told police

that he could not see the perpetrator’s face, and Head later recanted her statement to police

identifying defendant as the perpetrator, and (ii) by “urg[ing]” him to accept a guilty plea to an

offense based on a statute “that is unconstitutional in its entirety.” He requested the appointment

of postconviction counsel and an order vacating the judgment of conviction.

¶ 15 Attached to the pro se postconviction petition was, inter alia, an affidavit from Clarissa

Head, dated May 2, 2019. The affidavit was hand-written, and stated the following:

5 “1. I’m sorry I thought that was him, but it was the wrong person. 2. I do not want

to go to court. I just want everything to be over with. I thought he broke into my

house, but he didn’t. 3. I am sorry for everything. I just want everything to be over.”

¶ 16 On June 4, 2021, the circuit court ordered the petition docketed for further consideration

and appointed postconviction counsel. On March 7, 2022, postconviction counsel filed an amended

postconviction petition presenting four claims of constitutionally ineffective assistance by plea

counsel. The petition claimed plea counsel was ineffective (1) by failing to inform defendant that

two crucial State’s witnesses, Melvin Armstrong and Clarissa Head, were unreliable and

incredible, and by failing to show him “any discovery,” both of which “left [defendant] at a

disadvantage” when considering whether to accept the State’s plea offer or to proceed to trial;

(2) by “abandon[ing] his trial strategy,” which caused defendant to accept the proposed plea

agreement; (3) by failing to file a pretrial motion to suppress evidence of a rifle that the police

found during a search, where defendant was asleep at the time the police arrived at his house,

defendant’s latent fingerprints were not found on the rifle, there were three other individuals at the

house when police arrived, and the police found the rifle in a detached garage, i.e., in a structure

apart from the house where defendant was found; and (4) by completely failing to subject the

prosecution’s case to meaningful adversarial testing. Attached to the amended postconviction

petition was the hand-written May 2, 2019, affidavit of Clarissa Head, that was previously attached

to defendant’s pro se petition.

¶ 17 Postconviction counsel also filed a certificate pursuant to Illinois Supreme Court Rule

651(c) (eff. July 1, 2017). Counsel attested that she had performed her required duties, i.e., that

she (1) “consulted with the [defendant] by phone, mail, electronic means or in person to ascertain

his contentions of deprivation of constitutional rights”; (2) “examined the record of the

6 proceedings at the trial”; and (3) “made any amendments to the petition filed pro se that [we]re

necessary for an adequate presentation of the [defendant’s] contentions.”

¶ 18 The State filed a motion to dismiss the amended postconviction petition. The motion

alleged that defendant failed to make a substantial showing of plea counsel’s ineffectiveness for

any of the claims.

¶ 19 On August 25, 2022, the parties presented for a hearing on the State’s motion to dismiss.

During argument, postconviction counsel conceded that she had not provided any basis for

suppressing the rifle that police had found in defendant’s detached garage. Following presentation

of argument, the court denied the State’s motion to dismiss the first ineffective-assistance claim

and advanced that claim to a third-stage evidentiary hearing. The court granted the State’s motion

to dismiss the remaining three ineffective-assistance claims. The basis for the court’s dismissal of

those counts was as follows: (1) the claim concerning an alleged abandoned trial strategy lacked

“specific facts to state a claim,” defendant failed to “identify what the original strategy was,” or

“how [it] was abandoned”; (2) the claim regarding suppression of the rifle included “no facts which

would support a reasonable probability that a motion to suppress might be granted”; and (3) the

claim that plea counsel failed to subject the prosecution’s case to meaningful adversarial testing

failed to show that defendant was deprived of “fair representation.”

¶ 20 On November 3, 2022, the court held a third-stage evidentiary hearing on the first claim in

defendant’s amended postconviction petition. Defendant and his plea counsel were the only

witnesses.

