People v. Smith ( 2021 )

2021 IL App (1st) 182609-UNo. 1-18-2609
Order filed June 21, 2021
First 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
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 4507
)
WAYNE SMITH, ) Honorable
) Diane G. Cannon,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Justices Hyman and Pierce concurred in the judgment.
ORDER
¶1 Held: The circuit court’s summary dismissal of defendant’s pro se postconviction petition
is affirmed where his claim for ineffective assistance of counsel is positively
rebutted by the record.
¶2 Defendant Wayne Smith appeals from the summary dismissal of his pro se petition
pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)),
No. 1-18-2609
arguing that his petition sets forth an arguable claim that his trial counsel’s ineffective assistance
caused him to waive his right to a jury trial. We affirm.
¶3 Defendant was charged with 27 counts of aggravated criminal sexual assault (720 ILCS
5/12-14 (West 2010)) and one count of unlawful restraint (720 ILCS 5/10-3(a) (West 2010))
pursuant to an incident on February 27 and 28, 2011, involving the victim T.K.
¶4 At a May 1, 2013 status hearing, the trial court asked, “bench trial indicated?” and trial
counsel responded, “Yes, judge.” On the day of trial, the trial court explained what a jury trial was,
and defendant confirmed that he understood. Defendant also confirmed that he had signed a jury
trial waiver and understood that signing the waiver meant he was not having a jury trial. Before
accepting defendant’s jury waiver, the court asked defendant whether anyone had “promised” or
“threatened” him “with anything to get [him] to give up [his] right to a trial by jury.” Defendant
responded, “No, ma’am” to each inquiry.
¶5 At trial, T.K. testified that she met defendant, whom she identified in court, through
Facebook in February 2011. On February 27, 2011, she and defendant spent the day together, and
she spent the night at his apartment, which he shared with his mother. Defendant consumed alcohol
throughout the day, and T.K. smoked marijuana at defendant’s apartment. While in defendant’s
bedroom, he attempted to choke her and “pushed [her] backwards onto the bed.” She attempted to
push him off, but became frightened because defendant reminded her “how he told [her] earlier he
had a gun and he wasn’t afraid to shoot [her].” While she laid in the bed crying, defendant engaged
in a series of sexual acts without her consent, including penetrating her anus, vagina, and mouth
with his penis. He also slapped her face and “told [her] that he loved [her] and nobody will hurt
[her] except for him.”
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¶6 When defendant eventually fell asleep, T.K. grabbed her phone, pants and shirt and “ran
out [of] the room.” Defendant woke up before she got out the door, so she ran into his mother’s
room and told her that she had been raped by her son. Defendant was standing outside the room,
so T.K. ran out of the apartment and called 911. Shortly thereafter, she flagged down a police
officer on the street, who drove her back to defendant’s home. Defendant was standing outside on
the porch and she identified him as the man who raped her. She was subsequently taken to
Roseland Hospital for treatment.
¶7 The parties stipulated that a sexual assault kit was completed at Roseland Hospital and
medical personnel observed that T.K. had abrasions on her rectum and left labia. Justine Camillo,
a forensic scientist for the Illinois State Police, examined the sexual assault kit and concluded there
was no semen on samples taken from T.K.’s mouth, vagina, or anus, and her anal swab had “blood-
like stains.”
¶8 The parties also stipulated that Robert Stanton would testify that he received a phone call
from his close friend, T.K., on February 28, 2011, at approximately 3:15 a.m. She was upset, crying
and told him she had just been raped and needed a ride home because the rapist had threatened to
kill her. Stanton went to the area of 123rd and Wallace, but could not speak to T.K. because the
police had already arrived. Finally, the parties stipulated that Chicago police lieutenant Ronald
Forgue would testify that he was driving near 123rd and Wallace on the night of the incident when
he saw T.K. running down the street. She was distraught and hysterical and yelled at Forgue, “he
raped me.” Forgue drove with T.K. back toward defendant’s home, where other officers had him
standing on the front porch. At that time, T.K. identified defendant as the man who raped her.
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¶9 N.B. testified as an other crimes witness regarding her interactions with defendant. In
October 2009, N.B. and defendant had an unpleasant and “painful” sexual encounter. The next
day, she agreed to see defendant again under the condition there would be “absolutely no sex.”
