People v. Sawyer , 2021 IL App (1st) 182123-U ( 2021 )

2021 IL App (1st) 182123-UNo. 1-18-2123
Order filed June 22, 2021.
Modified upon denial of rehearing August 3, 2021.
Second Division
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 09 CR 11997
)
BRYAN SAWYER, ) The Honorable
) Nicholas R. Ford,
Petitioner-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: The trial court properly dismissed defendant’s postconviction petition because he did not
present new, material, noncumulative evidence to establish a claim of actual innocence or show that he
was not culpably negligent for the untimeliness of his claim of ineffective assistance of trial counsel. We
affirm.
¶2 Defendant Bryan Sawyer appeals from the trial court’s second-stage dismissal of his
petition for postconviction relief brought pursuant to the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2016)). Defendant asks this court to reverse the dismissal of his
No. 1-18-2123
postconviction petition asserting a claim of actual innocence, and alternatively, a claim of
ineffective assistance of trial counsel. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Following a jury trial in 2010, defendant was convicted of being an armed habitual
criminal (720 ILCS 5/2-1.7(a) (West 2008)) and of aggravated fleeing or attempting to elude a
police officer (625 ILCS 5/11-204.1(a)(1) (West 2008)). Defendant’s convictions stemmed from
his involvement in a high-speed chase that ultimately resulted in a collision between the vehicle
he was driving and a police car. He was sentenced to a term of 18 years’ imprisonment for the
armed habitual criminal conviction and to a concurrent term of six years’ imprisonment for the
aggravated fleeing conviction. On direct appeal, this court affirmed defendant’s convictions and
his prison sentences for those convictions, as will be discussed below. See People v. Sawyer,
2011 IL App (1st) 102626-U.
¶5 The following is a summary of the evidence detailed in our order disposing of
defendant’s direct appeal.
¶6 Around 10:30 p.m. on June 15, 2009, defendant was driving a blue Chevy Trailblazer
when he was pulled over by the police for running a stop sign, located at the corner of Polk
Street and Lawndale Avenue in Chicago’s west side. His two codefendants, Derrick Jones and
Markas Barrett, were also inside the truck that night. 1 Officer Robert Roth testified that when he
approached the passenger side of the truck defendant was driving, he observed a “shiny” object
on top of the center console which he believed was a gun. Immediately thereafter, however,
1
Codefendants Jones and Barrett were not mentioned in our order disposing of defendant’s direct
appeal; however, codefendants, along with the parties to this appeal, have stated that they were with
defendant in the truck when he was pulled over by the police.
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No. 1-18-2123
defendant “took off” in the truck, leading Officer Roth and his partner, Officer Mike Metter, on a
high-speed car chase.
¶7 Meanwhile, other police officers were dispatched to help catch defendant. Sergeant Jeff
Truhlar testified that he followed defendant, who was driving more than 70 miles per hour, onto
the expressway. At some point, defendant merged into the far left lane of the expressway.
Sergeant Truhlar then saw a dark object, which was later identified as a gun, thrown out of the
driver’s side of the truck. Moments later, another gun was thrown from the driver’s side of the
truck. Two nine millimeter handguns were ultimately recovered from the expressway.
¶8 The police continued to pursue defendant after he got off the expressway. Defendant
eventually crashed into a police car near the intersection of Halsted and Taylor Street.
Undaunted, defendant exited the truck, then led the police on a foot chase until he was
apprehended by Officer Jason Edwards. Defendant and codefendants were subsequently taken
into custody.
¶9 Defendant was charged with the offenses of armed habitual criminal and of aggravated
fleeing or attempting to elude a police officer. At trial, the parties stipulated that defendant had
two qualifying offenses for the armed habitual criminal charge.
¶ 10 Notably, defendant, who was free on bond, did not appear on the second day of trial, even
though the trial judge had informed him the day before that the proceedings would continue
without him and that he could be convicted and sentenced in abstentia. The trial judge thus
found that defendant’s absence was willful and commenced the proceedings without him.
¶ 11 The jury ultimately found defendant guilty of being an armed habitual criminal and of
aggravated fleeing or attempting to elude a police officer. The trial court then sentenced
defendant to 18 years’ imprisonment for the armed habitual criminal conviction and to six years’
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imprisonment for the aggravated fleeing or attempting to elude a police officer conviction, to be
served concurrently.