¶ 21 Defendant testified that in January 2019, he hired attorney Alfred Ivy to represent him in

this criminal case. During the entire course of Ivy’s representation, Ivy met with defendant on only

two occasions; they spoke over the phone “[a]bout three” times, and defendant “saw him a couple

7 of times in court.” Ivy sometimes failed to appear for court dates. In January 2019, shortly after

hiring Ivy, Ivy reviewed the discovery with defendant. It was the only time the two discussed the

discovery. Ivy showed him the police reports, but defendant had to review them by himself because

Ivy soon fell asleep. Defendant never saw any video evidence. Ivy never told defendant that he

had spoken with any witnesses. Defendant was of the opinion that Ivy had not prepared for trial,

and Ivy never did anything to prepare defendant for trial. Defendant told Ivy that he wanted a trial.

Between June 4, 2019, and August 26, 2019—the date the trial was scheduled to begin—defendant

met with Ivy once, in the courtroom. On that occasion, Ivy discussed, for the first time, Clarissa

Head. Ivy told defendant that “things changed,” and that Clarissa Head and Melvin Armstrong

“was gonna *** come to court and testify,” and that as a result, defendant should consider

accepting the State’s plea offer. To the best of defendant’s knowledge, Ivy had not investigated

Head or Armstrong, and Ivy had not kept defendant informed about what was happening in his

case. If he had a better understanding, he would not have accepted the 15-year plea offer but instead

would have chosen to go to trial. On cross-examination, defendant acknowledged knowing about

Clarissa Head’s affidavit—wherein she wrote that she had been wrong about who broke into her

house—prior to entering his plea of guilty.

¶ 22 Alfred Ivy, defendant’s plea counsel, testified that he recalled representing defendant in

this case, which began with multiple counts of home invasion, each of which carried mandatory

sentence enhancements that were quite lengthy. Ivy met with defendant “two or three times” at the

jail and spoke with him over the telephone “[p]robably about” five times. He recalled showing

defendant discovery in the case, though he did not recall any videos. It was “possible” that Ivy fell

asleep as defendant examined the discovery, for there was “a lot” of discovery in this case, and

Ivy always allowed his clients to review the discovery independently before he started sharing his

8 own observations. After defendant reviewed the discovery, he and Ivy discussed possible defenses.

Defendant recommended calling family members as witnesses at trial, which Ivy ultimately

decided to do. Along with possible defenses, the two also discussed, “from the very beginning,”

the possibility of a plea agreement. Ivy’s conversations with the State revealed the State was

unwilling to remove the sentence enhancements, which made a plea agreement unlikely in Ivy’s

view and therefore Ivy continued to prepare the case for trial.

¶ 23 Ivy was aware that Clarissa Head was “one of the named alleged victims” in the case, and

he discussed the strengths and weaknesses of her anticipated trial testimony, from the defense

perspective. For example, Head knew defendant as a neighbor, and she was expected to identify

him as the perpetrator of the home invasion, which was bad for defendant’s case, but Head also

had a son who was involved in an argument with defendant over an alleged theft, which would be

good for defendant’s case. He also was aware of Melvin Armstrong, who was Head’s “significant

other at the time.” Armstrong would have been “a good witness” for the defense, since he knew

defendant as a neighbor but could not identify him as the perpetrator of the home invasion. Ivy

thought Armstrong’s testimony would have counterbalanced Head’s testimony, at least to some

degree. However, Armstrong died before defendant’s trial, leaving defendant’s case without the

counterbalance.

¶ 24 As the trial approached, Ivy became aware that Clarissa Head wrote a statement that

contradicted her prior statements about the home invasion; the new statement said she wrongly

identified defendant as the perpetrator. Ivy also received a copy of a police report, wherein the

police discussed an interview they conducted with Head sometime after she wrote the new

statement. During that interview, according to Ivy, Head “essentially said that someone in

[defendant’s] family paid her to write a different statement.” Ivy discussed these latest

9 developments involving Head’s anticipated testimony with defendant, although Ivy could not

recall exactly when. As a whole, Ivy told defendant these developments were not helpful to the

defense. Specifically, Ivy thought the jury might blame defendant for the deceitful action of one

of his family members.