That night, defendant threatened N.B. with a firearm and told her to remove her shorts, then
vaginally and anally penetrated her against her will. During the incident, defendant told her, “I
don’t ask for p****, I take it.” N.B. called the police two days later, and went to the hospital and
underwent a sexual assault kit.
¶ 10 Defendant’s mother, Isabella Smith, testified that on the night of February 27, 2011,
defendant, T.K., and two other individuals arrived at the apartment Isabella shared with defendant.
After some time, they all left but defendant and T.K. returned approximately 15 to 20 minutes later
and went to defendant’s room. Isabella later heard what she believed was the two “having sex,”
but did not hear any sounds resembling a call for help or slapping. When she checked on them
later through the crack of defendant’s bedroom door, they were asleep in his bed. Shortly
thereafter, T.K. entered Isabella’s room, “dived into [her] bed,” whispering that defendant had
“choked her, he smacked her and he raped her.” T.K. started “hollering and screaming,” and asked
Isabella to call her a cab. Defendant entered the room and “he was like, what, are you serious.”
¶ 11 The parties stipulated that Chicago police officer Anita Williams would testify that on
February 28, 2011, she met with T.K. at 3:12 a.m. T.K. told Williams that she had wanted to spend
the night with defendant, and while in his bedroom, she removed her clothes and laid down in
defendant’s bed with him to watch television.
¶ 12 Defendant testified that at some point that evening, he and T.K. left his apartment to
purchase marijuana. They later returned and went to his bedroom, watched a movie and smoked
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No. 1-18-2609
the marijuana. They started kissing, which led to sexual intercourse. T.K. never told him to stop
during their sexual encounter. Early the next morning, T.K. “jumped up,” exited his bedroom, and
entered his mother’s room. Defendant followed T.K. and heard her “yelling” that he had raped her.
He also heard her tell someone on her phone that “he just raped me, I want you to kill him.”
Defendant called 911 on his phone and went to get dressed. He later went outside to speak further
with police on his phone. Defendant denied that he choked, slapped, or threatened T.K. with a
firearm, though he did inform her earlier that night that he had a firearm.
¶ 13 On cross-examination, defendant acknowledged that he drank alcohol from approximately
noon to 11:30 p.m. that day, but denied being intoxicated.
¶ 14 The trial court found defendant guilty of two counts of aggravated criminal sexual assault.
The court later corrected its findings to guilty of three counts of aggravated criminal sexual assault
through threat, involving contact between defendant’s penis and T.K.’s anus (count IV), vagina
(count XII), and mouth (count XXI) (720 ILCS 5/12-14(a)(3) (West 2010)). Defendant was
sentenced to consecutive 15-year sentences on counts IV, XII, and XXI, for a total of 45 years’
imprisonment. On direct appeal, his convictions were affirmed. See People v. Smith, 2017 IL App
(1st) 150234-U.
¶ 15 On August 1, 2018, defendant filed a pro se postconviction petition, claiming that trial
counsel was ineffective because, “on the day of trial,” counsel threatened to withdraw and told
defendant that if he withdrew, the trial court would not appoint new counsel. Defendant alleged
this threat forced him to waive his right to a jury trial. On October 17, 2018, the circuit court
summarily dismissed the petition, stating that it was “patently frivolous and without merit.”
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¶ 16 In this appeal, defendant asserts that his petition states an arguable claim for ineffective
assistance of counsel.
¶ 17 The Act provides a mechanism for a criminal defendant to challenge his conviction on the
basis that it violates his state or federal constitutional rights, or both. People v. Lesley, 2018 IL
122100, ¶ 31. Petitions pursuant to the Act are considered in three stages. Id. At the first stage, the
defendant need only allege the “gist” of a constitutional claim. People v. Allen, 2015 IL 113135,
¶ 24. Despite this low pleading standard, a defendant must still allege facts that are capable of
independent corroboration to support his claim. Id. If the defendant’s petition does not allege a
sufficient basis in law or fact to support his claim, the circuit court may dismiss on the basis that
the petition is “frivolous” or “patently without merit.” People v. Hodges, 234 Ill. 2d 1, 16-17
(2009). The circuit court must construe all well-pleaded allegations in favor of the defendant, but
if an allegation is positively rebutted by the record, the circuit court should not accept it. People v.
