People v. Williams

2023 IL App (3d) 190317-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 190317-U

Order filed April 12, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0317 v. ) Circuit No. 13-CF-896 ) CORTEZ D. WILLIAMS, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Albrecht and Davenport concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The court did not err in summarily dismissing the defendant’s postconviction petition at the first stage of proceedings.

¶2 The defendant, Cortez D. Williams, appeals from the first-stage dismissal of his

postconviction petition. He argues that his petition was erroneously dismissed where he pleaded

the gist of claims that his right to counsel of choice was violated and his trial counsel provided

ineffective assistance. ¶3 I. BACKGROUND

¶4 The State charged the defendant with first degree murder for the shooting death of Melvin

Sanders (720 ILCS 5/9-1(a)(1), (2) (West 2012)). The court appointed counsel to represent the

defendant. A jury trial was set for February 3, 2014. On January 24, 2014, defense counsel moved

to continue, indicating that they had made good progress in preparation but were not yet ready to

proceed to trial. The motion to continue was allowed and the trial was continued to March 10,

2014.

¶5 Leading up to March 10, the defendant had indicated in all of the pretrial conferences that

he was ready to proceed to trial as scheduled. However, on March 10, 2014, approximately 30

minutes prior to the start of trial, the defendant moved to continue to retain private counsel.

Defense counsel represented that the defendant had spoken with his family the day before and

learned that they had just gathered the necessary funds to retain private counsel and the defendant

had learned this information after the pretrial conferences in which they indicated they were ready

to proceed. The court inquired about whether an attorney had been hired to represent the defendant

at this point. The defendant stated that his family had secured the funds but had not yet hired an

attorney.

¶6 The State announced that it was ready to proceed to trial. The court expressed its frustration

and need for clarity, stating:

“I asked, not an hour ago: How many witnesses will there be? How long will this

take? Are there police officers involved? Are there people’s schedules involved?

And the answer was: It will take at least a full day of testimony.

Everybody’s ready. ***

2 And now within the last five minutes, the Court is informed that the

defendant isn’t ready. *** If you had come in here and had your attorney that you

had paid and made your arrangements or whatever the arrangements were, and he

or she came in here and entered their appearance, it would be a different story.

But all we are now is like some sort of random telephone call that: Whoop,

stop. Stop the train. We might have some money and we might have a lawyer, but

we don’t know who it is or whether they would take the case or whether I would

like them or whether he or she would like you and get to the case. And then we’re

back in the ditch again starting from the very beginning. That seems disingenuous

to me.

So are you able—is your client able to tell me that, yes, they have an

appointment to see a lawyer, who the lawyer is? Are they going to be here this

morning or is this just take my word for it, Judge?”

The court indicated that the situation was “[w]ay too blurry” and it needed to know more specifics

before it could rule on the motion. The court recessed proceedings for defense counsel to obtain

more information.

¶7 When the case was recalled, defense counsel indicated that he spoke with the defendant’s

mother. She informed counsel that they had not secured the funds to hire private counsel but were

still in the process. The defendant’s mother believed that she could retain counsel for the defendant

within two weeks. She indicated that she believed the amount of money she was attempting to

secure would be enough to retain private counsel, but she did not indicate that she had spoken with

any attorney regarding the defendant’s case. Based on this representation, the court expressed an

opinion that the request was not realistic and denied the motion to continue.

3 ¶8 The case proceeded to trial. Antonio Hardy testified that on September 21, 2013, at

approximately 11 p.m., he was sitting in his white truck playing music for a family gathering when

he saw a man shooting while standing over Sanders. Hardy witnessed two gunshots being fired.

The shooter fled the scene on foot. Hardy followed the shooter, eventually running him over with

his truck. Thereafter, Hardy observed the shooter limp into a grey Monte Carlo. Hardy followed

the Monte Carlo. During the pursuit, the Monte Carlo slowed, and an individual exited from the

passenger side. That individual then entered a small vehicle. Hardy did not recall the color of the

vehicle but thought it might have been red. The Monte Carlo continued on, and Hardy followed it

for several miles before the police intervened.

¶9 During cross-examination, Hardy testified that Sanders was a member of his family. Hardy

had not been drinking alcohol that night but had taken his prescribed Vicodin. He indicated that it

was dark outside at the time of the incident. Hardy also indicated that he only witnessed two

gunshots being fired, and he had not heard or seen any gunshots prior to those.

