People v. Parker ( 2019 )

NOTICE
This order was filed under Supreme FILED
Court Rule 23 and may not be cited
2019 IL App (4th) 170123-U December 31, 2019
as precedent by any party except in Carla Bender
the limited circumstances allowed NO. 4-17-0123 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 the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
ROGER L. PARKER, ) No. 14CF131
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Holder White and Justice Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed the trial court’s summary dismissal of defendant’s
pro se postconviction petitions.
¶2 In September 2014, a jury convicted defendant, Roger L. Parker, of aggravated
battery (720 ILCS 5/12-3.05(c) (West 2012)), intimidation (id. § 12-6(a)(1)), and resisting a
peace officer (id. § 31-1(a)). The trial court sentenced defendant to 30 months’ probation. In
December 2014, the State filed a petition to revoke defendant’s probation. While the State’s
petition was pending, defendant filed a late notice of appeal, which this court allowed. In January
2015, the trial court granted the State’s petition and later resentenced defendant to a four-year
prison term for aggravated battery and a three-year term for intimidation. The court did not
resentence defendant on his resisting a peace officer conviction but discharged defendant
unsuccessfully from probation.
¶3 In October 2016, defendant pro se filed a petition for postconviction relief under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014)). In December
2016, defendant pro se filed an “amended” postconviction petition. In January 2017, the trial
court dismissed both of defendant’s petitions as frivolous and patently without merit.
¶4 In May 2017, during the pendency of this appeal, this court affirmed defendant’s
conviction and sentence on direct appeal. People v. Parker, 2017 IL App (4th) 141016-U, ¶ 2.
¶5 In this appeal, defendant argues the trial court erred in dismissing his pro se
postconviction petitions at the first stage of proceedings. For the following reasons, we affirm the
trial court’s judgment.
¶6 I. BACKGROUND
¶7 On February 28, 2014, the State charged defendant by information with
aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) (count I), intimidation (id. § 12-6(a)(1))
(count II), and resisting a peace officer (id. § 31-1(a)) (count III).
¶8 In September 2014, the case proceeded to a jury trial. Prior to trial, the parties
provided a combined witness list to the trial court, which included the names of Corey Thomas
and Angela Smith as potential witnesses. On the second day of trial, defense counsel indicated
that she did not plan to call Thomas or Smith to testify during defendant’s case-in-chief. Defense
counsel stated the following:
“One of the witnesses that I had on my list yesterday[, Corey Thomas,]
would not have had anything more to add than what the other two witnesses were
to testify to. And the other witness, Angela Smith: I interviewed her this morning
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by phone and determined that she didn’t have anything in addition to add that
would have been helpful to the defense.”
The jury found defendant guilty on all three counts. In October 2014, the trial court sentenced
defendant to 30 months’ probation.
¶9 On December 3, 2014, the State filed a petition to revoke defendant’s probation.
On December 9, 2014, while the State’s petition was pending, defendant filed a late notice of
appeal, which this court allowed. On January 26, 2015, the trial court found the State proved its
petition by a preponderance of the evidence and revoked defendant’s probation in absentia. On
March 12, 2015, the court resentenced defendant to a four-year prison term for aggravated
battery and three-year term for intimidation. The trial court determined defendant was also
unsuccessfully discharged from probation for the misdemeanor resisting a peace officer
conviction, but did not resentence defendant for that conviction.
¶ 10 On October 26, 2016, defendant pro se filed a postconviction petition. Defendant
alleged:
“[Defendant] was denied his right to the effective assistance of trial counsel where
defense counsel failed and refuse[d] to call as witnesses two people who could
have corroborated [defendant’s] innocence.
Four witnesses [were] subpoena[ed] on the behalf of my case to testify,
but only the two bad witnesses [were called] to testify as bad witnesses. My trial
attorney *** refuse[d] to call my important witnesses to testify at trial, to my
actual innocence.
***
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I have tried to obtain an affidavit from my witness[es], but have been
unable to do so because I am incarcerated and indigent and unable to locate
witness[es’] current address without assistance from the court.”
¶ 11 On December 16, 2016, defendant pro se filed an amended postconviction
petition. Defendant did not file a motion in the trial court seeking leave to amend his initial
petition. In the amended petition, defendant reiterated his claim of ineffective assistance of
counsel, stating, “[Defense counsel] was inad[e]quately prepared and unable to make a
reasonable decision not to explore Corey Thomas[’s] testimony, also Angela Smith’s possible
testimony or to explore an alternative defense that would be supported by th[ei]r testimony.”
Defendant attached an affidavit to the amended petition, which contained his signature, the
signature of a notary public, the notary public’s official seal, and a statement that the affidavit
was “[s]igned and sworn” before a notary public on December 12, 2016. In the affidavit,
defendant averred that “the following facts are true to the best of my belief or knowledge.”