¶ 25 As the time for trial arrived, Ivy saw that the State was changing its position on sentence

enhancements “[p]retty significantly.” The State agreed to file a charge of armed habitual criminal,

which “took off the automatic 20 years *** on the [C]lass X.” Defendant and his wife discussed

the matter and thought a sentencing range of 10 to 12 years would be acceptable. Ivy proposed to

the State a sentence of imprisonment for 10 to 12 years. The State rejected the offer, but

counteroffered with a sentence of 15 years. Ivy did not explicitly recommend the State’s offer.

However, he “definitely recommended that [defendant] give it some serious thought.” Ultimately,

defendant agreed to accept the State’s offer.

¶ 26 At the end of the evidentiary hearing, the circuit court found that defendant failed to

establish ineffective assistance of plea counsel. The court found that every alleged failure by plea

counsel was either unproven or a strategic decision by counsel. The court continued, stating that

defendant “went from facing a minimum of 21 years and [a] maximum of 50 years if he were

convicted on the first four counts to accepting a deal for 15 years.” The court did not believe that

rejecting that deal would have been “rational.” The court denied defendant’s postconviction

petition and defendant timely appealed.

¶ 27 ANALYSIS

¶ 28 As previously noted, defendant’s appointed appellate attorney, OSAD, moved for leave to

withdraw as counsel and filed a supporting memorandum of law. The memorandum presented

three potential issues on appeal. We examine each in the context of our standard of review.

10 ¶ 29 A second-stage dismissal under the Post-Conviction Hearing Act (Act) is reviewed

de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). When a petition is advanced to a third-

stage evidentiary hearing, involving fact-finding and credibility determinations, the circuit court’s

decision will be reversed only if it is manifestly erroneous. Id. “[A] decision is manifestly

erroneous when the opposite conclusion is clearly evident.” People v. Coleman, 2013 IL 113307,

¶ 98.

¶ 30 OSAD’s first potential issue is whether the circuit court erred when it dismissed three

ineffective-assistance-of-counsel claims at the second stage of the postconviction proceeding. The

three dismissed claims alleged ineffective assistance of counsel for (1) abandoning his trial

strategy; (2) failing to file a pretrial motion to suppress the rifle that police had found in

defendant’s detached garage; and (3) failing to subject the prosecution’s case to meaningful

adversarial testing. The circuit court rejected the first of these claims because it failed to present

“enough specific facts to state a claim.” The court rejected the second claim because defendant

failed to articulate any basis for suppressing the rifle. The court rejected the third claim because

defendant had not alleged a complete failure by plea counsel to serve as the prosecution’s

adversary.

¶ 31 Claims of ineffective assistance of counsel are reviewed under the well-established

“standard set forth in Strickland v. Washington, 466 U.S. 668 (1984),” which Illinois “adopted in

People v. Albanese, 104 Ill. 2d 504 (1984).” People v. Johnson, 2021 IL 126291, ¶ 52. To prevail

on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s

performance was deficient and (2) the deficient performance prejudiced defendant. Strickland, 466

U.S. at 687. “More specifically, a defendant must show that counsel’s performance was objectively

unreasonable under prevailing professional norms and that there is a ‘reasonable probability that,

11 but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”

People v. Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 694). “A defendant’s

failure to establish either prong *** precludes a finding of ineffective assistance of counsel.”

People v. Henderson, 2013 IL 114040, ¶ 11.

¶ 32 Strickland noted there were some circumstances so likely to prejudice the accused that

prejudice need not be shown but instead would be presumed. Strickland, 466 U.S. at 692. Those

circumstances include when (1) a defendant “is denied counsel at a critical stage,” (2) counsel

“entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or (3) counsel

is called upon to represent a client in circumstances under which no lawyer could provide effective

assistance. United States v. Cronic, 466 U.S. 648, 659-60 (1984). The second Cronic exception is

a “narrow exception” that only “infrequently” applies. Florida v. Nixon, 543 U.S. 175, 190 (2004).

