People v. Morris ( 2021 )

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).
2021 IL App (3d) 190081-UOrder filed October 5, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0081
v. ) Circuit No. 08-CF-2120
)
FERLIMO L. MORRIS, ) Honorable
) Sarah-Marie F. Jones,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the judgment of the court.
Justice Daugherity concurred in the judgment.
Justice Schmidt dissented.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred by denying defendant’s amended postconviction petition at
the second stage of proceedings where the petition alleged that trial counsel and
appellate counsel provided ineffective assistance by failing to argue that
defendant’s convictions should be reversed because a juror, who had been
excused for cause during voir dire, was nonetheless seated on the jury,
participated in deliberations, and signed the verdict forms.
¶2 Defendant, Ferlimo L. Morris, appeals his conviction for aggravated criminal sexual
assault. Defendant argues the Will County circuit court erred by denying his amended
postconviction petition at the second stage of postconviction proceedings where his petition
made a substantial showing that (1) trial counsel and appellate counsel provided ineffective
assistance by failing to argue that defendant’s conviction should be reversed because a juror,
who had been excused for cause during voir dire, was seated on the jury, participated in
deliberations, and signed the verdict forms, and that (2) appellate counsel provided ineffective
assistance for failing to argue that defendant’s conviction was based on an improper double
enhancement. We reverse and remand.
¶3 I. BACKGROUND
¶4 On September 3, 2008, the State charged defendant with aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(4) (West 2008)), criminal sexual assault (id. § 12-13(a)(1)), and
unlawful restraint (id. § 10-3(a)).
¶5 During voir dire, the court asked the potential jurors whether the nature of the charges
brought against defendant would impact their ability to be fair and impartial. Potential juror
Richard Schrishuhn answered, “I believe yes.” The court followed up, asking, “It may affect you
based on the nature of the charges?” Schrishuhn replied, “Yes.” Three other potential jurors
responded similarly. Defense counsel asked that the court remove Schrishuhn and the other three
potential jurors for cause. The court granted the request, saying, “On each of those four
individuals ***, defense motion for cause is granted, State raising no objection.” However, the
record shows that Schrishuhn subsequently sat on the jury, participated in deliberations, and
signed the final verdict forms that found defendant guilty of the charged offenses.
¶6 The court sentenced defendant to 60 years’ imprisonment for aggravated criminal sexual
assault, 30 years’ imprisonment for criminal sexual assault, and 6 years’ imprisonment for
unlawful restraint, to be served concurrently.
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¶7 On October 28, 2011, on direct appeal, we vacated defendant’s convictions for criminal
sexual assault and unlawful restraint for violating the one-act, one-crime doctrine, but otherwise
affirmed the circuit court’s judgment. People v. Morris, 2011 IL App (3d) 100096-U, ¶¶ 21, 26.
¶8 On March 14, 2012, defendant, as a self-represented litigant, filed a postconviction
petition, alleging that appellate counsel was ineffective for failing to argue on direct appeal that
defendant’s aggravated criminal sexual assault conviction should be reversed because
Schrishuhn participated in jury deliberations and signed the verdict forms, even though the court
previously excused him for cause. Defendant also alleged that appellate counsel was ineffective
for failing to argue on direct appeal that the aggravated criminal sexual assault conviction was
based on an improper double enhancement. The circuit court dismissed the petition, finding it
patently without merit.
¶9 On December 4, 2013, we held that defendant’s postconviction petition presented the gist
of a constitutional claim and remanded the cause for second-stage postconviction proceedings
(725 ILCS 5/122-1 et seq. (West 2012)). People v. Morris, 2013 IL App (3d) 120464-U, ¶¶ 17-
18.