Sanders, 2016 IL 118123, ¶ 48. If the record positively rebuts a defendant’s claim, it is subject to
summary dismissal. People v. Knapp, 2020 IL 124992, ¶ 50. A trial court’s decision to summarily
dismiss a postconviction petition at the first stage is reviewed de novo. Id. ¶ 42.
¶ 18 A criminal defendant is entitled to effective assistance of counsel at trial. Strickland v.
Washington, 466 U.S. 668 (1984). To establish an ineffective assistance claim, a defendant must
demonstrate that his counsel’s conduct was objectively unreasonable, and that this conduct
prejudiced him. People v. Moore, 2020 IL 124538, ¶ 40. At the first stage of postconviction review,
the defendant need only establish arguably deficient conduct and arguable prejudice. Hodges, 234
Ill. 2d at 17.
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¶ 19 Defendant’s claim that his trial counsel was ineffective implicates his right to a trial by
jury. A criminal defendant has the right to a trial by jury. U.S. Const., amends VI, XIV; Ill. Const.
1970, art. I, §§ 8, 13. A defendant can waive this right, but only if he does so knowingly and
voluntarily. People v. Bracey, 213 Ill. 2d 265, 269 (2004). The trial court has a duty to ensure the
defendant’s waiver is proper, but there is not a precise formula for the admonishments the court
must provide. People v. Bannister, 232 Ill. 2d 52, 66 (2008). That a defendant signed a jury waiver
form is not conclusive of his knowing and voluntary decision to waive his right to a jury trial, but
it may constitute evidence of the defendant’s intent. Bracey, 213 Ill. 2d at 270-71. Where a
defendant claims his counsel’s ineffective assistance caused him to improperly waive his right to
a jury trial, the defendant can establish prejudice by demonstrating a reasonable probability that
but for the deficient conduct, the defendant would have proceeded by jury trial. People v. Todd,
178 Ill. 2d 297, 318 (1997).
¶ 20 Here, defendant claims that trial counsel forced him to involuntarily waive his right to a
jury trial by threatening to withdraw on the day of trial. Defendant further alleges that counsel
informed him that the trial court would not appoint a new attorney if he withdrew. Immediately
prior to trial, the court asked defendant if he had signed a jury waiver. Defendant affirmed. The
court then inquired whether defendant understood he had a right to a jury trial. Defendant again
affirmed. Finally, the court asked whether anyone had made any promises or threats to procure
defendant’s jury trial waiver, and defendant responded, “No, ma’am.”
¶ 21 We find that the circuit court did not err in summarily dismissing defendant’s petition
because his claim for ineffective assistance is positively rebutted by the record. The State argues,
and we agree, that the supreme court’s recent decision in Knapp supports this result.
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¶ 22 In Knapp, the defendant claimed in his postconviction petition that he unknowingly and
involuntarily waived his right to testify due to trial counsel’s ineffective assistance. Knapp, 2020
IL 124992, ¶ 33. At trial, defendant advised the court that he understood the decision whether to
testify was his and his alone. Id. ¶ 26. The circuit court dismissed the petition at the first stage, the
appellate court affirmed, and the supreme court affirmed the appellate court’s judgment. Id. ¶¶ 2,
35. The supreme court explained that because the trial court informed the defendant that he had a
right to testify, and the defendant affirmed that he did not want to testify at a proceeding subsequent
to counsel’s allegedly deficient conduct, the record positively rebutted the defendant’s ineffective
assistance claim such that it was subject to summary dismissal. Id. ¶¶ 51-54, 58. In so ruling, the
supreme court explained, “petitioner’s responses during the trial court’s admonishments
unequivocally rebut his allegations that his decision not to testify was involuntary or based on
allegedly erroneous advice from counsel.” Id. ¶ 54.
¶ 23 Similarly, defendant claims that he did not make a knowing and voluntary jury waiver
because his counsel made threats to procure his waiver. But subsequent to the alleged threats, in
response to admonishments from the trial court, defendant stated unequivocally that he had not
been threatened or promised anything in exchange for his jury trial waiver. Thus, as in Knapp,
defendant’s responses in open court rebut his claim that he involuntarily waived his right to a jury
trial. It follows that defendant’s claim is positively rebutted by the record.
¶ 24 For the foregoing reasons, the circuit court’s summary dismissal is affirmed.
¶ 25 Affirmed.
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