People v. Pinkston , 989 N.E.2d 298 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Pinkston, 2013 IL App (4th) 111147
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANDREW PINKSTON, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-11-1147
Filed April 30, 2013
Held The denial of defendant’s motion for discovery in his postconviction
(Note: This syllabus proceedings based on the erroneous belief that discovery was not allowed
constitutes no part of in postconviction proceedings was remanded for the limited purpose of
the opinion of the court allowing the trial court to exercise its discretion on defendant’s request,
but has been prepared since a trial court has inherent authority to order discovery in
by the Reporter of postconviction proceedings following a hearing for “good cause shown.”
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of McLean County, No. 06-CF-931; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Cause remanded with directions.
Counsel on Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal and Rita M. Anderson and Dan W. Evers, both of State Appellate
Defender’s Office, of Mt. Vernon, for appellant.
Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Holder White concurred in the
judgment and opinion.
OPINION
¶1 Defendant was convicted of two counts of unlawful delivery of a controlled substance
and sentenced to concurrent 11-year prison terms. This court affirmed defendant’s
convictions and sentences. In February 2009, defendant filed a pro se postconviction petition.
In September 2010, defendant filed a motion for discovery. In May 2011, the trial court
denied defendant’s motion for discovery based on the belief discovery was not allowed in
postconviction proceedings. In December 2011, an evidentiary hearing was held on
defendant’s remaining postconviction claim of ineffective assistance of trial counsel.
Because defendant failed to present any evidence at the hearing, the trial court dismissed his
postconviction petition.
¶2 Defendant appeals, arguing the trial court abused its discretion when it denied his
discovery request because it failed to recognize it had the discretion to grant defendant’s
request for discovery. We remand for the limited purpose of allowing the trial court to
exercise its discretion on defendant’s discovery request and for such further proceedings as
may be warranted.
¶3 I. BACKGROUND
¶4 Following a December 2006 jury trial, defendant, Andrew Pinkston, was convicted of
two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West
2006)). In January 2007, defendant was sentenced to concurrent 11-year terms of
imprisonment. This court affirmed defendant’s convictions and sentences on direct appeal.
People v. Pinkston, No. 4-07-0399 (Aug. 14, 2008) (unpublished order under Supreme Court
Rule 23).
¶5 In February 2009, defendant filed a pro se postconviction petition, raising multiple
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claims, including that the State improperly withheld discovery information relating to
payments made to an informant, the State’s key witness, in his case. During a March 2010
hearing on the State’s motion to dismiss defendant’s postconviction petition, the court
dismissed all but one of defendant’s claims on the grounds they were either meritless,
forfeited, or barred by res judicata. The only issue allowed to proceed to a third-stage
evidentiary hearing concerned whether trial counsel was ineffective for failing to investigate
or call key witnesses who had exonerating information to support defendant’s claim of
innocence.
¶6 In September 2010, defendant filed a motion for discovery. The discovery motion
contained numerous requests, including a request for the Bloomington police department and
the Illinois State Police to disclose any reports made by the State’s witnesses, as well as any
promises, rewards, or threats made by the State to any witnesses. Additionally, the motion
requested the records of all other proceedings or trials the State’s witnesses had participated
in, any records of their drug or alcohol treatment, records of any funds paid to the witnesses,
exculpatory information, records of any substance testing done on the witnesses, and any
other material pertaining to defendant’s case.
¶7 During a May 2011 hearing, the trial court denied defendant’s motion for discovery,
informing defendant “There’s no discovery that is contemplated in a post-conviction
petition.” When defendant asked the court to repeat itself, the court responded, “Discovery
is not available in a post-conviction petition.” Defendant repeated the statement as a query
to the court, asking, “Discovery is not available in a post-conviction petition?” The court
responded, “Correct.” The court later reiterated, “As I’ve already said, there is no discovery
process that is contemplated or provided for in the Post-Conviction Act.” Defendant stated
he understood the court’s ruling, but “hate[d] to make a claim without having proof of the
facts.” The court again reiterated discovery is “not provided for by way of the statute.”