¶ 10 The defendant testified on his own behalf. He described an incident which occurred on

September 13, 2013, where he first encountered Sanders. On that date, the defendant spoke with a

group of women on Stanley Street for approximately 15 or 20 minutes before leaving. The

defendant returned to the area approximately 45 minutes to an hour later, armed with a firearm for

his protection. The defendant again approached and spoke to the women. The defendant claimed

one woman asked him “Who was talking shit,” and then the defendant heard a man say, “Who’s

talking shit?” The defendant did not know this man, but later learned he was Sanders. Sanders

asked one woman if they knew the defendant. When she responded that she did not, Sanders

punched the defendant in the jaw.

4 ¶ 11 According to the defendant’s testimony, after being punched, Sanders and another man

approached him. He believed he was going to be attacked, so the defendant pulled out his firearm

and held it at his side. When Sanders saw the defendant’s gun, he opened his jacket and said “Oh,

we got those too.” The defendant said that at the time he thought he saw the butt of a gun because

something black was sticking up on Sanders’s hip. The defendant explained that, after this

exchange, he walked back to his car and returned home. The defendant indicated that he felt scared

during this encounter as Sanders was larger than him.

¶ 12 The defendant testified that, on September 21, 2013, he drove his girlfriend’s Monte Carlo

into the same area near Stanley Street. The defendant testified that he was armed for self-defense.

He parked the Monte Carlo on a nearby street and exited the Monte Carlo to talk with a woman.

After she left, the defendant began walking back to the Monte Carlo down Stanley Street. The

defendant saw a group of people outside of a home on Stanley Street and hesitated before deciding

it was safe to walk by the house. While walking by this group, the defendant heard Sanders say,

“what’s up.” Sanders was bent at the shoulders holding a bottle and had his other hand in his jacket

pocket. The defendant then observed Sanders make a “pulling out motion” like his hand was

coming out of his jacket pocket. The defendant thought Sanders was reaching for a gun “because

[the defendant] pulled a gun out on him, so [the defendant] thought [Sanders] was going to pull a

gun out on [him].” Consequently, the defendant pulled his gun out and began shooting while

moving backwards. The defendant denied that he stood over Sanders while shooting. The

defendant fled to avoid the returning gunfire; a white truck struck him as he ran. The defendant

stood up, entered the Monte Carlo, and fled with the white truck in pursuit until the police stopped

him approximately 15 minutes later.

5 ¶ 13 Other evidence established that the defendant had driven a maroon-colored car on

September 13, 2013, and at least six gunshots were fired on the evening of the murder, September

21, 2013. During closing arguments, defense counsel argued that Hardy’s testimony was unreliable

where the incident occurred at night, he was unable to identify the shooter, and he only heard two

gunshots. Defense counsel highlighted other forensic evidence including the number of gunshots

and the bullet trajectories to attempt to impeach Hardy’s credibility. The State focused heavily on

the defendant’s testimony and his video recorded statement to the police to argue premeditation.

The State did not reference any other occupant of the Monte Carlo or their entering a red-colored

vehicle. Instead, the State focused on the fact that the defendant used another vehicle that the group

would not associate with him that night and parked it on a neighboring block before proceeding

on foot to Stanley Street.

¶ 14 The defendant was convicted of first degree murder and sentenced to 60 years’

imprisonment. On direct appeal, the defendant argued that the court erred in prohibiting the jury

from receiving evidence that the police discovered a concealed handgun on Sanders’s body and

the court erred when it refused to instruct the jury on self-defense. We affirmed the defendant’s

conviction. People v. Williams, 2016 IL App (3d) 140380-U, ¶ 52.

¶ 15 In January 2018, the defendant filed a postconviction petition alleging, inter alia: (1) the

court denied his constitutional right to counsel of his choosing when it denied his request for a

continuance to retain private counsel and (2) trial counsel was ineffective for failing to impeach

Hardy with an inconsistent statement made during his videotaped interview where he told police

that no one exited the passenger side of the Monte Carlo. Moreover, the defendant argued that

appellate counsel was ineffective for failing to raise these issues. The court entered an order

summarily dismissing the defendant’s petitions. The defendant appeals.

