People v. Jake ( 2019 )

NOTICE FILED
This order was filed under Supreme
Court Rule 23 and may not be cited 2019 IL App (4th) 170293-U October 23, 2019
as precedent by any party except in Carla Bender
the limited circumstances allowed NO. 4-17-0293 4th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
TRESHAUN M. JAKE, ) No. 12CF1318
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
PRESIDING JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices DeArmond and Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding postconviction counsel complied with
Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), thus rendering reasonable
assistance of counsel.
¶2 In September 2016, defendant filed a pro se postconviction petition, raising
claims of ineffective assistance of trial counsel where counsel failed to (1) impeach a witness
with her prior inconsistent statement, (2) object to prejudicial hearsay statements, (3) tender a
jury instruction regarding a witness's prior inconsistent statement, and (4) file a motion to quash
arrest and suppress statement. The trial court advanced defendant's petition to the second stage
proceedings and appointed counsel to represent defendant.
¶3 In December 2016, appointed counsel filed an amended petition for
postconviction relief, alleging ineffective assistance of trial counsel where counsel failed to
(1) impeach a witness with her prior inconsistent statements and (2) object to a witness's
testimony at trial. In addition, postconviction counsel identified issues lacking merit from
defendant's pro se petition that he chose not to raise in the amended petition and explained why
he omitted the issues. Counsel did file a Rule 651(c) certificate. The State filed an answer, and
the amended petition proceeded to an April 2017 evidentiary hearing. After hearing the evidence
relevant to the claims in defendant's amended petition, the trial court denied the postconviction
petition.
¶4 On appeal, defendant argues he was denied reasonable assistance of
postconviction counsel, where counsel failed to (1) sufficiently consult with defendant to
ascertain his contentions and (2) amend defendant's pro se postconviction petition to present
defendant's claim that trial counsel was ineffective for failing to file a motion to quash
defendant's illegal arrest and suppress his July 4, 2012, statement to police. We affirm.
¶5 I. BACKGROUND
¶6 A. Trial Court Proceedings
¶7 In August 2012, the State charged defendant with three counts of first degree
murder arising from the death of Desirae Austin. Count I alleged felony murder, asserting
defendant, or one for whose conduct he was legally responsible, while committing the forcible
felony of mob action and armed with a firearm, knowingly and by the use of force disturbed the
public peace by discharging a firearm in the direction of Johnnie Campbell and Rajon Campbell,
thereby causing the death of Desirae (720 ILCS 5/9-1(a)(3) (West 2010)). Count II alleged
defendant, without lawful justification and with the intent to kill or do great bodily harm to
Desirae or another, discharged a firearm in Desirae's direction, thereby causing her death (720
ILCS 5/9-1(a)(1) (West 2010)). Count III alleged defendant, without lawful justification,
discharged a firearm in the direction of Desirae or another, knowing that act created a strong
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probability of death or great bodily harm, thereby causing Desirae's death (720 ILCS 5/9-1(a)(2)
(West 2010)).
¶8 The case proceeded to an October 2013 jury trial. We summarize only the
evidence necessary for disposition of this appeal.
¶9 On July 4, 2012, an altercation broke out near the dimly lit intersection of
Cruising Lane and Thornton Drive in Champaign, Illinois. The altercation occurred shortly after
10 p.m., following a nearby fireworks display, as the crowd dispersed from the festivities.
¶ 10 Johnnie Campbell testified that on the evening in question, he argued with
Antwan Anderson and Phil Myrick in front of 1605 Cruising Lane. Upon realizing the argument
was escalating to a physical confrontation, Johnnie briefly left the scene and enlisted the aid of
his brother, Rajon Campbell. Upon his return, Johnnie testified he observed an unspecified
number of individuals coming around the corner carrying guns. One of those individuals,
defendant, joined Phil and Antwan. According to Johnnie, defendant, Phil, and Antwan all held
guns. At this time, the streets were crowded with dozens of people. Johnnie testified that
someone began shooting, at which time he and Rajon ran. Tiffany Dishman, who was watching
the altercation, observed defendant shoot his gun in the air. Tiffany said, at the urging of the
crowd, defendant then leveled his gun at Johnnie and Rajon and started firing.