¶ 10 On September 30, 2015, defendant filed an amended postconviction petition alleging,
inter alia, that trial counsel and appellate counsel were ineffective for failing to argue that
Schrishuhn wrongly served on the jury, partook in deliberations, and signed the verdict forms,
and that appellate counsel was ineffective for failing to argue the aggravated criminal sexual
assault conviction was based on an improper double enhancement. The circuit court denied the
amended petition, finding defendant failed to make a substantial showing that his constitutional
rights were violated. Defendant appeals.
¶ 11 II. ANALYSIS
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¶ 12 Defendant argues the circuit court erred in dismissing his amended postconviction
petition, which alleged that (1) trial counsel and appellate counsel provided ineffective assistance
by failing to argue that defendant’s conviction should be reversed because Schrishuhn was seated
on the jury, participated in deliberations, and signed the verdict forms after the circuit court
previously excused him for cause, and that (2) appellate counsel was ineffective for failing to
argue that defendant’s conviction was the result of an improper double enhancement. We agree
with defendant’s first argument and reverse his conviction and remand for a new trial. We do not
reach defendant’s second argument.
¶ 13 The Post-Conviction Hearing Act (Act) provides a three-stage process through which a
criminal defendant may challenge the substantial denial of his constitutional rights during the
proceedings that led to his conviction. 725 ILCS 5/122-1(a)(1) (West 2012); People v. Edwards,
197 Ill. 2d 239, 243-44 (2001). At the first stage, the court shall dismiss a postconviction petition
if it “is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012); Edwards,
197 Ill. 2d at 244. “During the second stage, the petitioner bears the burden of making a
substantial showing of a constitutional violation.” People v. Domagala, 2013 IL 113688, ¶ 35.
However, the court rules only on the legal sufficiency of the petition’s allegations; it does not
resolve evidentiary questions at this stage. Id. “If the petitioner makes the requisite substantial
showing that his constitutional rights were violated, he is entitled to a third stage evidentiary
hearing.” Id. ¶ 34. “The dismissal of a postconviction petition is warranted at the second stage of
the proceedings only when the allegations in the petition, liberally construed in light of the trial
record, fail to make a substantial showing of a constitutional violation.” People v. Hall, 217 Ill.
2d 324, 334 (2005). “At that stage, all factual allegations that are not positively rebutted by the
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record are accepted as true.” Id. We review de novo the dismissal of a postconviction petition
without an evidentiary hearing. Id.¶ 14 When considering a defendant’s ineffective assistance of counsel claim, we utilize the
two-prong test laid out in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 209
Ill. 2d 194, 219 (2004). This test also applies to ineffective assistance of appellate counsel
claims. People v. Johnson, 205 Ill. 2d 381, 405 (2002). “A defendant who claims that appellate
counsel was ineffective must show that the failure to raise an issue on appeal was objectively
unreasonable and this decision prejudiced the defendant.” Id. at 405-06. “More specifically, a
defendant must show that counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” People v.
Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland, 466 U.S. at 694).
¶ 15 In People v. Babbington, 286 Ill. App. 3d 724, 731 (1997), prior to jury deliberations, the
circuit court dismissed the three alternate jurors and informed them they would not be
deliberating with the jury because the regular jurors were healthy and able to stay through the
trial. Id. However, the record showed that one of the excused alternate jurors signed the verdict
forms, while one of the regular jurors did not. Id. at 731-32. When the circuit court polled the
jury, the trial transcript showed that 13 jurors orally assented to the verdict—the 12 regular jurors
and the excused alternate juror who signed the verdict forms. Id. at 732. On appeal, the First
District held that the excused alternate juror’s participation in deliberations denied the defendant
a fair trial. Id. at 733-34. In so holding, the court determined, “[I]t is clear that [the excused
alternate juror] participated in the deliberations since she signed the verdict forms and responded
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to the judge’s polling. We, therefore, cannot say that her presence had no impact on the jury’s
verdict.” Id. at 735.