¶ 12 On direct appeal before this court, defendant challenged the sufficiency of the evidence
for his armed habitual criminal conviction, asserting that the State failed to establish that he
constructively possessed a firearm because no evidence showed that he knew there were guns in
the truck on the night he was pulled over by the police or that he had exclusive control over the
area of the expressway where the guns were recovered. Defendant also challenged the 18-year
prison sentence for his armed habitual criminal conviction as being excessive, asserting that it
was “double enhanced” because the trial court considered his criminal history in aggravation
when it was already considered for the offense. 2
¶ 13 This court rejected both arguments and affirmed defendant’s conviction and sentence,
concluding first that there was sufficient evidence for the jury to find that defendant had
constructively possessed a firearm. Among other things, we noted that the jury was presented
with evidence indicating that defendant “was the driver of a truck in which a police officer saw a
gun on the center console and from which two guns were thrown.” Id. ¶ 17. Additionally, we
found that defendant’s actions following the collision (i.e., when he ran away from the police
after exiting the truck) “provide[d] a reasonable inference of flight to avoid police custody and
further support[ed] an inference that [he] possessed the guns.” Id. We further found that
defendant’s constructive possession of the guns was not foiled by the fact that they were
disposed of on the expressway. See id. ¶ 20 (noting that a defendant’s physical control of the
contraband or of the area where it was recovered is not required for conviction).
2
We note that defendant claimed both of his prison sentences were excessive but focused only on
the 18-year prison sentence imposed for his armed habitual criminal conviction. See People v. Sawyer,
2011 IL App (1st) 102626-U, ¶ 27.
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¶ 14 Finally, we concluded that the trial court did not abuse its discretion in sentencing
defendant to 18 years in prison, a term in the middle of the applicable statutory range. Id. ¶ 37. In
reaching that conclusion, we noted that the trial court could properly consider the fact that
defendant had a criminal history, in addition to the nature and circumstances surrounding his past
offenses. Our order affirming the trial court’s judgment was issued on December 15, 2011.
¶ 15 We note, however, that defendant elected to not file an appeal from that judgment with
the Illinois Supreme Court.
¶ 16 On August 21, 2017, defendant filed, through counsel, a petition for postconviction relief,
alleging there was newly discovered evidence that established his actual innocence with respect
to the armed habitual criminal conviction. Alternatively, defendant alleged that if the evidence
was not newly discovered, then his trial counsel was ineffective for not discovering it sooner.
¶ 17 Defendant acknowledged that his ineffective assistance of trial counsel claim was not
timely brought but argued that he was not culpably negligent for the untimeliness, as will be
discussed in more detail below.
¶ 18 To support his actual innocence claim, defendant attached to the petition affidavits from
his two codefendants. The affidavit from codefendant Jones stated that, when he got into the
truck defendant was driving on the night in question, he was carrying one of the nine millimeter
handguns that was later recovered from the expressway but did not tell defendant that he had it.
After the police began chasing them, he gave the gun to codefendant Barrett, who was sitting in
the backseat behind defendant, to throw out the window. Codefendant Jones’ affidavit further
stated that he ultimately pled guilty to his own weapon charges, and that he had been willing to
testify on defendant’s behalf but was not contacted by defendant’s trial counsel.
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No. 1-18-2123
¶ 19 Likewise, the affidavit from codefendant Barrett stated that, when he got into the truck
defendant was driving on the night in question, he was carrying the other nine millimeter
handgun that was subsequently recovered from the expressway but did not tell defendant that he
had it. Once they were on the expressway, he threw the gun out of the window, then “gestured”
to codefendant Jones to hand him his gun. When he did, codefendant Barrett threw that gun out
of the window. Codefendant Barrett’s affidavit further stated that he pled guilty to his own
weapon charge, and that he too had been willing to testify for defendant but was not contacted by
his trial counsel or issued a subpoena.
¶ 20 Defendant’s petition was also supported by his own affidavit stating that he did not know
codefendants had guns in the truck on the night he was pulled over by the police and that he fled
initially because he had been drinking and was on probation. Additionally, defendant’s affidavit
stated that his trial counsel was aware of the information gleaned from codefendants’ affidavits
but that he “refused to interview them,” despite defendant’s repeated requests. According to
defendant, his trial counsel’s decision to not contact codefendants was the reason that he did not
appear on the second day of trial: “[o]nce I realized he did not want to help me [I] decided not to
come to court because my only defense to prove my innocence was not going to be granted.”