¶ 33 Addressing the three dismissed claims, OSAD contends that no meritorious argument

exists to support a claim that the circuit court’s order was erroneous. OSAD states that the

abandoned trial strategy claim lacked “the requisite specificity needed to demonstrate that

counsel’s performance was objectively unreasonable or that he was prejudiced.” OSAD further

concedes the claim regarding the lack of a motion to suppress the rifle “failed to identify a

meritorious ground for suppression.” Finally, OSAD also admits the claim about not subjecting

the prosecution’s case to meaningful adversarial testing failed to allege “a complete failure on the

part of his attorney as was the case in Cronic” and the record reveals counsel eventually negotiated

a lesser charge, dismissal of the five pending charges, a sentence of 15 years, and no mandatory

sentence enhancement. Given the information missing in defendant’s postconviction petition, as

well as trial counsel’s actions throughout the proceedings, we agree that no error can be found in

the circuit court’s dismissal of those three postconviction claims.

12 ¶ 34 The second potential issue raised by OSAD was whether the circuit court committed

manifest error when it denied defendant’s remaining claim of ineffective assistance of counsel

following the evidentiary hearing. That claim alleged plea counsel was ineffective for failing to

keep defendant informed and knowledgeable about his case prior to his guilty plea, leaving him at

a disadvantage when deciding between accepting the State’s plea offer and insisting on a trial.

¶ 35 A defendant has a right to the effective assistance of counsel “during plea negotiations.”

Missouri v. Frye, 566 U.S. 134, 144 (2012). The Strickland test applies, but in order to show

prejudice the defendant must show a “reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985). A “conclusory allegation” that defendant would not have pled guilty will not

suffice. People v. Valdez, 2016 IL 119860, ¶ 29. Rather, defendant “ ‘must convince the court that

a decision to reject the plea bargain would have been rational under the circumstances.’ ” Id.

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

¶ 36 Both defendant and plea counsel, Alfred Ivy, testified at the evidentiary hearing. The circuit

court, as the trier of fact, was free to credit Ivy’s testimony about his diligence in preparing for

trial, his thought processes regarding witness credibility, sentence enhancements, and his handling

of plea negotiations. See People v. Domagala, 2013 IL 113688, ¶ 34. Furthermore, the court found

that none of the information alleged would have changed the defendant’s decision to take the plea.

The court found it would not have been “rational” for the defendant to reject the State’s offer of

15 years and risk far lengthier sentences. Here, because prejudice is not shown, we hold there was

no manifest error in the circuit court’s denial of the claim following the evidentiary hearing.

¶ 37 OSAD’s third, and final, potential issue was whether postconviction counsel provided the

defendant with reasonable assistance. Under the Act, postconviction counsel is obligated to

13 provide a defendant with a reasonable level of assistance. People v. Hardin, 217 Ill. 2d 289, 299

(2005). In order to ensure this level of assistance is met, Illinois Supreme Court Rule 651(c) (eff.

July 1, 2017) “outlines the specific duties of appointed counsel in post-conviction proceedings.”

People v. Turner, 187 Ill. 2d 406, 410 (1999). Rule 651(c) allows counsel to file a certificate stating

they (1) “consulted with petitioner *** to ascertain his or her contentions of deprivation of

constitutional rights,” (2) “examined the record of the proceedings at the trial,” and (3) made any

amendments to the pro se petition “necessary for an adequate presentation of petitioner’s

contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The filing of a certificate creates a rebuttable

presumption that reasonable assistance was provided. People v. Smith, 2022 IL 126940, ¶ 29.

¶ 38 Here, defendant’s postconviction counsel filed a Rule 651(c) certificate. Counsel’s

certificate complied with Rule 651(c), creating a rebuttable presumption that counsel provided

reasonable assistance. We find nothing in the record that rebuts the presumption. As such, this

potential issue has no merit.

¶ 39 CONCLUSION

¶ 40 None of the potential issues raised by OSAD are meritorious. Accordingly, we grant OSAD

leave to withdraw as counsel and affirm the circuit court’s order dismissing three claims in

defendant’s postconviction petition and the judgment denying the amended postconviction petition

after holding an evidentiary hearing.

¶ 41 Motion granted; judgment affirmed.