¶8 During a December 2011 evidentiary hearing on his postconviction issue, defendant
informed the trial court he was not ready to proceed and sought a continuance. The court
denied defendant’s request. Because defendant failed to examine either of his attorneys who
were present at the hearing or present any other evidence, the State sought a directed
judgment, which the court granted.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the trial court abused its discretion when it denied his
discovery request because it failed to recognize it had the discretion to grant defendant’s
request for discovery, an error he asserts requires this court to remand for further proceedings
so the court can properly exercise its discretion.
¶ 12 Initially, we note discovery orders are not appealable under Illinois Supreme Court Rule
301 (eff. Feb. 1, 1994) or Rule 304 (eff. Feb. 26, 2010) and are typically reviewed only on
appeal from a final judgment. Kraima v. Ausman, 365 Ill. App. 3d 530, 533, 850 N.E.2d 840,
844 (2006). Defendant was precluded from appealing the trial court’s denial of his discovery
request prior to the court’s dismissal of his postconviction petition.
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¶ 13 Our supreme court has held the circuit court has inherent authority to order discovery in
postconviction proceedings following a hearing for “good cause shown.” People ex rel.
Daley v. Fitzgerald, 123 Ill. 2d 175, 183, 526 N.E.2d 131, 135 (1988); People v. Fair, 193
Ill. 2d 256, 264-65, 738 N.E.2d 500, 504 (2000). Because of the possibility for abuse of the
discovery process in postconviction petitions, circuit courts must exercise discretion in
granting or denying discovery requests. Daley, 123 Ill. 2d at 183, 625 N.E.2d at 135; Fair,
193 Ill. 2d at 264, 738 N.E.2d at 504. Discovery should be allowed when “the defendant has
shown ‘good cause,’ considering the issues presented in the petition, the scope of the
requested discovery, the length of time between the conviction and the post-conviction
proceeding, the burden of discovery on the State and on any witnesses, and the availability
of the evidence through other sources.” People v. Johnson, 205 Ill. 2d 381, 408, 793 N.E.2d
591, 608 (2002) (citing Daley, 123 Ill. 2d at 183-84, 625 N.E.2d at 135). We will only
reverse a trial court’s denial of a postconviction discovery request if the trial court abused
its discretion. Fair, 193 Ill. 2d at 265, 738 N.E.2d at 504-05.
¶ 14 A trial court commits error when it refuses to exercise discretion based on the erroneous
belief it does not have discretion. People v. Queen, 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169
(1974); People v. Autman, 58 Ill. 2d 171, 176, 317 N.E.2d 570, 572 (1974). The State
concedes the trial court erred in denying defendant’s motion for discovery based on the
erroneous belief it did not have discretion. The State also asserts the court did not abuse its
discretion in denying defendant’s discovery request because the request was merely a
“fishing expedition.” See Johnson, 205 Ill. 2d at 408, 793 N.E.2d at 608 (“A trial court does
not abuse its discretion in denying a discovery request which ranges beyond the limited scope
of a post-conviction proceeding and amounts to a ‘fishing expedition.’ ”). The State cites
People v. Higgins, 71 Ill. App. 3d 912, 927, 390 N.E.2d 340, 351 (1st Dist. 1979), People
v. Hemphill, 62 Ill. App. 3d 977, 984, 379 N.E.2d 1284, 1290 (1st Dist. 1978), and People
v. Land, 304 Ill. App. 3d 169, 174, 710 N.E.2d 471, 474 (4th Dist. 1999), for the proposition
reversal is not warranted when the error is harmless.
¶ 15 In Higgins, the trial court mistakenly believed it lacked discretion to consolidate
separately charged offenses for a single jury trial. Higgins, 71 Ill. App. 3d at 927, 390 N.E.2d
at 351. While recognizing the trial court erred in refusing to exercise its discretion based on
the erroneous belief it had no discretion, the First District Appellate Court found the error
was harmless because “denying defendant’s motion for consolidation was the ‘only’ proper
conclusion that could have been reached” because there was “no thread of continuity between
the three offenses and absolutely no indication that they were part of the same comprehensive
transaction. [Citation.] Furthermore, considering their wide factual differences, it would have
unduly confused the jury had the trial court consolidated these three separate indictments for
a single jury trial.” Id. at 927-28, 390 N.E.2d at 352. Unlike the result in Higgins, denial of
defendant’s discovery motion is not the “only proper conclusion that could have been
reached” because the trial court could determine, after defendant makes an argument for
good cause, discovery is appropriate.