¶ 21 The State subsequently moved to dismiss defendant’s petition, asserting that it did not
allege a viable claim of actual innocence because the information contained in codefendants’
affidavits was not newly discovered evidence, among other things. In addition, the State argued
that defendant’s claim of ineffective assistance of trial counsel was untimely and that defendant
was culpably negligent for the lateness. The State further argued that, even if defendant was not
culpably negligent, he failed to show that his trial counsel was infective for not calling
codefendants to testify at trial.
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¶ 22 After hearing arguments from the parties, the trial court granted the State’s motion to
dismiss, concluding that the information contained in codefendants’ affidavits was merely
cumulative evidence of reasonable doubt that would not change the result on retrial. The trial
court dismissed defendant’s postconviction petition on September 6, 2018, and he appealed.
¶ 23 II. ANALYSIS
¶ 24 The Act provides a procedural mechanism through which a criminal defendant can
challenge his conviction by showing that his constitutional rights were substantially violated. 725
ILCS 5/122-1 et seq; People v. Pendleton, 223 Ill. 2d 458, 471 (2006). A petition for
postconviction relief is not an appeal of the underlying judgment of conviction; rather, it is a
collateral attack upon a prior conviction and sentence based on constitutional claims that were
not, and could not have been, adjudicated on direct appeal. People v. Gonzalez, 2016 IL App
(1st) 141660, ¶ 22. Thus, any claims that were raised and decided on direct appeal will not be
considered because they are barred by the doctrine of res judicata. People v. Edwards, 2012 IL
111711, ¶ 21. Similarly, issues that could have been raised on direct appeal, but were not, will
not be considered because they are forfeited. Id.¶ 25 Proceedings under the Act occur in three stages. Pendleton, 223 Ill. 2d at 471-72. At the
first stage, the trial court reviews a defendant’s postconviction petition and may summarily
dismiss it if the court determines that it is frivolous or patently without merit. People v. Greer,
212 Ill. 2d 192, 203 (1995). If the trial court either concludes that the defendant’s petition has set
forth the gist of a meritorious claim or fails to act on the petition within 90 days, the petition will
proceed to the second stage, at which time counsel will be appointed if the defendant is not
already represented. Id.-7-
No. 1-18-2123
¶ 26 Where, as here, a petition advances to the second stage, the defendant must make a
substantial showing that a constitutional violation occurred by supporting his allegations with the
trial record or appropriate affidavits. People v. Flowers, 2015 IL App (1st) 113259, ¶ 31; see also
People v. Martinez, 2021 IL App (1st) 190490, ¶ 57 (noting, “[t]his showing is greater than that
required to obtain leave to file a successive petition”). Courts must take all well-pleaded
allegations that are not positively rebutted by the record as true. Flowers, 2015 IL App (1st)
113259, ¶ 31. Additionally, at the second stage, the State may answer the petition or file a
motion to dismiss it. Id. We review a trial court’s second-stage dismissal of a postconviction
petition de novo, and we may affirm the court’s dismissal on any basis in the record, regardless
of whether the court relied on that basis or whether its reasoning was correct. Gonzalez, 2016 IL
App (1st) 141660, ¶ 25.
¶ 27 A. Actual Innocence
¶ 28 Defendant first contends that the trial court erroneously dismissed his postconviction
petition without an evidentiary hearing because the information in codefendants’ affidavits that
he did not know they had guns in the truck on the night he was pulled over, conclusively
established his actual innocence with respect to the armed habitual criminal conviction.
¶ 29 To succeed on an actual innocence claim, a defendant must present evidence that is (1)
newly discovered, (2) material and not merely cumulative, and that (3) is of such conclusive
character that it would probably change the result on retrial. People v. Coleman, 2013 IL 113307,
¶ 96. Evidence is newly discovered if it was discovered after trial and could not have been
discovered sooner through the defendant’s exercise of due diligence. Id. Evidence is material if it
is relevant and probative of the defendant’s innocence, and noncumulative if it adds to what the
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jury heard at trial. Id. Finally, the conclusive element is satisfied if the evidence, when
considered along with the trial evidence, would probably lead to a different result. Id.¶ 30 After carefully reviewing the record in this case, we cannot say that the information in
codefendants’ affidavits constituted newly discovered evidence to support defendant’s claim of
actual innocence. Foremost, defendant’s affidavit, by its own terms, shows that he knew
codefendants could have testified that they didn’t tell him they had guns in the truck on the night
in question, and that he communicated this information to his trial counsel. Codefendants’
affidavits also clearly state that they would have testified on defendant’s behalf but that his trial
counsel never contacted them. Furthermore, there was no attempt to subpoena codefendants and
no explanation has been provided as to why subpoenas were not issued. Although defendant
claims the fact that codefendants were not contacted shows a lack of due diligence by his trial
counsel, not by him, this establishes that the evidence was not acted upon, not that it was newly
discovered.
