People v. Jones , 2021 IL App (2d) 180794-U ( 2021 )

2021 IL App (2d) 180794-UNo. 2-18-0794
Order filed June 14, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and may not be cited as
precedent by any party 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 Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-878
)
MAURICE JONES, ) Honorable
) Victoria A. Rosetti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Justice Jorgensen concurred in the judgment.
Justice Birkett specially concurred.
ORDER
¶1 Held: Although defendant’s postconviction petition stated a gist of a constitutional claim
to survive first-stage review, none of the petition’s six claims made a substantial
showing of a constitutional violation. Thus, the trial court did not err in granting
the State’s motion to dismiss defendant’s postconviction petition.
¶2 This is defendant, Maurice Jones’s, second appeal in connection with his postconviction
petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). In
the first appeal, we reversed the summary dismissal of defendant’s petition. People v. Jones, 2017
2021 IL App (2d) 180794-UIL App (2d) 151145-U (Jones I). On remand, the State moved to dismiss the petition, and the trial
court granted the motion. Defendant now appeals from the dismissal. We affirm.
¶3 I. BACKGROUND
¶4 Much of the following background is taken verbatim from our decision in Jones I. On
August 21, 2012, defendant entered a negotiated plea of guilty in the circuit court of Lake County
to a single count of armed violence (720 ILCS 5/33A-2(c) (West 2012)). Under his plea agreement,
defendant was sentenced to a 25-year prison term and the State nol-prossed other charges against
him, including a charge of attempted first-degree murder. Defendant did not pursue a direct appeal
from the conviction. Through counsel, defendant filed his postconviction petition on August 18,
2015. He alleged that he did not receive the effective assistance of counsel in connection with his
plea and that his sentence was disparate to the sentences received by his codefendants.
¶5 When defendant entered his plea, he was represented by attorney Anthony J. Carullo. As
the factual basis for the plea, the prosecutor stated that, if the matter proceeded to trial, officers
from the Waukegan Police Department would testify that, on Saturday, March 24, 2012, Dennis
Metz was shot during a robbery. Metz worked at a bowling alley with Jessica Baynes. Baynes,
who was the mother of defendant’s son, had previously told defendant that cash receipts from the
bowling alley were taken to the bank on Saturday mornings. Defendant, Baynes, and Jeremy Miller
devised a plan to steal the cash receipts. Defendant and Miller drove in a stolen van to the bowling
alley. One of them approached Metz, shot him, and took the receipts. Then they drove to a location
where Baynes was waiting in her car. They all fled in Baynes’s car. A witness who observed the
offenders getting into Baynes’s car was able to identify that vehicle. Defendant and Baynes were
arrested the next day. Both admitted their involvement in the plan to rob the bowling alley. Both
also admitted that Metz had been shot. Defendant’s attorney stipulated to the factual basis, with
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2021 IL App (2d) 180794-Uthe proviso that “there was another individual who is an unnamed conspirator in this, and that the
State’s evidence would show that [defendant] is not, in fact, the shooter in this matter.”
¶6 Baynes and Miller were also charged in connection with the shooting. On September 10,
2013, Baynes pleaded guilty to aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2012)) and
was sentenced to a 10-year prison term. At Baynes’s sentencing hearing, it was noted that Miller
had pleaded guilty to an unspecified offense and was sentenced to probation and a 160-day jail
term.
¶7 In his postconviction petition, defendant alleged as follows. He was arrested at 3:09 p.m.
on March 24, 2012. He was instructed by officers to remove his shirt and shoes. Before making
any incriminating statements to the police, he told the officers that he needed a lawyer. He told
“multiple officers on multiple occasions that he wanted to speak with an attorney,” and the officers
“ignored and/or denied Defendant’s requests to speak with an attorney, and continued to question
him.” Defendant later learned that his family had retained an attorney for him. The attorney, Steven
Goldman, arrived at the police station while defendant was being questioned, but defendant was
never told. In his affidavit, defendant stated, “As the interrogation continued, I told the detectives
that I was concerned about my son’s mother, Jessica Baynes.” A police officer told defendant that,
if he gave a statement, he could see Baynes and she would be released. Defendant made oral and
written statements to the police admitting his involvement in the robbery and shooting but claiming
that someone named “Neo” had shot Metz. Neo was not involved in the initial planning of the
robbery, but Miller brought him along to participate in the robbery and he met with defendant,
Baynes and Miller when they went over the plan. Among the attachments to defendant’s petition
was his written statement to the police, dated “3/25/12 @ 2:00 pm.”