¶ 11 Ranece Fondia, who lived at 1605 Cruising Lane, observed defendant firing into
the crowd. She knew the shots came from defendant's gun because she saw the flash with each
shot. She then retreated inside her house. On cross-examination, Ranece testified she
recognized defendant because she had known him for a long time and denied telling police she
only later learned the shooter was defendant. Howard Britt Jr., who lived at 1608 Cruising Lane,
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testified defendant was among the "bunch of boys" involved in the altercation. Britt also noted
the darkness made it difficult to see.
¶ 12 When the gunfire ended, Desirae was lying in the middle of the street with a fatal
gunshot wound to the chest. While Tiffany attempted to help Desirae, Anthony Meads walked
down the street and twice fired a shotgun into the air. Ranece returned to her porch and
overheard an exchange between Antwan and defendant. She testified she overheard Antwan say,
"you shot that girl" and defendant responded, "I don't give a f***."
¶ 13 While conducting the investigation, officers discovered numerous shell casings
near 1607 Cruising Lane, including casings from a .9-millimeter Luger, a shotgun, a .40-caliber
gun, and a .45-caliber gun. Defendant and Anthony were standing in the driveway at the time
police discovered the shell casings, causing the officers to take defendant into custody for further
questioning. Anthony had a .45-caliber handgun on his person, which was later determined to be
the gun that fired the fatal shot. At the time of his arrest, defendant possessed no weapons,
bullets, or other items of evidentiary value. No forensic evidence—fingerprints, gunshot residue,
or deoxyribonucleic acid—demonstrated defendant or Anthony fired the .45-caliber handgun.
¶ 14 In an interview defendant gave to police on July 4, 2012, defendant stated he was
walking with his girlfriend, Khdijah, to meet her mother at the time the shooting occurred. He
said he arrived at his friend Antwan's house, 1607 Cruising Lane, to discover police on the scene
conducting an investigation. He told police he was not involved in any altercations or shootings
that evening. Police had difficulty locating any eyewitnesses the night of the shooting; rather,
most witnesses were located later in the investigative process. As a result, police released
defendant after questioning him on July 4, 2012. They rearrested defendant in August 2012 after
investigators obtained additional information.
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¶ 15 Defendant reiterated his July 4, 2012, statement during two August 2012
interviews. Additionally, Shalonda Foreman, Khdijah's mother, testified she was on the phone
with defendant and Khdijah from approximately 10 p.m. until 10:40 p.m. as they provided
directions to help her navigate her car through the crowded streets to their location. According
to Shalonda, she then picked defendant and Khdijah up and, shortly thereafter, dropped
defendant off at an alley.
¶ 16 At the close of evidence, the jury found defendant guilty of first degree murder.
The trial court sentenced defendant to 65 years' imprisonment.
¶ 17 On direct appeal, defendant argued (1) defense counsel provided ineffective
assistance of counsel where counsel failed to (i) file a motion to quash defendant's July 4, 2012,
arrest and suppress statements arising from that arrest; (ii) object to prejudicial hearsay
statements; (iii) perfect impeachment of the State's witnesses; and (iv) tender a jury instruction
regarding witnesses' prior inconsistent statements, and (2) his 65-year sentence was excessive.
In January 2016, this court affirmed defendant's conviction and sentence, finding that the
ineffective assistance of counsel claims "would best be addressed in a collateral proceeding
rather than on direct appeal." People v. Jake, 2016 IL App (4th) 140124-U, ¶ 44.
¶ 18 B. Postconviction Proceedings
¶ 19 In September 2016, defendant filed a pro se postconviction petition, raising
claims of ineffective assistance of trial counsel where counsel failed to (1) impeach Ranece with
her prior inconsistent statement, (2) object to prejudicial hearsay statements, (3) tender a jury
instruction regarding Ranece's prior inconsistent statement, and (4) file a motion to quash arrest
and suppress defendant's statement. Subsequently, the trial court advanced defendant's petition
to second stage proceedings and appointed counsel to represent defendant.