¶ 31 Nevertheless, defendant sets forth a number of reasons why he believes that any attempt
to obtain codefendants’ testimony at the time of trial would have been futile, in order to establish
that the evidence could not have been discovered sooner. We will not speculate as to why
codefendants were not contacted or issued subpoenas by defense trial counsel in this case. And,
in any event, defendant’s argument is belied by the affidavits themselves wherein codefendants
stated that they would have testified on his behalf had they been contacted by his trial counsel.
This evidence, therefore, was insufficient to satisfy the due diligence requirement.
¶ 32 We note, however, that at oral argument before this court, defense counsel admitted that,
at the time of defendant’s trial, codefendants had already pleaded guilty to their own weapons
charges and the time period to withdraw their guilty pleas had passed, which was contrary to
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what defendant stated in his appellate brief. Cf. Martinez, 2021 IL App (1st) 190490, ¶ 110 (in
rejecting the State’s argument that the expert report did not constitute newly discovered evidence
because it predated the defendant’s conviction, the court noted that, at the time of his trial, expert
testimony such as that found in the report, was commonly excluded).
¶ 33 Based on the foregoing, we conclude that defendant failed to present newly discovered
evidence to support his claim of actual innocence.
¶ 34 Even if the information contained in codefendants’ affidavits constituted newly
discovered evidence, defendant’s claim fails because the evidence is cumulative and not
sufficiently conclusive. Defendant argues that the statements in codefendants’ affidavits, taken as
true, “completely exonerate [him] of the armed habitual criminal offense” because they prove
that he had neither actual nor constructive possession of the guns. Setting aside the fact that
defendant exhausted the constructive possession issue on direct appeal, codefendants’
statements, at most, demonstrate only that defendant didn’t have actual possession of the guns,
not that he never saw them in the truck so as to defeat any possibility of his constructive
possession. Although complete exoneration is not required, defendant nonetheless is the one
using those words. But see id. ¶ 112.
¶ 35 In his affidavit, codefendant Jones stated that defendant “never touched nor was ***
aware of any guns being in the S.U.V. at any time [sic].” Yet, codefendant Jones also stated that
he was sitting in the front passenger seat when he gave his gun to codefendant Barrett, who was
sitting behind defendant in the back seat, to throw out the window. This indicates that the gun
was visible at some point during their exchange; thus, codefendant Jones’ statements, taken as
true, do not demonstrate that defendant was never aware of it. Likewise, codefendant Barrett
stated that “there [was] no way [defendant] could have known” guns were in the truck because
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No. 1-18-2123
they “were not visible,” but also stated that he threw both guns out the rear window, including
one that codefendant Jones handed him from the front seat after he “gestured” for it. This too
indicates that, at some point while defendant was driving, at least one gun was visible and
suggests it was unlikely that he had no idea it was in the truck. While we do not make credibility
determinations at this stage (see People v. Sanders, 2016 IL 118123, ¶ 42), a trier of fact may
also find that this was unlikely.
¶ 36 Regardless, codefendants’ affidavits simply provide another explanation of what
happened that night because even if codefendants didn’t tell defendant about their guns, this
doesn’t establish that he never saw them in the truck. In other words, this is cumulative evidence
that is not so conclusive it would probably change the result on retrial. Accordingly, we conclude
that the trial court did not err in granting the State’s motion to dismiss on that basis.
¶ 37 B. Ineffective Assistance of Trial Counsel
¶ 38 As stated, defendant alternatively contends that a third-stage evidentiary hearing is
warranted because his postconviction petition substantially established that he was deprived of
effective assistance of trial counsel. Specifically, defendant argues that trial counsel was
ineffective for failing to either present at trial codefendants’ purported testimony that he did not
know they had guns in the truck on the night in question, or to discover it sooner because their
testimony established that he never possessed the guns; thus, he likely would not have been
convicted of being an armed habitual criminal.