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2021 IL App (2d) 180794-U¶8 Defendant further alleged in his petition that he advised Carullo of the circumstances under
which he gave his statements. Defendant claimed that, by failing to move to suppress his
statements and by recommending that defendant enter a negotiated plea, Carullo provided
ineffective assistance.
¶9 Defendant also claimed that Carullo failed to properly advise him about the penalties he
faced if he went to trial. As part of defendant’s plea agreement, the State nol-prossed a charge of
attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012)). That offense is a Class
X felony, but the indictment included notice that “the People are seeking that a sentence of 25
years or up to a term of natural life be added to the term of imprisonment imposed by the court, in
that the defendant[] personally discharged a firearm that proximately caused great bodily harm to
Dennis Metz.” See 720 ILCS 5/8-4(c)(1)(D) (West 2012). In contrast, the other charges against
defendant carried a maximum sentence of no more than 30 years’ imprisonment. According to the
petition, the State would not have been able to meet the burden of proving that defendant was
guilty of attempted murder or that he personally discharged a firearm. Defendant alleged that
Carullo did not explain this to him; had defendant known, he would not have accepted the State’s
plea offer.
¶ 10 Defendant supported the petition’s allegations with his affidavit and various other
documents, including the transcript of Baynes’s sentencing hearing.
¶ 11 As noted, in Jones I, we reversed the summary dismissal of the petition. We concluded that
the petition stated the gist of a claim that defendant received ineffective assistance of counsel
because his attorney did not move to suppress his statements on the basis that the police questioned
defendant after he requested an attorney. Jones I, 2017 IL App (2d) 151145-U, ¶¶ 11-12. Under
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), an “accused *** having expressed his desire to
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2021 IL App (2d) 180794-Udeal with the police only through counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
¶ 12 Because a petition must advance to the second stage if even one of its claims is not frivolous
or patently without merit, we did not consider the remaining claims in the petition. Jones I, 2017
IL App (2d) 151145-U, ¶ 12. On remand, the State moved to dismiss the petition, and the trial
court granted the motion.
¶ 13 II. ANALYSIS
¶ 14 The following principles govern proceedings under the Act:
“A defendant may initiate proceedings under the Act by alleging that ‘in the
proceedings which resulted in his or her conviction[,] there was a substantial denial of his
or her rights under the Constitution of the United States or of the State of Illinois or both’
[citation]. Section 122-1(b) of the Act provides that ‘[t]he proceeding shall be commenced
by filing with the clerk of the court in which the conviction took place a petition (together
with a copy thereof) verified by affidavit.’ (Emphasis added.) [Citation.] ***
*** [T]he Act establishes a three-stage process for adjudicating a postconviction
petition. [Citations.] At the first stage, ‘the trial court, without input from the State,
examines the petition only to determine if [it alleges] a constitutional deprivation
unrebutted by the record, rendering the petition neither frivolous nor patently without
merit.’ (Emphasis omitted.) [Citation.] Section 122-2.1 of the Act directs that, if the trial
court determines that the petition is frivolous or patently without merit, it shall dismiss it
in a written order. [Citations.]
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2021 IL App (2d) 180794-UIf a petition is not dismissed at the first stage, it proceeds to the second stage ***.
At the second stage, the State has the option to either answer or move to dismiss the
petition. [Citation.] The trial court then determines whether the petition alleges a
‘substantial showing of a constitutional violation.’ [Citation.] ***
If the allegations in the petition, supported by the record and accompanying
affidavits, demonstrate a substantial violation of a constitutional right, the petition proceeds
to the third stage, at which point the court conducts an evidentiary hearing. [Citation.] A
defendant is not entitled to an evidentiary hearing as a matter of right [citation], but rather
the defendant must make specific and factual assertions.” People v. Turner, 2012 IL App
(2d) 100819, ¶¶ 17-20.
¶ 15 This appeal arises from the second-stage dismissal of defendant’s petition. When a petition
is dismissed at that stage, our review is de novo. Id., ¶ 21. “Dismissal is warranted at the second
stage where the defendant’s claims, liberally construed in light of the trial record, fail to make a
substantial showing of a constitutional violation.” Id. Factual allegations are taken as true unless
rebutted by the record. Id.
