People v. Jordan ( 2022 )

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).
2022 IL App (3d) 190768-UOrder filed June 6, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0768
v. ) Circuit No. 10-CF-724
)
SKYLAR JORDAN, ) Honorable
) Paul P. Gilfillan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court.
Justice Daugherity concurred in the judgment.
Justice Holdridge specially concurred.
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ORDER
¶1 Held: The court did not err in dismissing defendant’s postconviction petition.
¶2 Defendant, Skylar Jordan, appeals the second-stage dismissal of his postconviction
petition. Defendant argues he made a substantial showing that posttrial and appellate counsel
provided ineffective assistance for failing to raise the issue that defendant was denied a fair trial
when the Peoria County circuit court imposed a firearm enhancement for one attempted murder
conviction that had not been found by the jury. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with two counts of first degree murder (720 ILCS 5/9-1(a)(1),
(a)(2) (West 2010)), two counts of attempted first degree murder (id. § 8-4(a), 9-1(a)(1)), and
two counts of aggravated battery with a firearm (id. § 12-4.2(a)(1)) following a shooting where
Anthony Johnson was killed, and Angela Johnson and Justin Stanley were injured. Defendant
retained private counsel and proceeded to a jury trial.
¶5 Evidence presented at trial established that a vehicle stopped in front of the Johnsons’
residence, defendant exited the vehicle and began shooting a firearm. A bullet grazed Angela’s
lower abdomen. Stanley suffered a gunshot wound to his shoulder which fractured his scapula
and vertebrae. Anthony died of a gunshot wound to the chest.
¶6 At the conclusion of closing arguments, the court gave the following jury instructions
pertaining to the offenses against Angela:
“To sustain the charge of attempt first degree murder as to Angela
Johnson, the State must prove the following propositions: First proposition, that
the defendant performed an act which constituted a substantial step toward the
killing of Angela Johnson.
And second proposition, that the defendant did so with the intent to kill
Angela Johnson.
***
To sustain the allegation made in connection with the offense of attempt first
degree murder as to Angela Johnson, the State must prove the following
proposition: That during the commission of the offense of attempt first degree
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murder, the defendant personally discharged a firearm that proximately caused
great bodily harm to Angela Johnson.
***
To sustain the charge of aggravated battery with a firearm as to Angela
Johnson, the State must prove the following propositions: First proposition that
the defendant knowingly caused injury to Angela Johnson.
And second proposition, that the defendant did so by discharging a
firearm.”
¶7 The jury found defendant guilty of first degree murder of Anthony and attempted first
degree murder and aggravated battery with a firearm of Stanley and Angela. Further, the jury
found that during the commission of the offense of first degree murder, defendant personally
discharged a firearm that proximately caused the death of another person. The jury did not find
that during the commission of the offense of attempted first degree murder, defendant personally
discharged a firearm that proximately caused great bodily harm to Angela. However, the jury did
make this finding in regard to the commission of the attempted first degree murder of Stanley.
¶8 Before sentencing, trial counsel withdrew, and the court appointed the public defender to
represent defendant. The court sentenced defendant to 55 years’ imprisonment for the first
degree murder of Anthony and a consecutive term of 15 years’ imprisonment for attempted first
degree murder of Stanley. A 25-year firearm enhancement was added to each conviction. The
court sentenced defendant to 10 years’ imprisonment for attempted first degree murder of
Angela, with a 20-year firearm enhancement that was to run concurrent to the other convictions.
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¶9 Defendant appealed arguing that trial counsel had been ineffective. We affirmed finding
defendant was not prejudiced by trial counsel’s deficient performance. People v. Jordan, 2015 IL
App (3d) 120756-U.
¶ 10 Defendant filed a postconviction petition as a self-represented litigant. The court
advanced the petition to the second stage where defendant continued to proceed as a self-
represented litigant. Defendant’s petition alleged:
“The State failed to prove every material allegation in the indictment as to Angela
Johnson which inadvertently effected every indictment cause the weapon was in
all the indictments.
***Appellate counsel was deficient for not addressing this error, that
deficient act prejudiced the Petitioner cause had this error been addressed the
outcome would have been different.”