¶ 16 The same is true here, as Schrishuhn clearly participated in jury deliberations, as
demonstrated by his signature on all three verdict forms, despite the fact that the court removed
him for cause during voir dire for saying that the offenses charged may impact his ability to
remain a fair and impartial juror. Because Schrishuhn participated in jury deliberations, we
cannot say his presence had no impact on the verdict. See id. Thus, defendant was denied his
right to a fair trial.
¶ 17 The State argues Babbington is distinguishable from the instant case because defendant
was tried by 12 jurors, there was no evidence of confusion regarding which jurors should render
a verdict, and all the jurors stated they would be fair, listen to the evidence and arguments
presented, and apply the jury instructions to the facts of the case. While the State’s assertions
regarding the number of jurors who deliberated in the instant case and the lack of confusion
regarding which jurors deliberated are correct, these distinctions have no bearing on the fact that
Schrishuhn—who was excused for cause during voir dire after indicating that he could not be a
fair and impartial juror due to the charges brought against defendant—participated in jury
deliberations and signed the verdict forms, just as the Babbington alternate juror engaged in
deliberations and signed the verdict forms after being excused. See Babbington, 286 Ill. App. 3d
at 733. Additionally, the State’s contention that the jurors said they would be fair, listen to the
evidence and arguments, and apply the jury instructions to the facts ignores the very exchange
that led to Schrishuhn’s dismissal. During voir dire, the court asked the potential jurors, “Is there
anything about the nature of any of the charges or this particular charge that would affect your
ability to be a fair and *** impartial juror?” To this, Schrishuhn answered, “I believe yes.” The
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court then asked, “It may affect you based on the nature of the charges?” Schrishuhn replied,
“Yes.” This interaction demonstrably refutes the presumption that Schrishuhn acted as an
unbiased juror when he participated in deliberations and signed the verdict forms.
¶ 18 The State argues that this case is more analogous to People v. Metcalfe, 202 Ill. 2d 544,
548-50 (2002), where a potential juror, who stated during voir dire that her previous experience
as a witness and victim in a criminal case impacted her ability to be a fair juror, was seated on
the jury because defense counsel failed to have her removed. Our supreme court held that the
circuit court had no obligation to remove the juror sua sponte, and that there was “absolutely no
evidence that [the juror’s] bias against the system was directed at defendant and not the State,”
such that they could not say the result would have been different absent the juror in question. Id.
at 562-63.
¶ 19 Here, we know the challenged juror’s bias was directed at defendant because Schrishuhn
said that the nature of the charges against defendant may prevent him from being fair and
impartial. Further, unlike in Metcalfe, defense counsel did move to have Schrishuhn excused,
and the court granted the motion, removing Schrishuhn and three other potential jurors with
similar biases. Thus, Metcalfe is distinguishable, as the Metcalfe juror was neither challenged by
counsel nor removed by the court prior to being seated on the jury and participating in
deliberations.
¶ 20 Defendant received ineffective assistance of trial and appellate counsel, as both failed to
raise this issue in the respective proceedings. Under the prevailing professional norms, both
attorneys provided objectively unreasonable performance in failing to challenge Schrishuhn’s
continued jury service, participation in deliberations, and signing of the verdict forms. See
Cathey, 2012 IL 111746, ¶ 23. This error was especially damaging as it affected defendant’s
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constitutional right to a fair trial. Furthermore, defendant suffered prejudice from the failure of
both attorneys to raise this issue. Trial counsel’s failure to object to this issue subjected
defendant to a biased jury and caused him to forfeit this issue for appellate review. See People v.
Enoch, 122 Ill. 2d 176, 186 (1988). Appellate counsel’s failure to raise this issue on direct
appeal, even if it was forfeited and subject to plain error review, caused defendant prejudice as
there was a reasonable probability that this court would have reversed defendant’s conviction
and remanded for a new trial.