¶ 12 On January 13, 2017, the trial court dismissed defendant’s amended petition as
frivolous and patently without merit because it was “not verified by affidavit as required by
statute.” The court further stated,
“The original [p]etition raises the issue of ineffective assistance of counsel
for failure to call certain witnesses. That issue could have been raised on direct
appeal. Since the appeal is still pending, that issue may currently be raised on
[a]ppeal. Further, the [p]etition does not include an [a]ffidavit, nor does it state
what the witnesses’ testimony would have been. As such, the [c]ourt cannot
evaluate the petitioner’s claim of ineffective assistance of counsel. For those
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reasons, the original [p]etition is frivolous and without merit, and is also
dismissed.”
¶ 13 This appeal followed. On May 18, 2017, while this appeal was pending, this court
affirmed the trial court’s judgment sentencing defendant to 30 months of probation and ordering
defendant to pay all court costs, fees, and penalties. Parker, 2017 IL App (4th) 141016-U, ¶ 2.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant argues the trial court erred in summarily dismissing his
postconviction petitions because he stated the gist of a constitutional claim of ineffective
assistance of trial counsel. Specifically, defendant argues trial counsel was ineffective when she
failed to call two witnesses, Corey Thomas and Angela Smith, to testify at defendant’s trial. The
State argues that defendant (1) does not have standing to request postconviction relief with
respect to his conviction for resisting a peace officer because he did not receive a sentence for
that conviction after he was unsuccessfully discharged from probation, (2) failed to state the gist
of a constitutional claim for ineffective assistance of counsel, and (3) failed to state a colorable
claim of actual innocence.
¶ 16 A. Proceedings Under the Act
¶ 17 The Act (725 ILCS 5/122-1 to 122-7 (West 2014)) “provides a three-stage process
for the adjudication of postconviction petitions.” People v. Harris, 224 Ill. 2d 115, 125, 862
N.E.2d 960, 967 (2007). “At the first stage of postconviction proceedings, the circuit court
reviews the petition and may summarily dismiss it if the court determines it is ‘frivolous or is
patently without merit.’ ” People v. Perkins, 229 Ill. 2d 34, 42, 890 N.E.2d 398, 402 (2007)
(quoting 725 ILCS 5/122-2.1(a)(2) (West 2002)). “A postconviction petition is frivolous or
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patently without merit when its allegations, taken as true and liberally construed, fail to present
the gist of a constitutional claim.” Harris, 224 Ill. 2d at 126.
¶ 18 If a petition survives the first stage of proceedings, it advances to the second stage
where counsel may be appointed and the State may file a responsive pleading. Harris, 224 Ill. 2d
at 126. “If at the second stage a substantial showing of a constitutional violation is established,
the petition proceeds to the third stage for an evidentiary hearing.” Id.¶ 19 “Proceedings under the Act are commenced by the filing of a petition in the
circuit court in which the original proceeding took place.” People v. Hodges, 234 Ill. 2d 1, 9, 912
N.E.2d 1204, 1208 (2009). Pursuant to section 122-1 of the Act, the petition must be verified by
affidavit. 725 ILCS 5/122-1(b) (West 2014). The purpose of the verification affidavit is to
confirm that the allegations were brought “truthfully and in good faith.” (Internal quotation
marks omitted.) People v. Allen, 2015 IL 113135, ¶ 27, 32 N.E.3d 615. A pro se petitioner’s
failure to attach a verification affidavit is not fatal at the first stage of proceedings, but rather
may be grounds for a motion to dismiss by the State at the second stage. Id.¶ 20 Additionally, section 122-2 of the Act (725 ILCS 5/122-2 (West 2012)) requires
that a postconviction petition “shall have attached thereto affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached.” The purpose of this
evidentiary requirement is to verify that the allegations in the petition are capable of objective or
independent corroboration. Allen, 2015 IL 113135, ¶ 26. A pro se petitioner’s “failure to either
attach the necessary affidavits, records, or other evidence or explain their absence is fatal to a
post-conviction petition [citation] and by itself justifies the petition’s summary dismissal.”
(Internal quotation marks omitted.) People v. Delton, 227 Ill. 2d 247, 255, 882 N.E.2d 516, 520
(2008).
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¶ 21 We review the trial court’s summary dismissal of a postconviction petition
de novo (People v. Tate, 2012 IL 112214, ¶ 10, 980 N.E.2d 110), and may affirm on any basis
supported by the record. People v. Stoecker, 384 Ill. App. 3d 289, 292, 892 N.E.2d 131, 134
(2008).
¶ 22 B. Ineffective Assistance of Counsel
¶ 23 Claims of ineffective assistance of counsel are guided by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires that a defendant show both that
counsel’s performance “ ‘fell below an objective standard of reasonableness’ ” and that the
deficient performance prejudiced the defense. Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466
U.S. at 687-88). “At the first stage of postconviction proceedings under the Act, a petition
alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s
performance fell below an objective standard of reasonableness and (ii) it is arguable that the
defendant was prejudiced.” Hodges, 234 Ill. 2d at 17. A defendant must satisfy both prongs, and
the failure to satisfy either precludes an argument defendant received ineffective assistance of
counsel. People v. Wilborn, 2011 IL App (1st) 092802, ¶ 76, 962 N.E.2d 528; Strickland, 466
U.S. at 697.