¶ 11 The court granted the State’s motion to dismiss.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant argues he made a substantial showing that posttrial and appellate
counsel provided ineffective assistance for failing to raise the issue that defendant was denied a
fair trial where the circuit court imposed a firearm enhancement for his attempted murder
conviction relating to Angela that had not been found by the jury. See Apprendi v. New Jersey,
530 U.S. 466 (2000).
¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) sets out
a three-stage proceeding in which a criminal defendant may assert that his conviction resulted
from a substantial denial of his rights under the United States Constitution, the Illinois
Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the second stage of a
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postconviction proceeding, defendant must make “a substantial showing of a constitutional
violation.” People v. Domagala, 2013 IL 113688, ¶ 35. This “substantial showing” is a measure
of the legal sufficiency of the petition. Id. We review de novo the second-stage dismissal of a
postconviction petition. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
¶ 15 At the outset, we find that defendant has waived the claim he makes on appeal. “Any
claim of substantial denial of constitutional rights not raised in the original or an amended
petition is waived.” 725 ILCS 5/122-3 (West 2018). “[A] claim not raised in a petition cannot be
argued for the first time on appeal.” People v. Jones, 213 Ill. 2d 498, 505 (2004). Defendant
attempts to extract from his petition two distinct ineffective assistance arguments. However,
defendant’s petition only shares the core ineffective assistance claim with his argument on
appeal. In his petition, defendant argues the State failed to prove every material allegation as to
Angela, and that failure impacted the other verdicts because the same weapon was involved in
each offense. Only on appeal does defendant more specifically argue the circuit court erred by
enhancing his sentence where the jury did not make the necessary finding. For this reason,
defendant has waived this claim. See Jones, 213 Ill. 2d at 505.
¶ 16 Regardless, we recognize that “the waiver language contained in section 122-3 [of the
Act] has never been viewed as an ironclad bar.” Id. Therefore, we also address the merits of
defendant’s argument on appeal.
¶ 17 “To prevail on a claim of ineffective assistance of counsel, the defendant must show both
that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced
defendant such that he was deprived of a fair trial.” People v. Cordell, 223 Ill. 2d 380, 385
(2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The failure to satisfy either
the deficiency prong or the prejudice prong of the Strickland test precludes a finding of
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ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 377 (2000). “[A] court need
not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. “If
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ***
that course should be followed.” Id. “If the underlying issue is not meritorious, then defendant
has suffered no prejudice.” Enis, 194 Ill. 2d at 377.
¶ 18 Here, the court sentenced defendant to 10 years’ imprisonment plus a 20-year firearm
enhancement for attempted first degree murder of Angela. Defendant argues this was improper
because the jury specifically found that the State had not proved that defendant personally
discharged a firearm that proximately caused great bodily harm to Angela. Citing Apprendi, 530
U.S. at 490 (“any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”). However, the
jury found defendant guilty of aggravated battery with a firearm of Angela, which includes a
finding that defendant discharged a firearm. Furthermore, the jury found that defendant was
guilty of attempted first degree murder of Angela. The 20-year firearm enhancement for
attempted first degree murder only requires “an attempt to commit first degree murder during
which the person personally discharged a firearm.” 720 ILCS 5/8-4(c)(1)(C) (West 2018).
Accordingly, all the facts in the firearm enhancement were submitted to the jury and proved
beyond a reasonable doubt. Therefore, defendant cannot make a substantial showing that he
suffered prejudiced. The court did not err in dismissing defendant’s postconviction petition.
¶ 19 III. CONCLUSION
¶ 20 The judgment of the circuit court of Peoria County is affirmed.
¶ 21 Affirmed.
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¶ 22 JUSTICE HOLDRIDGE, specially concurring:
¶ 23 While I agree with the disposition in this case, I would not reach the merits, but would
instead solely find that the defendant waived consideration of this issue as he failed to raise it in
his postconviction petition. The majority cites our supreme court in Jones, 213 Ill. 2d at 505, for
the proposition that “the waiver language contained in section 122-3 [of the Act] has never been
viewed as an ironclad bar.” Supra ¶ 16. However, further reading of that case shows that the
supreme court chastised the appellate court for excusing waiver in these instances. After a lengthy
review of the topic, the court stated:
“Our detailed discussion of this issue is intended to stress that our appellate court
is not free, as this court is under its supervisory authority, to excuse, in the context
of postconviction proceedings, an appellate waiver caused by the failure of a
defendant to include issues in his or her postconviction petition.” Id. at 508.
The court noted:
“ ‘[T]his holding does not leave a postconviction petitioner such as defendant
entirely without recourse. A defendant who fails to include an issue in his original
or amended postconviction petition, although precluded from raising the issue on
appeal from the petition’s dismissal, may raise the issue in a successive petition if
he can meet the strictures of the “cause and prejudice test.” ’ ” Id. (quoting People
v. Jones, 211 Ill. 2d 140, 148-49 (2004)).
Thus, as the defendant has waived this issue by failing to raise it in his postconviction petition,
we cannot consider the merits of the issue on appeal.
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