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¶ 20 In December 2016, appointed counsel filed an amended petition for
postconviction relief, alleging ineffective assistance of trial counsel where counsel failed to
(1) impeach Ranece with her prior inconsistent statement and (2) object to Ranece's testimony at
trial. Postconviction counsel also identified those issues from defendant's pro se petition that he
chose not to raise in the amended petition for lack of merit and included reasoning for omitting
the issues. Specifically, counsel declined to raise a claim of ineffective assistance of trial
counsel for failing to file a motion to quash and suppress statements made during defendant's
interviews with police, because defendant maintained in every statement that he was not present
for the shooting. Counsel stated that keeping defendant's statements in evidence was simply part
of trial strategy, where the statements bolstered defendant's alibi defense. Counsel also filed a
Rule 651(c) certificate.
¶ 21 The State filed an answer, and the amended petition proceeded to an April 2017
evidentiary hearing. After hearing the evidence relevant to the claims in defendant's amended
petition, the trial court denied the postconviction petition, finding that Ranece knew defendant
and his family but had simply gotten their names mixed up.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant argues he was denied reasonable assistance of
postconviction counsel, where counsel failed to (1) sufficiently consult with defendant to
ascertain his contentions and (2) amend defendant's pro se postconviction petition to present
defendant's claim that trial counsel was ineffective for failing to file a motion to quash
defendant's illegal arrest and suppress his July 4, 2012, statement to police. The State maintains
that postconviction counsel provided defendant with reasonable assistance where counsel
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consulted with defendant and declined to raise a claim of ineffective assistance of trial counsel
for failing to quash arrest and suppress statements where the claim lacked merit. We agree with
the State and affirm.
¶ 25 The right to counsel in postconviction proceedings is wholly statutory, and
petitioners are only entitled to the level of assistance provided for in the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2016)). People v. Suarez, 224 Ill. 2d 37, 42, 862
N.E.2d 977, 979 (2007) (citing People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d 725, 727-28
(1999)). "The Act provides for a reasonable level of assistance." Id. (citing People v. Flores,
153 Ill. 2d 264, 276, 606 N.E.2d 1078, 1084 (1992)).
¶ 26 In order to assure a reasonable level of assistance, Illinois Supreme Court Rule
651(c) requires that postconviction counsel (1) consult with petitioner by phone, mail, electronic
means or in person to ascertain his or her contentions of deprivation of constitutional rights,
(2) examine the record of the proceedings at the trial, and (3) make any amendments necessary to
the pro se petition to adequately present petitioner's contentions. Ill. S. Ct. R. 651(c) (eff. July 1,
2017). Rule 651(c) "does not require counsel to advance frivolous or spurious claims on
defendant's behalf." People v. Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999, 1007 (2006);
People v. Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511, 519 (2004).
¶ 27 Here, appointed counsel filed a certificate pursuant to Rule 651(c) (eff. July 1,
2017). "The filing of a facially valid Rule 651(c) certificate creates a rebuttable presumption that
counsel acted reasonably and complied with the rule." People v. Wallace, 2016 IL App (1st)
142758, ¶ 25, 67 N.E.3d 976. "It is defendant's burden to overcome this presumption ***."
People v. Profit, 2012 IL App (1st) 101307, ¶ 19, 974 N.E.2d 813. On appeal, we review an
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attorney's compliance with Rule 651(c) de novo. People v. Blanchard, 2015 IL App (1st)
132281, ¶ 15, 43 N.E.3d 1077.
