People v. Thrailkill ( 2023 )

2023 IL App (2d) 210605-UNo. 2-21-0605
Order filed April 27, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellee, )
)
v. ) No. 11-CF-816
)
CHAZ THRAILKILL, ) Honorable
) Joseph Pedersen,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying second, amended petition for postconviction
relief where defendant did not file a motion to withdraw his guilty plea, thereby
forfeiting claims he could have raised in such a motion; claims defendant arguably
could not have raised in a motion to withdraw his guilty plea fail to show a
substantial violation of a constitutional right.
¶2 Defendant, Chaz Thrailkill, appeals from the denial of his second stage postconviction
petition. For the reasons stated below, we affirm the judgment of the circuit court of De Kalb
County.
¶3 I. BACKGROUND
2023 IL App (2d) 210605-U¶4 On April 1, 2014, defendant pleaded guilty to one count of first degree murder (720 ILCS
5/9-1(a)(1) (West 2014)) and one count of attempt aggravated discharge of a firearm (720 ILCS
5/24-1.2(a)(2) (West 2014)). Pursuant to a negotiated plea agreement, the trial court sentenced
defendant to 25 years’ imprisonment for the first degree murder charge and a consecutive term of
5 years’ imprisonment for the attempt aggravated discharge of a firearm charge. Defendant did not
file a posttrial motion or direct appeal.
¶5 On March 23, 2017, defendant filed a pro se petition for postconviction relief alleging that
his counsel was ineffective because (1) at the time of his plea he believed his sentences of 25 years
and five years were going to run concurrently and counsel failed to inform him that the total
sentence would be 30 years, (2) counsel did not inform him that the two sentences could not be
legally served consecutively because they arose out of a single course of conduct, (3) counsel failed
to order a presentence investigation and to present mitigating evidence, and (4) his sentence for
first degree murder was illegal because it did not include an enhancement for personal discharge
of a firearm. In a supplemental pro se petition, defendant additionally claimed that the sentence
and statute requiring him to serve 100% time was unconstitutional because he was 19 years old on
the date of the crime.
¶6 The trial court advanced the petition to the second stage on December 5, 2017. On February
1, 2021, defendant’s retained counsel filed a motion for leave to file a final, amended
postconviction petition. The petition stated that a copy of the amended petition was attached.
Although the trial court and both parties on appeal set forth the amended petition’s claims, the
amended petition itself does not appear in the record on appeal.
¶7 The amended petition putatively asserted the following claims: defendant was deprived of
effective assistance by (1) his counsel’s failure to inform him of a possible defense based on a
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2023 IL App (2d) 210605-Uprivate person’s right to use force to make an arrest, as well as counsel’s failure to raise the defense;
(2) counsel’s failure to oppose the prosecution’s motions in limine to preclude evidence that the
deceased victim, Steven Agee, had committed a robbery, as well as to investigate and present this
material as evidence that the victim was the aggressor; (3) counsel’s failure to oppose the
prosecution’s motions in limine to preclude evidence that the deceased had ingested alcohol and
cannabis; and (4) counsel’s failure to explain to him that his sentences for first degree murder and
attempt aggravated discharge of a firearm would have to be served consecutively. The amended
petition reportedly states these additional claims: (5) his sentence of 25 years for first degree
murder with a specification of personal discharge was an illegal sentence that must be vacated; (6)
his consecutive sentences violated the one act, one crime rule because they arose out of single act;
(7) his plea was involuntary where he, 19 years old at the time of the crime, mistakenly believed
that he was subject to a sentence of life imprisonment or 60 years for first degree murder; and (8)
as a near juvenile, he should receive 50% credit for his time in custody and his sentence of 100%
time is unconstitutional. The amended petition also incorporated the claims in defendant’s original
pro se petition, except for the claims that his counsel was ineffective for failing to order a
presentence investigation report and to present mitigating evidence.
¶8 Two affidavits from defendant were purportedly attached to the amended petition.
According to defendant’s brief, in the first affidavit he swore that his previous counsel told him
that he would serve only 25 years in prison and failed to explain to him the difference between
consecutive and concurrent sentences. Apparently, defendant stated he would not have pleaded
guilty if he had known that he would receive a sentence of 30 years. The first affidavit also alleged
that defendant’s attorney never presented documentation pertaining to the criminal history or
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2023 IL App (2d) 210605-Uaggressive nature of defendant’s victim; had defendant known of such information, he would have
continued with his “original trial strategy.”
¶9 The second affidavit allegedly set forth a scenario of the events of November 23, 2011, in
which defendant attempted a failed citizen’s arrest of the victim, was assaulted by the victim, and
“in fear and self-defense” fired his firearm. According to defendant, his previous counsel never
discussed citizen’s arrest as a defense strategy, despite defendant’s having advised him of a
previous incident involving the victim that defendant witnessed. According to defendant’s brief,
pertinent public records are attached as an exhibit to the amended petition. As previously noted,
the amended petition is not in the record on appeal.
¶ 10 On September 22, 2001, the trial court granted the State’s motion to dismiss the amended
postconviction petition. This timely appeal followed.