6 ¶ 16 II. ANALYSIS

¶ 17 The Post-Conviction Hearing Act creates a procedure for imprisoned criminal defendants

to collaterally attack their convictions or sentences based on a substantial denial of their

constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2018). “At the first stage, the court must accept

as true and liberally construe all of the allegations in the petition unless contradicted by the record.”

People v. Walker, 2019 IL App (3d) 170374, ¶ 13. A defendant need only state the gist of a

constitutional claim, which is a low threshold. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). “At

this stage, a defendant need not make legal arguments or cite to legal authority.” Id. “If the trial

court finds in the first stage of proceedings that the petition is frivolous or patently without merit,

it shall summarily dismiss the petition ***.” People v. Moore, 2018 IL App (3d) 160271, ¶ 15. A

petition is considered frivolous if it has no arguable basis in law or fact. People v. Hodges, 234 Ill.

2d 1, 11-13, 16 (2009). Any issues that could have been raised in the direct appeal, but were not,

are forfeited. People v. Blair, 215 Ill. 2d 427, 443 (2005). The circuit court’s first-stage dismissal

of a postconviction petition is reviewed de novo. Hodges, 234 Ill. 2d at 9.

¶ 18 A. Denial of the Right to Counsel of Choice

¶ 19 The defendant argues his petitions presented the gist of a claim that he was denied his

constitutional right to counsel of his choosing when the court denied his motion to continue to hire

private counsel. Further, the defendant argues that the issue is not subject to forfeiture as appellate

counsel provided ineffective assistance where they failed to raise the issue on direct appeal.

¶ 20 Criminal defendants are guaranteed the right to retain counsel of their choice by both the

United States and Illinois Constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. This

right, while fundamental, may be forfeited where it is used to “delay trial and thwart the effective

administration of justice.” People v. Tucker, 382 Ill. App. 3d 916, 920 (2008). A court’s

7 determination on whether to allow a continuance for substitution of counsel will not be overturned

absent an abuse of discretion. People v. Segoviano, 189 Ill. 2d 228, 245 (2000).

¶ 21 “Factors to be considered by a reviewing court in evaluating a trial court’s exercise of

discretion include (i) defendant’s diligence; (ii) defendant’s right to a speedy, fair, and impartial

trial; and (iii) interests of justice.” People v. Adams, 2016 IL App (1st) 141135, ¶ 15. “In balancing

the judicial interest of trying the case with due diligence and the defendant’s constitutional right

to counsel of choice, the court must inquire into the actual request to determine whether it is being

used merely as a delaying tactic.” People v. Burrell, 228 Ill. App. 3d 133, 142 (1992).

¶ 22 An abuse of discretion may be found when the circuit court fails to further inquire into the

defendant’s request for a continuance for new counsel. People v. Basler, 304 Ill. App. 3d 230, 232-

33 (1999). However, the court “will not be found to have abused its discretion *** in the absence

of ready and willing substitute counsel.” Segoviano, 189 Ill. 2d at 245. Accordingly, no abuse of

discretion will be found “where a trial court conducts an inquiry into the circumstances of a

defendant’s motion, and those circumstances demonstrate substitute counsel does not stand ‘ready,

willing, and able to make an unconditional entry of appearance’ on defendant’s behalf.” People v.

Curry, 2013 IL App (4th) 120724, ¶ 51 (quoting People v. Koss, 52 Ill. App. 3d 605, 607-08

(1977)).

¶ 23 The defendant argues that this case is analogous to People v. Adams, 2016 IL App (1st)

141135. In Adams, a bench trial was scheduled 70 days after the defendant was indicted. Id. ¶ 12.

On the day of trial, the defendant requested a continuance to secure private counsel, explaining

that he was asking because his attorney did not “let [him] know anything.” Id. ¶ 4. The circuit

court quickly denied the defendant’s motion, stating “[i]f this wasn’t the day of trial, then you

would have a right to do that. But this is the day of trial and everybody is here. So your request is

8 denied.” Id. The appellate court found that the circuit court abused its discretion in denying the

defendant’s continuance where it failed to make any inquiry into the defendant’s reasons for

wanting new counsel or any efforts he may have made toward obtaining counsel. Id. ¶ 17. The

appellate court further noted that the charge had only been pending for 70 days on the day of trial,

the defendant had requested no prior continuances, and the defendant had been in custody during

the pendency of the proceedings. Id.