¶ 16 In Hemphill, the defendant argued the trial court erroneously believed it lacked
discretionary authority to allow the jury to review testimony of witnesses during
deliberations, based on a statement it made to the jury informing them no transcripts of
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witness testimony would be made available to them. Hemphill, 62 Ill. App. 3d at 983, 379
N.E.2d at 1289. However, the First District Appellate Court found no merit in defendant’s
argument because the court “did not state [it] could not allow the jury to review testimony
during its deliberations but that ‘there [would] be no transcript available for that purpose,’ ”
thus recognizing it did have discretion to furnish a transcript but was making the jury aware
it would not do so in that case. Id., 379 N.E.2d at 1289-90. The court noted even if the trial
judge abused his discretion, the error would be harmless due to the overwhelming evidence
of defendant’s guilt and the fact any error committed was not prejudicial. Id. at 984, 379
N.E.2d at 1290. Unlike Hemphill, however, the trial court here failed to recognize it had
discretion to order discovery and defendant was denied an opportunity to argue good cause.
Given his claim of ineffective assistance, we cannot say this error did not prejudice
defendant.
¶ 17 In Land, the defendant argued the trial court erroneously imposed consecutive sentences
under the belief it was required to do so, and thus the sentences were void. Land, 304 Ill.
App. 3d at 173-74, 710 N.E.2d at 473-74. This court disagreed, finding “the trial court,
within its discretion, could have imposed consecutive sentences *** had it believed such
sentences were necessary to protect the public.” (Emphasis in original.) Id. at 174, 710
N.E.2d at 474. This court further stated, “regardless of whether the court erroneously
imposed mandatory consecutive sentences, it did not lack ‘the inherent power to make or
enter the particular order involved,’ and the sentencing order here was not void.” Id.
Additionally, this court noted when the trial court sentenced defendant to consecutive
sentences, it “stated that it would not impose extended prison terms on each conviction
‘because of the severity of the statutory mandate for consecutive sentences’ ” and “ ‘I believe
the legislature is appropriate in mandating this result.’ ” Id. at 171, 710 N.E.2d at 472. These
statements support the conclusion the trial court would have imposed consecutive sentences
even absent its erroneous belief such sentences were mandatory. Here, no record evidence
supports a finding the court would have denied Pinkston’s discovery request, in toto, had it
exercised its discretion.
¶ 18 In this case, in September 2010 defendant filed a motion for discovery which contained
numerous requests for various information and records. During a May 2011 hearing, the trial
court denied defendant’s discovery request, presumably without considering any of
defendant’s requests, based on the erroneous belief it did not have discretion to order
discovery in postconviction proceedings. The State’s argument seems to be if the court would
have considered defendant’s discovery request, the court would have denied it because (1)
defendant was engaging in nothing more than a mere “fishing expedition” and (2) this would
be the only logical conclusion the court could draw based on the Daley factors. However, the
court did not rule on the merits and defendant was not given an opportunity to argue he had
“good cause” for his request. Whether defendant’s request was merely a “fishing expedition,”
or whether defendant can show “good cause” for his request is a determination best left to
the trial court. See People v. Harper, 347 Ill. App. 3d 499, 503, 807 N.E.2d 1001, 1004 (1st
Dist. 2004) (“The trial court judge is also in the best position to evaluate the merits of the
defendant’s motion.”). Unlike Higgins, Hemphill, and Land, defendant is not seeking to have
his convictions or sentences reversed but is asking for a limited remand to allow the trial
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court to properly exercise its discretion on his discovery request. We cannot foresee whether
the court would have allowed defendant’s discovery request in whole or in part following an
opportunity to argue good cause. We cannot determine whether the court’s failure to exercise
its discretion was harmless.
¶ 19 III. CONCLUSION
¶ 20 We remand for the limited purpose of allowing the trial court to exercise its discretion
on defendant’s discovery request and for such further proceedings as may be warranted.
¶ 21 Cause remanded with directions.
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