¶ 11 II. ANALYSIS
¶ 12 The Post–Conviction Hearing Act (725 ILCS 5/122–1 et seq. (West 2014)) “provides a
mechanism by which a criminal defendant can assert that his conviction and sentence were the
result of a substantial denial of his rights under the United States Constitution, the Illinois
Constitution, or both.” People v. English, 2013 IL 112890, ¶ 21. In noncapital cases, the Act
provides for three stages. People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). During the second
stage of postconviction proceedings, as here, the petitioner bears the burden of making a
substantial showing of a constitutional violation. Id. at 473.
¶ 13 All well-pleaded facts not positively rebutted by the trial record are taken as true. Id. The
trial court does not engage in fact-finding or credibility determinations at the dismissal stage.
People v. Domagala, 2013 IL 113688, ¶ 35. We review a trial court’s dismissal of a postconviction
petition at the second stage de novo. Pendleton, 223 Ill.2d at 473.
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2023 IL App (2d) 210605-U¶ 14 Claims of ineffective assistance of counsel are resolved under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must establish that:
(1) “counsel’s representation fell below an objective standard of reasonableness,” and (2) counsel’s
“deficient performance prejudiced” the defendant. Strickland, 466 U.S. at 688. In evaluating
sufficient prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. As both prongs must be established, either may be addressed first, and, if the defendant has
failed to satisfy one prong, the other need not be considered. People v. Irvine, 379 Ill. App. 3d 116,
130 (2008).
¶ 15 A. Incomplete Record
¶ 16 Preliminarily, we address the State’s contention that because the record on appeal is
incomplete, the appeal should be dismissed. In order to support a claim of error on appeal, the
appellant has the burden to present a sufficiently complete record. Webster v. Hartman, 195 Ill. 2d
426, 432 (2001). In the absence of such a record on appeal, it will be presumed that the order
entered by the circuit court was in conformity with the law and had an adequate factual basis. Id.;
Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). “Any doubts which may arise from the
incompleteness of the record will be resolved against the appellant.” Foutch, 99 Ill. 2d at 392.
¶ 17 Here, appellant’s record is deficient in two important ways. First, as noted above, defendant
failed to include a copy of his amended postconviction petition in the record. Defendant’s brief
contains cites to “S.R. C—,” which presumably references a supplemental record on appeal, but
there is no supplemental record for our review. Although the trial court and both parties set forth
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2023 IL App (2d) 210605-Uand analyze defendant’s claims, that is an unsatisfactory substitute for defendant’s providing the
entire amended petition for our review.
¶ 18 Second, defendant failed to include a transcript of the guilty plea hearing in the record on
appeal. The only transcript of the hearing in the record is a copy attached to the State’s motion to
dismiss the petition. We may make do with that copy. Cf. In re Marriage of Prill, 2021 IL App
(1st) 200516, ¶ 11 n2 (transcript of trial court’s oral findings was attached as an exhibit to
respondent’s response to petitioner’s motion to reconsider). However, we do not condone
defendant’s failure to fulfil his responsibilities. In dismissing the petition, the trial court relied on
the State’s description of the testimony of two eyewitnesses and the forensic pathologist who did
the autopsy on the victim as its factual basis for the plea; defendant stipulated that the witnesses
would testify as the state indicated, and the trial court found that the State had sustained beyond a
reasonable doubt the charges against defendant.
¶ 19 The court also relied on defendant’s testimony during the plea hearing indicating that he
knowingly and voluntarily entered into a fully negotiated plea agreement and understood his
appeal rights, including the procedure for filing a motion to withdraw the guilty plea or reconsider
the sentence. Notably, defendant’s brief does not mention the hearing proceedings, which refute
his claim that he “was unaware of the consecutive sentences until he was in prison and was told
his out date.” See People v. Pendleton, 223 Ill. 2d 458, 473 (2006) (only well-pleaded facts not
positively rebutted by the trial record are taken as true).
¶ 20 B. Forfeiture
¶ 21 Even if we were to assume, arguendo, that defendant’s appeal is adequately presented by
the trial court’s written decision and the parties’ briefs, defendant has forfeited most of his claims
of error by failing to file a motion to withdraw his guilty plea pursuant to Rule 604(d) (Ill. S. Ct.
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2023 IL App (2d) 210605-UR. 604(d) (eff. Jan.1., 2023)). Under Rule 604(d), defendant had 30 days from the imposition of
the sentence to challenge the plea by filing a motion to withdraw the plea of guilty and vacate the
judgment, and “any issue not raised by the defendant in the motion to *** withdraw the plea of
guilty and vacate the judgment shall be deemed waived.” See People v. Stewart 123 Ill. 2d 368,
374 (1988) (applying the forfeiture rule to postconviction proceedings as well as to appeals). Like
the Illinois Supreme Court, we have interpreted the rule to provide that to the extent defendant
“could have raised” the challenge in a motion to withdraw his guilty plea, the issue is forfeited.
See People v. Vilces, 321 Ill. App. 3d 937, 941 (2001) (citing People v. Hampton, 165 Ill. 2d 472,
478 (1995)).