¶ 16 Defendant’s petition raises six claims of error that should entitle him to an evidentiary
hearing. First, as discussed in Jones I, defendant argues that Carullo provided ineffective assistance
by not filing a motion to suppress statements he made during interrogation after he requested an
attorney. Second, defendant argues that Carullo provided ineffective assistance by not filing a
motion to suppress his confession because Goldman was available but not permitted to be present
during the interrogation. Third, defendant argues that his confession was involuntary. Fourth,
defendant argues Carullo provided ineffective assistance with respect to his plea. Fifth, defendant
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2021 IL App (2d) 180794-Uargues that his sentence was disparate to Miller’s sentence. Finally, defendant argues the trial court
improperly enhanced his sentence.
¶ 17 We first consider whether defendant is entitled to an evidentiary hearing on the claim that
he asked for an attorney during interrogation, that the police continued to question him without
honoring the request, that he advised Carullo of those facts, and that Carullo failed to move to
suppress defendant’s confession. In Jones I, we held that this claim was sufficient to survive
summary dismissal at the first stage of the proceeding. In doing so, we noted that the claim was
supported by defendant’s affidavit and that it could be inferred that Carullo and the officers who
interrogated defendant would not provide affidavits. We further held that, for that reason, section
122-2 did not require affidavits from those individuals. Jones I, 2017 IL App (2d) 151145-U, ¶ 11
n.1.
¶ 18 At the first stage of the proceedings, the defendant need only show the “gist” of a
constitutional claim. People v. Hoekstra, 371 Ill. App. 3d 720, 722 (2007). To survive a motion to
dismiss at the second stage, however, the petition and affidavit must meet a higher standard; they
must make a substantial showing of a constitutional violation. Here defendant’s petition falls short.
Despite defendant’s request for counsel, he ultimately chose to speak to the police on his own
accord and initiative. According to his affidavit, it was defendant who raised his concerns about
Baynes with the police. Defendant thus initiated the conversation that led to his confession.
Accordingly, the confession was not improper, and defendant’s motion to suppress would have
failed. See Edwards, 451 U.S. at 484-85 (holding defendant who expressed desire to deal with the
police only through counsel was not subject to further interrogation unless he initiates further
conversation). Carullo was not ineffective for failing to bring such a motion.
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2021 IL App (2d) 180794-U¶ 19 We move to the postconviction claims that we did not consider in Jones I. We consider
first whether defendant stated a substantial claim that Carullo was ineffective by failing to move
to suppress defendant’s confession because Attorney Goldman was available and traveled to the
site of the interrogation but was not permitted to be present at the interrogation. Under the Illinois
Constitution, “when police, prior to or during custodial interrogation, refuse an attorney appointed
or retained to assist a suspect access to the suspect, there can be no knowing waiver of the right to
counsel if the suspect has not been informed that the attorney was present and seeking to consult
with him.” (Internal quotation marks omitted) People v. McCauley, 163 Ill. 2d 414, 425 (1994).
At issue here is whether defendant’s affidavit was sufficient to substantiate this claim. We find
that it was not. “The affidavits that accompany a postconviction petition must identify with
reasonable certainty the sources, character, and availability of the alleged evidence supporting a
defendant’s allegations.” People v. Carter, 2017 IL App (1st) 151297, ¶ 129. Defendant averred
that he “learned” that Goldman had not been permitted to assist him. Defendant did not specify
how he learned that, so the affidavit does not establish the source, character, or availability of the
evidence that Goldman was prevented from assisting defendant.
¶ 20 Presumably, Goldman himself could have substantiated defendant’s allegations if they
were true. Defendant argues, however, that he could not be expected to secure an affidavit from
Goldman. The affidavit requirement will be relaxed where it can be inferred that an affidavit would
be unavailable. See People v. Collins, 202 Ill. 2d 59, 67-68 (2002). Thus, a defendant cannot be
expected to secure an affidavit from counsel that would expose counsel’s incompetence. The same
reasoning applies to police officers accused of misconduct. However, the allegations in the petition
do not suggest that Goldman had any similar reason to refuse to provide an affidavit. Although
defendant argues that “[w]itnesses, including lawyers, do not savor the opportunity to get involved
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2021 IL App (2d) 180794-Uin legal proceedings,” reticence to provide an affidavit is qualitatively different from the
disincentive that an attorney would have if an affidavit would show that he or she provided a client
with deficient representation. We thus conclude that defendant is not entitled to an evidentiary
hearing on his claim that Goldman was prevented from assisting him.
