People v. Jones , 2017 IL App (4th) 140594 ( 2017 )

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Appellate Court Date: 2017.04.18
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People v. Jones, 2017 IL App (4th) 140594Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KOREY A. JONES, Defendant-Appellant.
District & No. Fourth District
Docket Nos. 4-14-0594, 4-14-0595 cons.
Filed February 17, 2017
Decision Under Appeal from the Circuit Court of Sangamon County, Nos. 07-CF-127,
Review 07-CF-312; the Hon. Steven H. Nardulli, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and James Ryan Williams,
Appeal of State Appellate Defender’s Office, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Amelia S. Buragas, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Justices Harris and Pope concurred in the judgment and opinion.
OPINION
¶1 Defendant, Korey A. Jones, appeals from the second-stage dismissal of his
postconviction petition and amended postconviction petition. In July 2007, defendant agreed
to a negotiated plea deal and pleaded guilty to armed robbery (720 ILCS 5/18-2(a)(2) (West
2006)) and home invasion (720 ILCS 5/12-11(a)(3) (West 2006)). In exchange for
defendant’s guilty plea, the State dismissed defendant’s remaining charges. The trial court
sentenced defendant to the agreed sentence of the plea agreement, 15 years for armed
robbery and 30 years for home invasion, which it ordered to be served concurrently.
¶2 In August 2012, defendant filed a petition for postconviction relief. He alleged numerous
constitutional violations, including a claim he was denied the effective assistance of counsel.
In April 2014, defendant filed an amended petition for postconviction relief. In June 2014,
the State filed a motion to dismiss defendant’s petition and amended petition, which the trial
court granted.
¶3 Defendant appeals, arguing (1) the record demonstrates postconviction counsel failed to
provide reasonable assistance in violation of Illinois Supreme Court Rule 651(c) (eff. Feb. 6,
2013) and (2) the trial court erred in denying his postconviction petitions at the second stage
because he made a substantial showing of ineffective assistance of trial counsel. We affirm.
¶4 I. BACKGROUND
¶5 On December 8, 2006, defendant entered a Walgreens store in Springfield, Illinois, with a
handgun and demanded a clerk give him money from the cash register. Detective Mark
Pointer, a detective with the Springfield police department, investigated the incident. After
publicizing surveillance video from the store, police received a tip identifying defendant as
the man in the video. United States marshals arrested defendant and conducted an interview
at which Pointer was present. Defendant admitted robbing the Walgreens store using a
firearm.
¶6 Pointer also asked defendant questions regarding a robbery at a Subway restaurant the
same day as the Walgreens robbery. Defendant later implicated himself in the December
2006 Subway robbery and a November 2006 robbery of a Family Dollar store. In addition to
those robberies, a victim of a January 2007 home invasion identified defendant from a police
lineup as the person who had robbed him at gunpoint.
¶7 Defendant was charged with multiple offenses regarding the aforementioned incidents.
At the time of the offenses, defendant was on mandatory supervised release for a 2005
aggravated battery conviction. In connection with the November 2006 Family Dollar store
robbery, docketed as Sangamon County case No. 07-CF-127, the State charged defendant
with armed robbery (count I) (720 ILCS 5/18-2(a)(2) (West 2006)), armed habitual criminal
(count II) (720 ILCS 5/24-1.7(a) (West 2006)), unlawful possession of a weapon by a felon
who had been convicted of a forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)),
and unlawful possession of a weapon by a felon while serving a term of mandatory
supervised release (count IV) (720 ILCS 5/24-1.1(a) (West 2006)).
¶8 In connection with the December 2006 Subway restaurant robbery, docketed as
Sangamon County case No. 07-CF-72, the State charged defendant with robbery (count I)
(720 ILCS 5/18-1(a) (West 2006)), armed robbery (count II) (720 ILCS 5/18-2(a) (West
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2006)), unlawful possession of a weapon by a felon who had been convicted of a forcible
felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon
by a felon while serving a term of mandatory supervised release (count IV) (720 ILCS
5/24-1.1(a) (West 2006)).