¶ 24 Generally, the decisions about which witnesses to call at trial and what evidence
to present are strategic ones. Wilborn, 2011 IL App (1st) 092802, ¶ 79. Matters of trial strategy
“are generally immune from claims of ineffective assistance of counsel.” Id. Furthermore,
“counsel’s decision to abandon a trial strategy during trial may be reasonable under the
circumstances,” and “the decision not to provide promised testimony may be warranted by
unexpected events.” Id. ¶ 80. Under the Act, a claim that counsel was ineffective for failing to
call a witness to testify at trial generally must be supported by an evidentiary affidavit from the
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proposed witness. People v. Johnson, 183 Ill. 2d 176, 192, 700 N.E.2d 996, 1004 (1998); People
v. Thompkins, 161 Ill. 2d 148, 163, 641 N.E.2d 371, 378 (1994). In the absence of such an
affidavit, a reviewing court cannot determine whether the proposed witness could have provided
testimony or information favorable to the defendant. Johnson, 183 Ill. 2d at 192; Thompkins, 161
Ill. 2d at 163.
¶ 25 C. This Case
¶ 26 First, we need not address the State’s argument that defendant lacks standing to
challenge his conviction for resisting a peace officer because defendant forfeited any challenge
to that conviction by failing to raise it in his initial or amended petitions. “[C]laims not raised in
a postconviction petition cannot be argued for the first time on appeal.” People v. Pendleton, 223
Ill. 2d 458, 470, 861 N.E.2d 999, 1006 (2006). In defendant’s initial and amended petitions, he
references only his convictions for aggravated battery and intimidation and fails to make any
reference to his conviction for resisting a peace officer. Furthermore, defendant’s notice of
appeal lists only “Aggravated Battery and Intimidation” after “Offense of which convicted.”
Accordingly, defendant has forfeited any claim challenging his conviction for resisting a peace
officer and we discuss below defendant’s claim of ineffective assistance of counsel only as it
relates to his convictions for aggravated battery and intimidation.
¶ 27 Here, the trial court erroneously dismissed defendant’s amended petition on the
basis that it was “not verified by affidavit as required by statute.” Defendant attached an affidavit
to his amended petition, averring that “the following facts are true to the best of my belief or
knowledge.” Even if we were to find defendant’s affidavit was somehow deficient, a pro se
petitioner’s failure to attach a proper verification affidavit cannot be the basis for the dismissal of
the petition at the first stage of proceedings. See Allen, 2015 IL 113135, ¶ 27.
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¶ 28 However, the trial court properly dismissed both of defendant’s petitions as
frivolous and patently without merit because it is not arguable defendant received ineffective
assistance of counsel. First, defendant does not show it is arguable he suffered prejudice. In the
petitions, defendant asserts trial counsel failed to call two witnesses, Thomas and Smith, who
would have provided exculpatory evidence if they had been called to testify at trial. Defendant
failed to attach affidavits or any other evidence from either witness to support this claim—a
failure which by itself would support the summary dismissal of his petitions. See Delton, 227 Ill.
2d at 255. Defendant states that he did not attach affidavits from either witness because, due to
his incarceration, he was unable to obtain their contact information. Even if we were to accept
defendant’s explanation as to why affidavits were not attached, defendant fails to specify what
these witnesses’ testimony would have been or how counsel’s failure to call them to testify
impacted the outcome at trial. Although defendant states both “that the [witnesses’] testimony
*** would be consistent with his theory of actual innocence,” and could have supported “an
alternative defense,” he does not explain the potential alternative defense and provides no basis
for his belief that either of these witnesses would have corroborated his own testimony at trial.
Defendant fails to provide a minimal amount of detail as to the factual basis for his claim of
ineffective assistance. See People v. Dupree, 2018 IL 122307, ¶ 37, 124 N.E.3d 908 (“[T]here
can be no substantial showing of ineffective assistance of counsel for failure to investigate or call
a witness if there is no evidence that the exculpatory evidence actually exists.”). Accordingly, it
is not arguable defendant suffered prejudice.
¶ 29 Furthermore, even if we were to assume defendant suffered prejudice as a result
of trial counsel’s failure to call Thomas and Smith as witnesses, it is also not arguable that trial
counsel’s performance fell below an objective standard of reasonableness. At defendant’s trial,
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counsel stated that she would not be calling Thomas or Smith, despite the fact they were on
defendant’s witness list, because she did not believe their testimony would provide any new or
helpful evidence for the defense. This decision constituted a trial strategy from which ineffective
assistance claims are ordinarily immune. See Wilborn, 2011 IL App (1st) 092802, ¶ 79.
Defendant does not present any facts in his initial or amended postconviction petitions to rebut
counsel’s statement to the trial court that these witnesses’ testimony would not have been helpful
to the defense or explain why this strategy was otherwise erroneous. Accordingly, the court
properly dismissed defendant’s petitions as frivolous and patently without merit.
¶ 30 Finally, we decline to address the State’s argument that defendant failed to
present a colorable claim of actual innocence, as defendant stated in his reply brief that although
he used the words “actual innocence” in his opening brief, his pro se petitions were not based on
such a claim.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the trial court’s judgment.
¶ 33 Affirmed.
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