People v. McDonald , 2021 IL App (1st) 190687 ( 2021 )

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Appellate Court Date: 2022.07.13
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People v. McDonald, 2021 IL App (1st) 190687Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD McDONALD, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-19-0687
Filed June 30, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 94-CR-8118; the
Review Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Douglas R. Hoff, and Andrew Thomas Moore, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Assistant State’s Attorney, of counsel), for the People.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Lampkin and Martin concurred in the judgment and opinion.
OPINION
¶1 Defendant, Donald McDonald, was convicted in 1995, after a jury trial, of the criminal
sexual assault of his underage stepdaughter and sentenced, as a habitual offender, to a term of
natural life in prison. Defendant presently appeals a trial court’s order denying him leave to
file his seventh postconviction petition. 1
¶2 In the court below, defendant, who was represented by counsel, sought to file a petition
alleging that his trial and appellate attorneys were ineffective for failing to argue that deviate
sexual assault was not an eligible predicate offense for habitual-offender status. Defendant was
sentenced as a habitual offender based on prior criminal convictions that included a conviction
for deviate sexual assault.
¶3 Defendant acknowledges that several appellate court cases, including three from this
district, have found that deviate sexual assault is an eligible predicate offense, but he asks us
to find that our precedent was wrongfully decided. The State argues that defendant has failed
to show both the cause and prejudice needed to file this petition (1) where he failed to show
cause why he could not have filed his claim earlier in any of his prior petitions and (2) where
he failed to show prejudice from his attorneys’ alleged failure to raise this claim since, as he
readily acknowledges, the precedent was not in his favor.
¶4 For the following reasons, we find that defendant failed to show cause and prejudice, and
therefore, we affirm the trial court’s order denying him leave to file his current postconviction
petition.
¶5 BACKGROUND
¶6 On this appeal, defendant does not challenge either the sufficiency of the State’s evidence
at trial or the admissibility of any specific piece of evidence or testimony admitted at trial. The
single issue that he raises is purely a legal question regarding sentencing. Thus, a detailed
description of the evidence at trial is not needed to resolve the issues on this appeal.
¶7 In sum, the conviction in the case at bar stems from a sexual assault by defendant of a 14-
year-old victim in 1993. Six years earlier, in 1987, defendant had been convicted of an
aggravated criminal sexual assault of the same victim, when she was then seven years old.
¶8 At trial, an assistant state’s attorney testified that defendant signed a handwritten statement
which stated that, in June 1993, defendant was employed to perform some cleaning work at a
particular building; that he went with the victim and two of her uncles to the building, that the
men drank for several hours, and that defendant took the victim to an empty apartment in the
building where he engaged in sexual intercourse with her. A police officer also testified at trial
that defendant admitted to him that, at the time of the incident, defendant had been drinking,
that he had traveled with the victim to a particular address where he told the victim to remove
her clothes, and that he had sexual relations with her.
¶9 The victim testified that she went with defendant and her two uncles to the building, that
the men had been drinking, that defendant told her to go to a particular apartment, that
1
In his brief to this court, defendant refers to the instant petition as his fifth successive
postconviction petition. However, his brief refers to two different petitions as his “fifth.” While this
instant petition is his sixth successive petition, there were seven petitions overall.
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defendant removed her clothes and engaged in sexual intercourse with her, and that defendant
had sexual contact with her four times in 1987 when she was seven years old.
¶ 10 On June 6, 1995, the jury, after listening to arguments and jury instructions, found
defendant guilty of criminal sexual assault. On July 6, 1995, the State filed a petition asking
the trial court to find that defendant was a habitual criminal based on the following prior
convictions: (1) a conviction on September 2, 1982, of deviate sexual assault; (2) a conviction
on June 1, 1987, of aggravated criminal sexual assault; and (3) a conviction on January 29,
1988, of aggravated criminal sexual assault.
¶ 11 On July 17, 1995, at the sentencing hearing, the parties did not make any requests to correct
the presentence investigative report (PSI). The PSI indicated that defendant had one juvenile
adjudication in 1981, when he was 17 years old, for criminal sexual assault. In addition to the
instant offense, the PSI indicated that defendant had convictions in 1982 for deviate sexual
assault and indecent liberties with a child and had a conviction in 1988 for aggravated criminal
sexual assault.
¶ 12 Defendant’s probation from the juvenile adjudication terminated on September 27, 1982.
The PSI indicates that defendant was found guilty of the 1982 adult charges on September 8,
1982, which was before the juvenile probation ended. With respect to the 1982 convictions,
defendant was paroled on January 17, 1985. Three years later, on January 29, 1988, defendant
pled guilty to aggravated criminal sexual assault. On July 1, 1992, he was paroled, and less
than a year later, the events giving rise to the instant offense occurred. In June 1993, when
these events occurred, defendant was 29 years old.