¶9 In connection with the December 2006 Walgreens store robbery, docketed as Sangamon
County case No. 07-CF-128, the State charged defendant with armed robbery (count I) (720
ILCS 5/18-2(a)(2) (West 2006)), armed habitual criminal (count II) (720 ILCS 5/24-1.7(a)
(West 2006)), unlawful possession of a weapon by a felon who had been convicted of a
forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a
weapon by a felon while serving a term of mandatory supervised release (count IV) (720
ILCS 5/24-1.1(a) (West 2006)).
¶ 10 In connection with the January 2007 home invasion, docketed as Sangamon County case
No. 07-CF-312, the State charged defendant with home invasion (count I) (720 ILCS
5/12-11(a)(3) (West 2006)), armed robbery (count II) (720 ILCS 5/18-2(a)(2) (West 2006)),
unlawful possession of a weapon by a felon who had been convicted of a forcible felony
(count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon by a
felon while serving a term of mandatory supervised release (count IV) (720 ILCS 5/24-1.1(a)
(West 2006)).
¶ 11 In July 2007, defendant entered a negotiated plea of guilty to one count of armed robbery
in connection with the December 2006 Family Dollar store robbery (count I in No.
07-CF-127) and one count of home invasion (count I in No. 07-CF-312). In exchange, the
State dismissed the remaining charges. The trial court admonished defendant of his rights at
his plea hearing, including informing him of the minimum and maximum sentence, and the
period of mandatory supervised release. Defendant confirmed he was satisfied with his
communication with his attorney and was not taking any prescribed medication. The court
sentenced defendant consistent with the terms of the plea agreement. Defendant took no
direct appeal.
¶ 12 In June 2008, defendant filed a pro se motion to withdraw his guilty plea, which the trial
court dismissed later that month as untimely. Defendant’s motion alleged he “was denied the
effective assistance of counsel when [he] was on medication for a gunshot wound and
counsel let [him] enter a guilty plea.” Defendant also alleged counsel was ineffective because
he “was under a life threatening situation and [counsel] let him enter a guilty plea.”
Defendant took no appeal.
¶ 13 In August 2012, defendant filed a pro se petition for postconviction relief under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2012)). Defendant again
alleged he was denied the effective assistance of counsel. He also contended the State
violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and numerous provisions of
the Illinois Constitution, including the proportionate penalties clause (Ill. Const. 1970, art. I,
§ 11), separation of powers clause (Ill. Const. 1970, art. II, § 1), and double jeopardy clause
(Ill. Const. 1970, art. I, § 10). Defendant also alleged the State violated the equal protection
and due process clauses of both the Illinois Constitution (Ill. Const. 1970, art. I, § 2) and the
United States Constitution (U.S. Const., amend. XIV, § 1).
¶ 14 In September 2012, the trial court appointed counsel to represent defendant in
postconviction proceedings. Two days later, defendant’s postconviction counsel filed a
motion to remove a copy of defendant’s court file from the Sangamon County courthouse to
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“review the court file and [defendant’s] pro se pleadings, then communicate with [defendant]
what amendments, if any, are required for [defendant’s] post-conviction proceedings.” The
court granted the motion.
¶ 15 In late September 2012, the State filed a motion to dismiss defendant’s petition for
postconviction relief. The State argued (1) defendant’s petition failed to state facts and
merely stated legal conclusions, (2) defendant waived his right to claim errors that could
have been raised on direct appeal, and (3) defendant’s petition was not filed within the
three-year period after his conviction as required by the Act (725 ILCS 5/122-1(c) (West
2012)).
¶ 16 In January 2014, defendant’s postconviction counsel filed a motion for leave to withdraw
as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Counsel asserted,
inter alia, defendant “cannot demonstrate that his trial counsel’s performance was deficient”
and “cannot show that there is a reasonable probability that, but for [trial] counsel’s alleged
errors, [defendant] would not have entered a plea of guilty.”