¶ 21 Defendant also claimed in his petition that his confession was involuntary because “[he]
was forced to remove his shirt and shoes; he was repeatedly denied access to an attorney; and he
was told that if he gave a statement, the mother of his child would be released.” Defendant did not
discuss this claim in his opening brief. However, the State addressed it in its brief and defendant
responded in his reply brief. Under Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) points
raised for the first time in the reply brief are forfeited. However, Rule 341(j) (eff. Oct. 1, 2020)
“permits appellants to reply to arguments presented in the brief of the appellee,” as “[i]t would be
unfair for us to require an appellant, when writing his or her opening brief, to anticipate every
argument that may be raised by an appellee” (People v. Whitfield, 228 Ill. 2d 502, 514 (2007)). By
raising the issue of voluntariness in its brief, the State arguably invited defendant to respond in his
reply brief, notwithstanding the forfeiture.
¶ 22 Be that as it may, defendant’s argument is without merit. In his reply brief, defendant
argues that “promises of leniency result in involuntary statements.” Citing People v. Eckles, 128
Ill. App. 3d 276, 278 (1984), defendant contends that “[a] police officer’s statement is a promise
of leniency if it is coupled with a suggestion of a specific benefit that will follow if a defendant
confesses.” According to defendant, releasing Baynes and allowing him to see her were the type
of benefits associated with a promise of leniency. Contrary to defendant’s argument, it has been
observed that:
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2021 IL App (2d) 180794-U“[A] confession is not rendered involuntary merely because promises or suggestions of
leniency have been made. [Citations.] Rather, such a promise is only one factor to be
considered in determining whether, in the totality of circumstances, the defendant’s
confession was voluntary. [Citation.] The test in making such a determination is whether
the confession was given without compulsion or inducement that would overcome the
defendant's will.” People v. Wright, 127 Ill. App. 3d 747, 751-52 (1984).
Defendant has not discussed the totality of the circumstances here. Nor has he cited any case law
holding that the sort of promise allegedly made in this case is sufficient to overcome the
defendant’s will without regard to other relevant circumstances. Accordingly, we reject
defendant’s argument.
¶ 23 Defendant next contends that he is entitled to an evidentiary hearing on his petition’s claim
that he received ineffective assistance of counsel in connection with his plea, because his attorney
advised him that if he proceeded to trial, he would be convicted of attempted first-degree murder
under a theory of accountability. Defendant argues that the evidence would not have established
that he was accountable for the shooting. (We note that defendant does not address the question of
whether, if convicted of attempted first-degree murder, he would have been subject to the 25-
years-to-life add-on for personally discharging a weapon.) Defendant’s argument is meritless. In
his statement to police, defendant indicated that he planned the robbery with Miller and Baynes.
The shooter, Neo, participated in the robbery and was present when defendant, Baynes, and Miller
went over the plan. “Under the common design rule, where two or more persons engage in a
common criminal design of agreement, any acts in furtherance committed by one party are
considered to be the acts of all parties to the common design and all are equally responsible for the
consequences.” People v. Johnson, 2014 IL App (1st) 120701, ¶ 22. Furthermore:
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2021 IL App (2d) 180794-U“Under the common-design rule, the State need not prove that the defendant and
the principal shared the same intent vis-à-vis the charged crime. Instead, as this court has
held, ‘the State need only prove the accused had the specific intent to promote or facilitate
a crime. Once the State proves the accused intended to promote or facilitate a crime, it has
established the accused’s responsibility for any criminal act done in furtherance of the
intended crime.’ (Emphases in original.) [Citation.]” People v. Phillips, 2014 IL App (4th)
120695, ¶ 43.
¶ 24 Based on defendant’s statement and the factual basis for defendant’s plea, it does not
appear that the State would have had any difficulty in proving that defendant and Neo engaged in
a common criminal design to rob Metz and that Neo shot Metz in furtherance of that crime. People
v. Johnson, 2014 IL App (1st) 122459-B, cited by defendant, is distinguishable. In that case, the
court found that the defendant was not accountable for a shooting because he drove the shooter
away from the scene of a murder, where the defendant did not participate in planning the shooting
and had no idea that the shooter was armed and intended to shoot the victim. In Johnson, unlike in
this case, there was no evidence that the defendant and the shooter were engaged in any common
criminal design. Id. ¶ 133. Another case cited by defendant, People v. Taylor, 186 Ill. 2d 439, 448
(1999), is distinguishable for the same reason. We thus reject defendant’s argument that his plea
was the result of counsel’s failure to accurately advise him of the likelihood of a conviction of
attempted first-degree murder.