¶ 21 We conclude that defendant has made a substantial showing of a violation of his
constitutional right to the effective assistance of trial and appellate counsel, such that his
amended successive petition should be advanced to the third stage of proceedings. See Hall, 217
Ill. 2d at 334; Johnson, 205 Ill. 2d at 405. However, the nature of defendant’s claim requires no
substantial fact-finding or credibility determinations, which is third-stage evidentiary hearing’s
purpose. See People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The record clearly shows that
Schrishuhn admitted that the nature of the charges brought against defendant might negatively
impact his ability to be an impartial juror and the court granted defense counsel’s motion to
excuse him for cause, but Schrishuhn was nonetheless seated on the jury, participated in
deliberations, and signed the final verdict forms. From these facts we know that defendant was
denied a fair trial, as the jury that convicted him included an individual who previously
confessed bias against defendant and was removed for cause during voir dire. Accordingly,
third-stage proceedings are unnecessary, and we reverse defendant’s conviction and remand for a
new trial.
¶ 22 We reject the dissent’s suggestions that our conclusion relies on facts not in the record
and inferences that do not flow from the evidence. The conclusions stated above derive from
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defendant’s second-stage postconviction petition and our independent review of the record. The
dissent seems to overlook the requirement that we must accept all facts alleged in the second-
stage petition as true, unless rebutted by the record. Hall, 217 Ill. 2d at 334. We reiterate,
defendant’s petition alleged that Schrishuhn, who as a potential juror expressed concern that he
could not be fair and impartial and was removed for cause, somehow went unnoticed after his
excusal and served on the jury. These facts are not only not rebutted by the record but are so
conclusively established by the record that they justify granting postconviction relief without
need for a third-stage evidentiary hearing. Supra ¶ 21.
¶ 23 The dissent more specifically suggests that defendant cannot establish prejudice sufficient
for a finding of ineffective assistance of counsel because Schrishuhn’s statement failed to
unequivocally demonstrate bias against defendant because he could have been biased against the
State. At best, Schrishuhn’s statement of impartiality was ambiguous. However, the nature of
Schrishuhn’s bias is immaterial because any juror bias is a constitutional problem. U.S. Const.,
amend. XIV; Ill. Const. 1970, art. I, § 2; see also People v. Eckert, 194 Ill. App. 3d 667, 673
(1990) (a defendant’s right to an unbiased, open-minded trier of fact is rooted in the
constitutional guaranty of due process of law and entitles a defendant to a fair and impartial
trial). The constitution requires that a defendant be tried before an impartial and unbiased jury,
that is, one “capable and willing to decide the case solely on the evidence before it.” Smith v.
Phillips, 455 U.S. 209, 217 (1982). Our supreme court explains “Trial before a biased tribunal
would deprive defendant of a substantial right and constitute structural error requiring reversal.”
People v. Runge, 234 Ill. 2d 68, 102 (2009); see also People v. Glasper, 234 Ill. 2d 173, 200-01
(2009). Contrary to the dissent’s argument, we cannot confidently say that the jury solely
decided the case on the evidence before it because a juror, who had been excused for cause due
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to a statement acknowledging partiality, participated in deliberations and signed the verdict
forms. If this issue had been raised in defendant’s direct appeal, it would have been subject to
automatic reversal because it is a structural error. See People v. Thompson, 238 Ill. 2d 598, 608
(2010) (“Structural errors are systemic, serving to erode the integrity of the judicial process and
undermine the fairness of the defendant’s trial.”) (Internal quotation marks omitted.); People v.
Rivera, 227 Ill. 2d 1, 20 (2007) (holding a trial before a biased tribunal would constitute a
structural error). Therefore, the same error, raised in the context of a postconviction claim of
ineffective assistance of trial counsel, more than satisfies the prejudice requirement of the
Strickland analysis.
¶ 24 III. CONCLUSION
¶ 25 The judgment of the circuit court of Will County is reversed and remanded.
¶ 26 Reversed and remanded.
¶ 27 JUSTICE SCHMIDT, dissenting:
¶ 28 The majority assumes facts not in the record and draws inferences that do not necessarily
flow from the evidence. Based on these erroneous findings, the majority contravenes the Post-
Conviction Hearing Act, taking it upon itself to grant defendant a new trial. Accordingly, I dissent.