¶ 17 Postconviction counsel explained defendant took issue with the armed habitual criminal
(720 ILCS 5/24-1.1(a) (West 2006)) charges that were later dismissed as part of his plea
agreement. Defendant argued he did not meet the statutory requirements for the armed
habitual criminal charges in light of courts’ interpretation of that statute after he pleaded
guilty herein, but his trial counsel failed to advise him to take the position these courts later
adopted and, therefore, was ineffective as counsel. Postconviction counsel acknowledged
trial counsel believed the two predicate offenses required for the charge of habitual criminal
were present, but the First District Appellate Court later concluded, in a decision two years
after defendant’s guilty plea, aggravated battery without bodily harm does not qualify as a
predicate offense. People v. Schmidt, 392 Ill. App. 3d 689, 924 N.E.2d 998 (2009); see In re
Rodney S., 402 Ill. App. 3d 272, 287, 932 N.E.2d 588, 601 (2010) (“We[, the Fourth
District,] adopt the First District’s analysis in Schmidt ***.”). Postconviction counsel argued,
however, under Strickland v. Washington, 466 U.S. 668 (1984), “trial counsel’s belief was
not objectively unreasonable in light of the lack of precedent at the time of defendant’s plea.”
¶ 18 Postconviction counsel also noted defendant’s position that he was prejudiced by trial
counsel’s error, as he would have proceeded to trial if he had known the charge of habitual
criminal against him was unsupported by his aggravated battery charge. Counsel noted,
however, the prejudice prong of Strickland required a claim of actual innocence or an
articulation of a plausible defense which could have been raised at trial. Counsel argued
defendant could not satisfy the prejudice prong, as defendant “provided only a bare assertion
that he would have proceeded to trial on the several cases had he known that he was
incorrectly charged with armed habitual criminal in some of those cases.” Nor did defendant
state any plausible trial defense was foreclosed or he was actually innocent of the “multitude”
of charges against him.
¶ 19 Postconviction counsel attached an affidavit pursuant to Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013) to his motion to withdraw. In it, counsel certified he had met with
defendant in person and he had “examined the record of the proceedings of the trial and all
appellate proceedings and post-conviction proceedings.”
¶ 20 In March 2014, the trial court denied counsel’s motion to withdraw and granted leave to
file an amended postconviction petition. In April 2014, postconviction counsel filed an
amended petition for postconviction relief. The amended petition reiterated trial counsel had
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advised defendant he was validly charged with armed habitual criminal. The petition stated
defendant was improperly charged with armed habitual criminal and cited Schmidt.
Defendant contended he would not have accepted a plea deal had he known he was
improperly charged.
¶ 21 In May 2014, the State filed a memorandum in support of its motion to dismiss
defendant’s postconviction petition and his amended postconviction petition. Its
memorandum reiterated the arguments made in its motion to dismiss. Additionally, the State
argued defendant’s bare assertion that he would not have pleaded guilty absent the
ineffectiveness of trial counsel is insufficient to satisfy defendant’s burden under Strickland.
It noted defendant’s petition and amended petition did not raise a claim of innocence or a
plausible defense that could have been raised at trial.
¶ 22 In June 2014, the trial court granted the State’s motion to dismiss defendant’s
postconviction petition and amended postconviction petition. The court noted defendant
pleaded guilty to armed robbery and home invasion and, in exchange, the State dropped two
cases in their entirety (Nos. 07-CF-72 and 07-CF-128) and dropped the remaining charges in
two others (Nos. 07-CF-127 and 07-CF-312). The court acknowledged, two years after
defendant pleaded guilty, the First District Appellate Court in Schmidt concluded aggravated
battery of a law enforcement officer was not a forcible felony of the type to qualify as a
predicate offense under the armed habitual criminal statute. The court, however, was not
persuaded by defendant’s argument, and it summarized it as defendant arguing that trial
counsel was ineffective because “[counsel] did not foresee that two years after [defendant’s]
guilty plea was entered that an appellate court would conclude that aggravated battery of a
law enforcement officer was not a forcible felony.” The court went on to raise the possibility
“trial counsel would have been reckless had he encouraged defendant to go to trial to
challenge *** the statute, given the state of the law at the time.”
¶ 23 The trial court also concluded defendant had not claimed he was innocent or asserted the
availability of a plausible defense to the offenses to which he pleaded guilty. The court also
found no reasonable assertion was made that, if trial counsel never advised defendant the
habitual criminal charges were valid, defendant would not have pleaded guilty.
¶ 24 This appeal followed.