¶ 25 Defendant next contends that he is entitled to an evidentiary hearing on the claim in his
petition that his sentence is disparate to Miller’s. “To prevail on a claim of disparate sentencing, a
defendant bears the burden of demonstrating that he and his codefendant were both (1) equally
culpable and (2) similarly situated with respect to background, prior criminal history, and potential
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2021 IL App (2d) 180794-Ufor rehabilitation.” (Internal quotation marks omitted.) People v. Guerrero, 2020 IL App (1st)
172156, ¶ 53. Miller pleaded guilty to an unspecified, though evidently less serious, offense than
that to which defendant pled guilty. Miller was sentenced to probation and a 160-day jail term.
Defendant claims that he and Miller were similarly culpable. If one considers only the factual basis
for defendant’s plea, that would appear to be true. However, we are aware of no authority that the
factual basis for one defendant’s guilty plea is controlling for a codefendant’s culpability. More
importantly, the record indicates that the State faced hurdles in proving Miller’s culpability.
¶ 26 According to the transcript of her sentencing hearing, Baynes argued, in part, that a 15-
year sentence (which the State requested) would be excessive when compared with Miller’s
sentence. The State responded that the only evidence it had that Miller was involved were
statements by defendant and Baynes. Hence, the State would have been unlikely to secure a
conviction against Miller for a serious offense without cooperation from defendant or Baynes,
which apparently was not forthcoming. We note that “[d]isparate sentences imposed on defendants
convicted of similar offenses may be justified if there is a valid reason for the disparity.” (Emphasis
added.) People v. McGowan, 2013 IL App (2d) 111083, ¶ 15. The disparity here exists because
the codefendant was permitted to plead guilty to a different offense based on a reasonable
determination that the evidence would not support a conviction of a more serious crime. Thus,
defendant cannot establish that he and Miller equally culpable of the crime.
¶ 27 Finally, defendant argues that the trial court improperly enhanced his sentence based on a
conviction of aggravated unlawful use of a weapon that is void under People v. Aguilar, 2013 IL
112116. Defendant’s sentence was negotiated, but he contends that the trial court relied on the
void conviction in approving the agreed sentence. Defendant did not raise this issue in his
postconviction petition. A defendant may at any time attack a sentence as void if the underlying
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2021 IL App (2d) 180794-Uconviction was based on a criminal statute that was void ab initio. People v. Stoecker, 2020 IL
124807, ¶ 28. However, it does not follow that a negotiated sentence is void because the trial court
approved it based on a void conviction in the defendant’s criminal history. Thus, defendant’s claim
was subject to waiver, and defendant waived it by failing to raise it in his petition. See 725 ILCS
5/122-3 (West 2018).
¶ 28 Because none of the alleged claims of error rise to the level of a substantial showing of a
constitutional violation, defendant is not entitled to an evidentiary hearing, and the trial court did
not err in dismissing defendant’s postconviction petition.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 31 Affirmed.
¶ 32 JUSTICE BIRKETT, specially concurring:
¶ 33 I believe, as the trial court found, that defendant’s claim of ineffective assistance of trial
counsel for failure to file a motion to suppress is waived. In this case, the record is abundantly
clear that defendant was aware of the grounds for a motion to suppress, which he says he conveyed
to his lawyer before the guilty plea. He entered a plea of guilty and was properly admonished
regarding the filing of a post plea motion to preserve any issue for review. Defendant did not file
a motion to withdraw his plea. “Even if it could be said that the allegation with respect to damaging
admissions made by the defendant presented a constitutional question, the plea was waived by
voluntary pleas of guilty.” People v. Brown, 41 Ill. 2d 503, 505 (1969). Our supreme court has
made clear that the waiver rule in supreme court rule 604(d) “applies to post-conviction
proceedings as well as to appeals.” People v. Stewart, 123 Ill. 2d 368, 374 (1988) (citing People
v. Ward 48 Ill. 2d. 117, 120-21 (1971).
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2021 IL App (2d) 180794-U¶ 34 In this case, the trial court’s order cited People v. Peeples, for the proposition that a
voluntary guilty plea waives all errors or irregularities that are not jurisdictional. “Issues waived
by a defendant’s guilty plea include the admissibility of his or her confession.” 155 Ill. 2d 422,
491 (1993). There is no exception to the waiver rule where a defendant wraps the confession issue
into a claim of ineffective assistance of counsel. During the plea hearing, the trial court asked the
defendant whether he had “any other questions or issues that [he wanted] to go over with [his]
attorney before [the court went] over the agreement,” and defendant answered, “No.” In his
affidavit, defendant says that he told “Mr. Carullo [he] wanted a motion to suppress [his]
statements filed.” This claim should have been brought in a timely post plea motion, not in a
postconviction petition. As such, the claim is waived.
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