¶ 29 Defendant raises his claim in the context of ineffective assistance of counsel. It is a
common refrain that to establish such a claim requires a showing of deficient performance and
prejudice. Defendant has failed to establish the latter.
¶ 30 My colleagues find prejudice in this matter, stating that it is presumptively clear that the
juror’s statements indicate a bias against defendant. See supra ¶ 19 (“Here, we know the
challenged juror’s bias was directed at defendant because Schrishuhn said that the nature of the
charges against defendant may prevent him from being fair and impartial.”). Absent clairvoyance,
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the juror’s statement that he was unable to remain impartial based on the nature of the charges fails
to unequivocally demonstrate bias against defendant. See Metcalfe, 202 Ill. 2d at 562-63 (noting
there was “absolutely no evidence that [the juror’s] bias against the system was directed at
defendant and not the State” and consequently the court could not find the result of the proceedings
would have been different absent the juror). Similar to Metcalfe, there is no evidence here
demonstrating which side the juror harbored bias against. Contrary to the majority’s assertion, the
juror may have had a life experience where the nature of these charges actually biased him against
the State. In that scenario, common sense dictates defendant was not prejudiced.
¶ 31 Moreover, the State is correct that Babbington is distinguishable from the instant case. Had
defendant contended that he was denied a fair trial as in Babbington, a finding that defendant
waived that argument would be the inevitable end result. See People v. Escobedo, 151 Ill. App. 3d
69 (1986) (finding that by failing to recognize and call the court’s attention to juror who was
challenged and removed during voir dire, defendant waived issue for purposes of appeal); People
v. Patterson, 163 Ill. App. 3d 370 (1987) (finding defendant waived challenge to participation of
excused juror by not objecting during trial or in a posttrial motion). Babbington does not stand for
the proposition of presuming prejudice in an ineffective assistance of counsel claim.
¶ 32 In response to this dissent, the majority opines that “the nature of Schrishuhn’s bias is
immaterial because any juror bias is a constitutional problem.” Supra ¶ 23. The majority goes on
to state that if defendant had simply framed the issue as a violation of his constitutional right to an
impartial jury on direct appeal, the result would have been a reversal due to the structural error.
See supra ¶ 23. Unfortunately for defendant this is not his direct appeal. He failed to properly
preserve the “constitutional problem” that the majority now conflates with the prejudice prong of
his ineffective assistance of counsel claim.
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¶ 33 As explained above, defendant is likely aware the argument regarding Schrishuhn
participating in his trial has been waived absent the context of an ineffective assistance of counsel
claim. See supra ¶ 31. The prejudice prong of the claim he actually presents to this court requires
a defendant to show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Removing a juror that harbored bias against the State would not change the result of the
proceedings.
¶ 34 Just as in Weaver v. Massachusetts, 582 U.S. ____, ____, 137 S. Ct. 1899, 1910-11 (2017),
we should decline to presume “Strickland prejudice” where defendant failed to preserve a
structural error for direct review, instead, raising the error later in a collateral proceeding in the
context of ineffective assistance of counsel. Rather, the majority adopts the position advanced by
the dissent in Weaver, eviscerating the prejudice prong of the ineffective assistance of counsel
claim in the presence of an unpreserved structural error, (Id. at ____, 137 S. Ct. at 1916 (Breyer,
J., dissenting, joined by Kagan, J.)) and casting aside the Court’s admonishment that “the rules
governing ineffective-assistance claims ‘must be applied with scrupulous care.’ ” Id. at ____, 137
S. Ct. at 1912 (quoting Premo v. Moore, 562 U.S. 115, 122 (2011)).
¶ 35 Since I lack the majority’s obvious clairvoyance, I would remand this matter for a third-
stage proceeding to develop a record as to where the juror’s bias actually lies.
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