¶ 22 Accordingly, we address here only those claims that defendant arguably could not have
raised in a motion to withdraw his guilty plea.
¶ 23 In defendant’s second claim, he contends that he was deprived of effective assistance by
his counsel’s failure to inform him prior to his plea of a possible defense based on a private
person’s right to use force to make an arrest. Defendant’s defense of an attempted citizen’s arrest
was strongly contradicted by the expected eyewitness testimony offered as the factual basis for the
guilty plea and stipulated to by defendant. Furthermore, pursuing this defense would have exposed
defendant, if found guilty, to a far more severe sentence—potential life imprisonment, 1 as opposed
to 30 years’ imprisonment under the guilty plea offer.
1
Twenty to sixty years for first degree murder (730 ILCS 5/5-4.5-20(a) (West 2012) plus
twenty-five years for personally discharging a firearm during the commission of the offense. 730
ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012).
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2023 IL App (2d) 210605-U¶ 24 Defendant arguably might not have known to raise this defense in a motion to withdraw
his guilty plea if his counsel had not informed him of it. See, e.g.., People v. Whitfield, 217 Ill. 2d
177, 188 (2005) (petitioner’s claim that he would not have pleaded guilty was not forfeited where
he did not learn that his sentence would include three years of mandatory supervised release until
he was in prison). However, because the claim lacks rational merit, defendant has not shown that
counsel was ineffective. See Strickland, 466 U.S. at 690 (“counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
judgment”).
¶ 25 Nor do defendant’s claims that trial counsel was ineffective for failing to oppose the State’s
motions in limine show that counsel was ineffective. Defendant pleaded guilty before trial counsel
was required to respond to the motions. By pleading guilty, defendant put an end to counsel’s trial
preparations, including litigation of the motions in limine. Even if not forfeited for failure to file a
motion to withdraw the guilty plea, these claims were procedurally defaulted, and counsel was not
ineffective for failing to pursue them.
¶ 26 Defendant claims that his 25-year sentence for first degree murder under a count that
included a specification of personal discharge of a firearm is an illegal sentence and must be
vacated. According to defendant, the failure to impose the mandatory firearm enhancement, which
would have resulted in a sentence of 45 years (see footnote 1, above), renders his sentence void.
¶ 27 This claim is barred because defendant “expressly invited and acquiesced in the claimed
error.” People v. Moore, 2021 IL App (2d) 200407, ¶ 33. The record establishes that defendant
voluntarily and knowingly pleaded guilty in exchange for a 30-year sentence; he is estopped from
claiming on appeal that the trial court erred in honoring the terms of the negotiated plea agreement.
Id. (“To allow a defendant to use the exact ruling or action procured in the trial court as a vehicle
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2023 IL App (2d) 210605-Ufor reversal on appeal would offend all notions of fair play [citation], and encourage defendants to
become duplicitous”).
¶ 28 For the same reasons, defendant is estopped from bringing his claim that his sentences
violate the one-act, one-crime rule. Defendant contends that his conviction for attempt aggravated
discharge of a firearm should not have been entered because it was based on the same act as his
conviction for first degree murder. Again, to permit defendant to use the exact ruling or action
procured in the trial court as a vehicle for reversal on appeal would offend all notions of fair play.
Moore, 2021 IL App (2d) 200407, ¶ 33. Furthermore, convictions with concurrent sentences can
be entered in this case because attempt aggravated discharge of a firearm is not, by definition, a
lesser included offense. People v King, 66 Ill. 2d 551, 566 (1977). The elements of the two offenses
are different—first degree murder does not require use of a firearm. Were it otherwise, there could
be no punishment for gun use.
¶ 29 Finally, defendant’s claim that, “as a near juvenile,” his sentence of 100% time is
unconstitutional is also estopped by the doctrine of invited error and acquiescence. Moore, 2021
IL App (2d) 200407, ¶ 33. We additionally note that defendant, who was 19 years old when he
committed the instant offense, cites no authority for the proposition that a 30-year negotiated
sentence is unconstitutional due to his age. Instead, he cites inapt Supreme Court cases holding
that sentencing a person who was under 18 when he offended to mandatory life without parole
violates the eighth amendment. See Miller v. Alabama, 567 U.S. 460, 470 (2012). Accord
Montgomery v. Louisiana, 577 U.S. 190, 212 (2016). This court has consistently held that the
Supreme Court created “a bright-line rule limiting its holding to those who were under 18 years
old when they offended.” People v Mauricio, 2021 Il App (2d) 190619, ¶ 20; People v. Hoover,
2019 Il App (2d) 170070 (“Miller simply does not apply to a sentence imposed on one who was at
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2023 IL App (2d) 210605-Uleast 18 at the time of his offense”); People v. LaPointe, 2018 IL App (2d) 160903, ¶ 37 (reiterating
that Miller created a bright-line rule.) Because defendant was over 18 and not sentenced to
mandatory life without parole, the cases he cites have no precedential value here.
¶ 30 Defendant has failed to make a substantial showing of a constitutional violation, and,
accordingly, we affirm the dismissal of his amended postconviction petition.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.
¶ 33 Affirmed.
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