¶ 25 II. ANALYSIS
¶ 26 Defendant makes two arguments on appeal: (1) his postconviction counsel failed to
provide reasonable assistance in violation of Rule 651(c) because counsel failed to review
defendant’s judicial records as he certified and (2) the trial court erred when it granted the
State’s motion and dismissed his petitions at the second stage of his postconviction
proceedings, since he made a substantial showing he was denied effective assistance of trial
counsel. The State argues in response that defendant (1) has failed to overcome the
presumption postconviction counsel provided reasonable assistance because the record
establishes counsel substantially complied with Rule 651(c) and (2) cannot prove he was
denied effective assistance of trial counsel under Strickland. The State also argues
defendant’s petitions are time-barred.
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¶ 27 A. The Post-Conviction Hearing Act
¶ 28 The Act (725 ILCS 5/122-1 to 122-7 (West 2012)) provides a three-step process for
adjudicating a postconviction petition. During the first stage, the “trial court, without input
from the State, examines the petition only to determine if [it alleges] a constitutional
deprivation unrebutted by the record, rendering the petition neither frivolous nor patently
without merit.” (Emphasis in original.) People v. Phyfiher, 361 Ill. App. 3d 881, 883, 838
N.E.2d 181, 184 (2005). If the trial court does not dismiss the petition at the first stage, the
matter proceeds to the second stage, where the court will appoint counsel to an indigent
defendant who requests counsel, and appointed counsel then has the opportunity to amend
the claims in the postconviction petition. People v. Patton, 315 Ill. App. 3d 968, 971-72, 735
N.E.2d 185, 188 (2000). The State must then file either an answer or a motion to dismiss.
People v. Johnson, 377 Ill. App. 3d 854, 858, 879 N.E.2d 977, 980 (2007). If the petition
makes a showing of a constitutional violation, it then proceeds to the third stage, at which the
court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). “An evidentiary
hearing will be held only where the allegations of the postconviction petition make a
substantial showing that the defendant’s constitutional rights have been violated and the
petition is supported by affidavits, records, or other evidence or explains why these items are
not attached.” People v. Waldrop, 353 Ill. App. 3d 244, 249, 818 N.E.2d 888, 893 (2004).
The standard of review for a first- or second-stage dismissal is de novo. People v. Coleman,
183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998). In the present case, the court
dismissed defendant’s petition at the second stage of the postconviction proceedings.
¶ 29 B. Reasonable Assistance of Postconviction Counsel
¶ 30 Defendant first argues his postconviction counsel failed to provide reasonable assistance
in violation of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) because counsel’s April
2014 certification that he had reviewed record must be false when the “court-reporter
certificate *** indicates the [transcript of the guilty plea hearing] was generated subsequent
to [postconviction counsel’s] April 2014 [Rule] 651(c) certificate.”
¶ 31 A defendant’s right to postconviction counsel is wholly statutory. People v. Perkins, 229
Ill. 2d 34, 42, 890 N.E.2d 398, 402 (2007). “Therefore, a petitioner is entitled only to the
level of assistance required” under the Act. Id. Under the Act, a defendant is entitled only to
reasonable assistance of counsel. Id. Reasonable assistance of counsel is premised on
counsel’s compliance with Rule 651(c). See id. at 42, 890 N.E.2d at 403. Although strict
compliance is not necessary, postconviction counsel must substantially comply with Rule
651(c). Our review is de novo. People v. Mason, 2016 IL App (4th) 140517, ¶ 19, 56 N.E.3d
1141.
¶ 32 Under Rule 651(c), postconviction counsel must file a certificate, indicating he or she
“has consulted with petitioner by phone, mail, electronic means or in person to ascertain his
or her contentions of deprivation of constitutional rights, has examined the record of the
proceedings at the trial, and has made any amendments to the petitions filed pro se that are
necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff.
Feb. 6, 2013).
¶ 33 Defendant’s argument is unpersuasive as “he equates the preparation of the transcripts of
the guilty-plea proceedings *** with the court reporter’s certification of those proceedings.”
(Emphases in original.) People v. Little, 2011 IL App (4th) 090787, ¶ 14, 957 N.E.2d 102-6-
(rejecting the defendant’s assertion an Illinois Supreme Court Rule 604(d) (eff. July 1, 2006)
certificate is inadequate if filed prior to the date contained on the certification of the
proceedings). In Little, this court held “ ‘the date the court reporter certified the transcripts in
preparation of the record on appeal is not evidence of the first date a defense attorney could
have reviewed the transcripts.’ ” Id. ¶ 16. This is because “no need exists to prepare a record
on appeal until a notice of appeal has been filed, which of course occurs only ‘within 30 days
after the entry of the final judgment appealed from or if a motion directed against the
judgment is timely filed, within 30 days after the entry of the order disposing of the
motion.’ ” Id. ¶ 17 (quoting Ill. S. Ct. R. 606(b) (eff. Mar. 20, 2009)).