¶ 28 Defendant acknowledges postconviction counsel filed a Rule 651(c) certificate
and is therefore presumed to have provided reasonable assistance. However, defendant argues
the record rebuts this presumption because it shows postconviction counsel failed to (1) consult
with him enough to understand that his ineffective assistance claim quashing arrest and seeking
suppression of statements pertained only to defendant's July 4, 2012, statement to police, not
subsequent statements to police and (2) amend defendant's pro se postconviction petition to
include defendant's claim that trial counsel was ineffective for failing to file a motion to quash
defendant's illegal arrest and suppress his July 4, 2012, statement to police.
¶ 29 We disagree with defendant's assertion that postconviction counsel violated Rule
651(c) by filing a deficient amended postconviction petition. The record does not indicate that
postconviction counsel's representation was either inadequate or unreasonable.
¶ 30 Upon review of the amended petition, postconviction counsel provided the trial
court with a thoughtful analysis of the potential claims, both the claims counsel raised and the
claims counsel deemed lacked merit. Defendant argues postconviction counsel argued against
his interests where counsel included issues not raised in the amended petition and provided
reasoning for omitting the issues. Under People v. Kuehner, 2015 IL 117695, 32 N.E.3d 655,
counsel was not required to provide reasoning for each omitted claim in his amended
postconviction petition. Kuehner only requires an explanation of claims that lack merit where an
attorney is moving to withdraw. Id. ¶¶ 15-16. While counsel was not moving to withdraw, we
do not find postconviction counsel's inclusion of the omitted claims with reasoning in his
amended postconviction petition resulted in unreasonable assistance by counsel.
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¶ 31 Postconviction counsel declined to raise a claim of ineffective assistance of trial
counsel for failing to file a motion to quash and suppress statements made during defendant's
interviews with police because defendant maintained in all his statements to police that he was
not present during the shooting. The fact that postconviction counsel referred to all of
defendant's statements to police in his analysis of the issue and not just defendant's July 4, 2012,
statement to police does not indicate counsel failed to consult with defendant sufficiently enough
to understand his allegations of error.
¶ 32 The decision not to suppress defendant's July 4, 2012, statement to police was
entirely within trial counsel's sound discretion and trial strategy. Even assuming arguendo that
the police illegally elicited defendant's July 4 statement, all of defendant's statements to police
were entirely exculpatory and presented an alibi that was consistent with the defendant's theory
of the case presented at trial. Moreover, defendant's July 4, 2012, statement closely mirrors the
testimony provided by Shalonda Foreman. Suppressing defendant's July 4, 2012, statement does
nothing to remove Foreman's testimony before the jury. Therefore, trial counsel's failure to
suppress defendant's July 4 statement to police failed to prejudice defendant. Furthermore, at
trial, the State presented overwhelming evidence of defendant's guilt. See People v. Nash, 27 Ill.
App. 3d 462, 462, 326 N.E.2d 566, 568 (1975).
¶ 33 Postconviction counsel also was under no obligation to include all of defendant's
allegations in his amended petition. See Ill. S. Ct. R. 651(c) (eff. July 1, 2017) (Postconviction
counsel is not required to raise every argument made by defendant but rather provide reasonable
representation by making necessary amendments that adequately present defendant's
contentions). Counsel is not required to advance frivolous claims on defendant's behalf. See
Pendleton, 223 Ill. 2d at 472. Here, postconviction counsel determined trial counsel's decision
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not to suppress defendant's July 4, 2012, statement to police was reasonable trial strategy, thus
postconviction counsel properly declined to raise defendant's ineffective assistance claim on
appeal for lack of merit. Therefore, postconviction counsel amended defendant's petition to
include only the issues he could adequately present. As noted above, the filing of a facially valid
Rule 651(c) certificate creates a rebuttable presumption that counsel acted reasonably.
¶ 34 Defendant failed to prove postconviction counsel provided unreasonable
assistance where his allegations are devoid of facts to support the existence of a Rule 651(c)
violation. Because defendant failed to overcome this presumption, we find no Rule 651(c)
violation occurred and counsel rendered reasonable assistance during postconviction
proceedings. Accordingly, we affirm the trial court's judgment.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court's judgment.
¶ 37 Affirmed.
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