¶ 39 To establish that trial counsel provided ineffective assistance, a defendant must show that
both counsel’s representation fell below an objective standard of reasonableness and that he was
prejudiced as a result of counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668(1984); Flowers, 2015 IL App (1st) 113259, ¶ 41. The failure to satisfy either prong defeats an
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ineffective assistance of counsel claim. People v. Patterson, 192 Ill. 2d 93, 107 (2000). An
evidentiary hearing is warranted only when the allegations in the postconviction petition,
supported by the trial record and accompanying affidavits, demonstrate a substantial
constitutional deprivation. Flowers, 2015 IL App (1st) 113259, ¶ 41.
¶ 40 Before we proceed to consider the merits of defendant’s argument, however, we must
first determine whether his ineffective assistance of trial counsel claim should be dismissed as
untimely. The State contends, and defendant concedes, that his petition was not timely brought
with respect to this claim.3 Defendant, nevertheless, asks that we excuse his untimeliness based
on alleged miscommunications with his former attorney, who he claims, was supposed to file the
petition.
¶ 41 Where, as here, postconviction proceedings are commenced outside the time limitation
period set forth in section 122-1 of the Act, the defendant must allege sufficient facts showing
that the delay in filing his initial petition was not due to his own culpable negligence. 725 ILCS
5/122-1(c); Flowers, 2015 IL App (1st) 113259, ¶ 43. Our supreme court has defined culpable
negligence as reckless conduct exceeding ordinary negligence, that involves a disregard of the
consequences likely to result from one’s actions. People v. Boclair, 202 Ill. 2d 89, 106 (2002).
Although we construe culpable negligence broadly to ensure that a defendant has a fair
opportunity to have his constitutional claim adjudicated, a significant delay in filing may indicate
reckless conduct on the defendant’s part. Flowers, 2015 IL App (1st) 113259, ¶¶ 44-45.
¶ 42 In this case, defendant argued that the untimely filing of his postconviction claim of
ineffective assistance of trial counsel was due to a misunderstanding between him and his former
3
Defendant’s claim of actual innocence was not subject to the postconviction proceeding time
limitations provided in section 122-1 of the Act. See 725 ILCS 5/122-1(c).
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attorney, not the result of his own culpable negligence. Defendant’s argument was supported by
two affidavits: a second one from him and one from his fiancée, Tangela Covens.
¶ 43 Both affidavits stated that, the attorney who represented defendant during the trial and
direct appeal proceedings was supposed to prepare his initial petition. 4 The attorney, however,
subsequently informed defendant that he could not prepare the petition because it required a
claim of ineffective assistance of trial counsel. The affidavits further stated that defendant
learned this information in September 2012, which was after the deadline to file his ineffective
assistance claim. 5 While this may be true, it does not explain why defendant waited nearly five
years after being informed that trial counsel could not prepare his initial petition, to file it.
Because defendant has not alleged any additional facts showing that he was not culpably
negligent for this significant delay, we fail to see how it was caused by something other than
defendant’s own recklessness; thus, we cannot excuse his untimeliness.
¶ 44 To the extent defendant asserts that his untimeliness should be excused because
codefendants’ affidavits were signed after his postconviction petition was due, this evidence
supported his claim of actual innocence which was not subject to that time limitation. See 725
ILCS 5/122-1(c) (noting that the time limitations for postconviction proceedings do not apply to
actual innocence claims).
¶ 45 Based on the foregoing, we conclude that defendant was culpably negligent in the late
filing of his postconviction claim of ineffective assistance of trial counsel. Accordingly, this
4
Interestingly, defendant’s first affidavit, which was attached to the petition in support of his
actual innocence claim, stated that he did not appear on the second day of trial because his attorney “did
not want to help” him (see supra ¶ 20). Yet, defendant acknowledged that he tried to retain the same
attorney to prepare his initial petition, in arguing that he was not culpably negligent for its untimeliness.
5
Defendant’s postconviction claim of ineffective assistance of trial counsel had to be filed in July
2012, pursuant to section 122-1 of the Act. See 725 ILCS 5/122-1(c).
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claim was properly dismissed because it was untimely; thus, we need not address the merits of
defendant’s argument that trial counsel was ineffective.
¶ 46 III. CONCLUSION
¶ 47 For the reasons set forth above, the judgment of the trial court dismissing defendant’s
postconviction petition is affirmed.
¶ 48 Affirmed.
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