¶ 34 In the case at bar, the record contradicts defendant’s argument postconviction counsel did
not review the transcript of the guilty plea hearing, as required by Rule 651(c). In
postconviction counsel’s April 2014 Rule 651(c) certificate, counsel stated he “examined the
record of proceedings at the trial court and postconviction pleadings of record.” He further
certified he discussed defendant’s contentions and his postconviction proceedings in person
and by mail. Accordingly, we find defendant’s postconviction counsel substantially complied
with Rule 651(c).
¶ 35 C. Ineffective Assistance of Trial Counsel
¶ 36 Defendant argues the trial court erred when it granted the State’s motion and dismissed
his petitions at the second stage of his postconviction proceedings because he made a
substantial showing he was denied effective assistance of trial counsel. Specifically, he
claims counsel failed to advise defendant that the armed habitual criminal charges against
him were invalid and, had he done so, he would not have pleaded guilty. For clarity, we note
the armed habitual criminal charges against defendant were dismissed as part of the plea
deal, but nonetheless, defendant argues he would not have taken the plea deal had he known
some of the charges against him were invalid. Essentially, defendant suggests he thought the
penalties he faced were much greater, which in turn influenced his decision to take the plea
deal.
¶ 37 A defendant’s claim of ineffective assistance of counsel is analyzed under the
two-pronged test set forth in Strickland. People v. Cathey, 2012 IL 111746, ¶ 23, 965 N.E.2d
1109. To prevail on such a claim, “a defendant must show both that counsel’s performance
was deficient and that the deficient performance prejudiced the defendant.” People v.
Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish deficient
performance, the defendant must show his attorney’s performance fell below an objective
standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808 N.E.2d 939, 953
(2004) (citing Strickland, 466 U.S. at 687). “When a guilty plea is challenged on ineffective
assistance grounds, the prejudice prong of Strickland is satisfied if a reasonable probability
exists that, but for counsel’s errors, the defendant would not have pleaded guilty and would
have insisted on going to trial.” People v. Miller, 346 Ill. App. 3d 972, 982, 806 N.E.2d 759,
767 (2004). A defendant must satisfy both prongs of the Strickland standard, and the failure
to satisfy either prong precludes a finding of ineffective assistance of counsel. People v.
Clendenin, 238 Ill. 2d 302, 317-18, 939 N.E.2d 310, 319 (2010).
¶ 38 Assuming, arguendo, that trial counsel’s advice regarding the armed habitual criminal
charges was objectively unreasonable, defendant has not shown any possible resulting
prejudice. Defendant argues he pleaded guilty because the armed habitual criminal charges
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carried a maximum prison term, assuming he would receive good-time credit of 25½ years,
which was 3 years more than the next highest maximum sentences he faced among the 12
other charges against him. We note defendant’s negotiated plea deal led to the dismissal of
14 other charges, including Class X felonies with sentencing enhancements, and the trial
court sentenced defendant to relatively low sentences of 30 and 15 years in accordance with
the plea.
¶ 39 These facts contradict defendant’s claim he would not have pleaded guilty had his
charges not included two counts of armed habitual criminal. Defendant makes no claims of
innocence or plausible defenses as to the charges to which he actually pleaded guilty. It is
only logical that a claim of actual innocence in a postconviction petition should only be
directed against the charges of which defendant was actually convicted. We find no
reasonable probability here, but for counsel’s alleged errors, defendant would not have
pleaded guilty and would have insisted on going to trial. Accordingly, defendant has failed to
show he was prejudiced by trial counsel’s alleged deficient representation. As defendant
failed to show prejudice, his claim of ineffective assistance of counsel lacks merit. Id.Because we are affirming the trial court’s judgment on other grounds, we need not address
the State’s contention defendant’s petition was time-barred.
¶ 40 III. CONCLUSION
¶ 41 We affirm the trial court’s judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
¶ 42 Affirmed.
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