People v. Grinnage , 2021 IL App (3d) 180318-U ( 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) 180318-UOrder filed June 23, 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. 3-18-0318
v. ) Circuit No. 15-CF-1192
)
JAROB K. GRINNAGE, ) Honorable
) Carmen J. Goodman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices Holdridge and Wright concurred in the judgment.
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ORDER
¶1 Held: Defendant’s postconviction petition alleged the gist of a claim of ineffective
assistance of appellate counsel for failing to challenge the sufficiency of the
evidence on direct appeal.
¶2 Defendant, Jarob K. Grinnage, appeals from the first-stage dismissal of his
postconviction petition. Defendant argues that he presented the gist of an ineffective assistance
of counsel claim. We reverse and remand for further proceedings.
¶3 I. BACKGROUND
¶4 The State charged defendant with unlawful possession of a controlled substance with
intent to deliver (720 ILCS 570/401(c)(2) (West 2014)) and unlawful possession of a controlled
substance (id. § 402(c)).
¶5 The trial evidence established that defendant travelled with Ryne Klinger and Sandra
Grant from Peoria to Chicago in Klinger’s vehicle. While returning from Chicago, they stopped
at a gas station. Detective Nathan Prasun observed Klinger using heroin in the gas station
bathroom and confronted him. Prasun then accompanied Klinger back to Klinger’s vehicle where
defendant was seated in the backseat. Grant was not in the vehicle at that time. Prasun testified
he could see defendant moving around in the backseat. Defendant did not stop moving around
until Prasun made multiple requests that he stop. Prasun saw defendant reach, with a shirt over
his hands, toward the rear passenger floorboard.
¶6 Klinger admitted to using heroin and consented to a search of his vehicle. Prasun testified
that Klinger told him there may be cocaine in the vehicle, but it belonged to defendant. Drug
paraphernalia and a plastic bag containing a white chunky substance, later determined to be
12.71 grams of cocaine, were found in the vehicle. The bag containing cocaine was found under
the front passenger seat. Both defendant and Klinger had sat in the backseat during the trip, and
Grant had sat in the front passenger seat. Klinger admitted the drug paraphernalia was his but
denied ownership of the cocaine. Klinger was given immunity for his testimony at trial.
Defendant testified that the cocaine was not his and he was not aware there was cocaine in the
vehicle.
¶7 An expert witness testified that 12.71 grams of cocaine was inconsistent with personal
use, that Chicago is a source city for narcotics, and that drug dealers travel to Chicago to
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purchase large amounts of drugs to transport to their city of origin. The State introduced
defendant’s prior conviction for unlawful delivery of a controlled substance into evidence.
¶8 The jury found defendant guilty of both charges. The charges merged and the court
sentenced defendant to six years’ imprisonment for unlawful possession of a controlled
substance with intent to deliver.
¶9 On direct appeal, defendant argued that the circuit court erred in admitting evidence of
his prior conviction for unlawful delivery of a controlled substance. We affirmed defendant’s
convictions and sentence. People v. Grinnage, 2018 IL App (3d) 150805-U.
¶ 10 Defendant filed, as a self-represented litigant, a postconviction petition alleging:
(1) appellate counsel was ineffective for failing to argue on direct appeal insufficiency of the
evidence; (2) trial counsel was ineffective for failing to call Grant as a witness; (3) trial counsel
was ineffective for failing to argue the “disparity” between defendant and Klinger’s cases; and
(4) trial counsel was ineffective for failing to challenge the admissibility of his prior conviction.
The circuit court dismissed the petition at the first stage. Defendant appeals.
¶ 11 II. ANALYSIS
¶ 12 Defendant argues, inter alia, that the State failed to prove that he possessed cocaine with
the intent to deliver it beyond a reasonable doubt and that appellate counsel was therefore
ineffective for failing to challenge the sufficiency of the evidence on direct appeal.
¶ 13 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a
process for a criminal defendant to assert that his conviction resulted from a substantial denial of
his rights under the United States Constitution, the Illinois Constitution, or both. People v.
Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage, defendant need only state the “gist” of a
constitutional claim. Id. The circuit court may summarily dismiss the petition at the first stage of
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proceedings if it is frivolous or patently without merit, such that it “has no arguable basis either
in law or in fact.” Id. at 16. “A petition which lacks an arguable basis either in law or in fact is
one which is based on an indisputably meritless legal theory or a fanciful factual allegation.” Id.¶ 14 Defendant’s petition alleged ineffective assistance of appellate counsel for failing to
argue on direct appeal that the State failed to prove him guilty beyond a reasonable doubt. Such a
petition may not be dismissed at the first stage “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.” Id. at 17.
¶ 15 When assessing the sufficiency of the evidence, this court determines whether the
evidence, when viewed in the light most favorable to the State, would permit any rational trier of
fact to find that the State proved the elements of the offense beyond a reasonable doubt. People
v. Ross, 229 Ill. 2d 255, 272 (2008). As relevant here, to sustain the charge of unlawful
possession of a controlled substance with the intent to deliver, the State needed to prove beyond
a reasonable doubt that defendant possessed a controlled substance and that he intended to
deliver that controlled substance. 720 ILCS 570/401(c)(2) (West 2014). There is rarely direct
evidence of intent, and it is usually proven through circumstantial evidence. People v. Robinson,
167 Ill. 2d 397, 408 (1995). Many factors have been considered by our courts as probative of
intent to deliver, including: “(1) whether the quantity of the controlled substance possessed is too
large to be viewed as being for personal consumption; (2) the high purity of the drug confiscated;
(3) possession of weapons; (4) possession of large amounts of cash; (5) possession of police
scanners, beepers or cellular telephones; (6) possession of drug paraphernalia; and (7) the
manner in which the substance is packaged.” People v. Nixon, 278 Ill. App. 3d 453, 457 (1996).
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¶ 16 Here, the evidence regarding defendant’s intent to deliver was limited and mainly
consisted of the defendant’s prior conviction for unlawful delivery, and expert testimony that
drug dealers travel to Chicago to buy drugs and 12.71 grams of cocaine was inconsistent with
personal use. None of the other factors typically considered as probative of intent to deliver were
present. See id. While the factors noted in Nixon are not exhaustive, the limited amount of
evidence presented in this matter makes it at least arguable that there was insufficient evidence to
support defendant’s conviction for possession of a controlled substance with intent to deliver.
Since it is arguable there was insufficient evidence, it is likewise arguable that defendant was
prejudiced by the failure of appellate counsel to raise this argument on direct appeal and arguable
that counsel’s performance was deficient, because insufficient evidence would require reversal of
defendant’s convictions.
¶ 17 While the evidence may ultimately be deemed sufficient to support defendant’s
convictions, the fact defendant raised an arguable claim in his postconviction petition precluded
dismissal at the first stage. Thus, the matter must be remanded for second-stage proceedings.
Further, because partial dismissals are not permitted, we advance the entire petition to the second
stage, and therefore, we need not address the remaining allegations in the petition. See People v.
Rivera, 198 Ill. 2d 364, 371 (2001).
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Will County is reversed and remanded for further
proceedings.
¶ 20 Reversed and remanded.
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