¶ 24 Here, the defendant had moved to continue a prior trial date. The defendant expressed no

reason as to why he was seeking to obtain new counsel and the charge had been pending for nearly

six months at the time of trial. As with Adams, the court was clearly concerned with the timing of

the request and the inconvenience to the witnesses. However, the court was also concerned about

the lack of diligence on the defendant’s part. It found the request to be disingenuous where it came

after the parties had announced they were ready for trial, and minutes before jury selection was set

to begin due to an ambiguous telephone conversation. Nonetheless, the court determined it did not

have enough information and recessed the case to have trial counsel speak with the defendant’s

family to inquire if anyone had spoken with an attorney, who the attorney was, and whether they

would be available to appear.

¶ 25 Defense counsel was able to determine and inform the court of the circumstances

surrounding the defendant’s request for a continuance. The court’s inquiry, through defense

counsel’s investigation, clearly revealed that no attorney had been consulted or hired to represent

the defendant. Further, contrary to the defendant’s initial representation, his family had not secured

the funds to hire an attorney. On the date of trial, they were still attempting to secure the funds,

clearly illustrating that no attorney stood willing and ready to represent the defendant. The record

establishes that the court did not abuse its discretion in denying the defendant’s motion to continue

9 to obtain new counsel. Thus, it is not arguable that the defendant was denied his constitutional

right to counsel of his choosing and appellate counsel did not provide ineffective assistance where

it failed to raise a meritless issue. See People v. Johnson, 205 Ill. 2d 381, 406 (2002) (“Appellate

counsel need not brief every conceivable issue and may refrain from developing nonmeritorious

issues without violating Strickland [citation], because the defendant suffered no prejudice unless

the underlying issue is meritorious.”).

¶ 26 B. Ineffective Assistance of Counsel

¶ 27 The defendant argues that his petition contained the gist of a claim that trial counsel was

ineffective for failing to impeach a State’s witness with a prior inconsistent statement. At the first-

stage, a postconviction petition that alleges ineffective assistance of counsel may not be summarily

dismissed if it is arguable that: (1) counsel’s performance fell below an objective standard of

reasonableness; and (2) the defendant was prejudiced. Hodges, 234 Ill. 2d at 17. “[F]ailure to

satisfy either prong precludes a finding of ineffective assistance of counsel.” People v. Patterson,

192 Ill. 2d 93, 107 (2000).

¶ 28 “Counsel’s failure to impeach a witness is generally considered a matter of trial strategy

and will not support a claim of ineffective assistance of counsel.” People v. Zambrano, 2016 IL

App (3d) 140178, ¶ 24. However, counsel may be found to have provided ineffective assistance

where he “completely fails to use significant impeachment evidence to impeach a key witness.”

Id.

¶ 29 Taking the defendant’s affidavit as true, Hardy gave inconsistent testimony regarding

whether another individual exited the Monte Carlo that the defendant was driving and entered

another, potentially red, vehicle after the shooting occurred. The record reflects that trial counsel

cross-examined Hardy about his relationship with Sanders and any potential intoxication at the

10 time of the offense but asked no questions about his prior inconsistent statement regarding a

passenger in the Monte Carlo. Trial counsel may arguably be ineffective for failing to use this

impeachment evidence if it was significant. However, this impeachment evidence is not

significant.

¶ 30 Most of Hardy’s testimony was corroborated by the defendant’s own testimony. Hardy

testified that he witnessed a man shoot Sanders. The shooter fled on foot. Hardy, in his white truck,

followed the shooter and eventually struck him with his truck. The shooter then entered the driver’s

seat of a Monte Carlo and Hardy continued to follow that vehicle for miles. The defendant admitted

to shooting Sanders and leaving the scene on foot. The defendant testified that he was struck by a

white truck and drove away in a Monte Carlo, where he was followed by that white truck until the

police intervened. Thus, the evidence renders the prior inconsistent statement insignificant.

Accordingly, it is not arguable that trial counsel’s decision not to use insignificant evidence to

impeach Hardy fell below an objective standard of reasonableness, rendering the claim meritless.

Where the underlying claim has no merit, no prejudice will result. People v. Pitsonbarger, 205 Ill.

2d 444, 465 (2002).

¶ 31 III. CONCLUSION

¶ 32 The judgment of the circuit court of Peoria County is affirmed.

¶ 33 Affirmed.