¶ 13 At the sentencing hearing, the State moved the trial court “to take judicial notice of the fact
that the elements of deviate sexual assault are the same as the crime which is now classified in
Illinois as criminal sexual assault.” Defense counsel made no objection, and the trial court
found that “[t]he Court will take judicial notice of the fact.”
¶ 14 After the trial court took judicial notice, the State argued that the “two predicate offenses
which [the State] submit[s] to the Court” were (1) the 1982 conviction for deviate sexual
assault and (2) the 1988 conviction for aggravated criminal sexual assault. Based on these two
convictions, plus the conviction in the instant case, the State asked the trial court to adjudge
defendant to be a habitual criminal. In response, defense counsel stated: “Judge, I know that
the Court’s hands are tied certainly in terms of sentencing.”
¶ 15 The trial court found:
“Well, the defendant stands before the Court following a finding of guilty, a verdict
of guilty by a jury, of the offense of criminal sexual assault.
The State seeks to have him sentenced as a habitual offender. Inasmuch as this is
his third offense, that would qualify for habitual criminal treatment, the first having
occurred in 1982, on a judgment for deviate sexual assault.
This offense was committed within 20 years of the judgment entered in that case.
The second offense, which is a 1987[2] conviction was committed after judgment
was entered on the first.
And the third offense was committed after judgment was entered on the second; all
this occurring after the effective date of this act, which was in 1978.
2
The trial court stated 1987 not 1988.
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And the State has established beyond a reasonable doubt the defendant’s eligibility
to be treated in this matter, and the Court is mandated by the Legislature to impose a
sentence of life imprisonment, which the Court will do at this time.”
As noted above, the issue defendant raises on this appeal is the purely legal question of whether
deviate sexual assault was an eligible predicate offense for the habitual-offender status that
subjected him to natural life in prison. The sentencing court found that it was, and he argues
here that it was not.
¶ 16 After being sentenced in the case at bar, defendant filed a direct appeal, three section 2-
1401 petitions (735 ILCS 5/2-1401 (West 2018)) to vacate his sentence, and a federal
habeas corpus petition and attempted to file seven postconviction petitions, including the one
at bar.
¶ 17 Unlike his prior petitions, the instant petition was not pro se, and it alleged that defendant’s
prior attorneys were ineffective for failing to argue that his life sentence was improper because
his conviction for deviate sexual assault did not meet the criteria set forth in the habitual
criminal statute. The trial court denied defendant’s motion for leave to file in a seven-page
written order. Citing two prior appellate court cases that found that deviate sexual assault had
the same elements as criminal sexual assault, the trial court found defendant’s allegations
“without merit.” See People v. Balle, 379 Ill. App. 3d 146, 152 (2008); People v. Cardenas,
209 Ill. App. 3d 217, 232 (1991).
¶ 18 The trial court found that defendant’s prior counsel could not be found ineffective for
failing to raise a meritless argument. Further, defendant was not prejudiced since the result of
the sentencing hearing would have been the same.
¶ 19 After filing a notice of appeal, private counsel moved to withdraw on June 7, 2019, and the
State Appellate Defender was appointed by this court on June 19, 2019, to represent defendant
on this appeal.
¶ 20 ANALYSIS
¶ 21 I. Successive Petition
¶ 22 Defendant submitted his petition pursuant to the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2018)), which provides a statutory remedy for criminal defendants
who claim that their constitutional rights were violated at trial. People v. Edwards, 2012 IL
111711, ¶ 21.
¶ 23 Although our supreme court has made clear that the Act contemplates only one
postconviction proceeding, “[n]evertheless, [the supreme] court has, in its case law, provided
two bases upon which the bar against successive proceedings will be relaxed.” Edwards, 2012
IL 111711, ¶ 22. Those two bases are alleging and showing (1) cause and prejudice and
(2) actual innocence. Edwards, 2012 IL 111711, ¶¶ 22-23. Defendant, who is attempting to file
a successive petition, has alleged only cause and prejudice.
¶ 24 At this early stage, when a defendant is merely seeking leave to file, he has to make only
“a prima facie showing of cause and prejudice.” People v. Bailey, 2017 IL 121450, ¶ 24.
¶ 25 Under the cause-and-prejudice test, a defendant must establish both (1) cause for his or her
failure to raise the claim earlier and (2) prejudice stemming from his or her failure to do so.
Edwards, 2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)).
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¶ 26 To determine whether this defendant made a prima facie showing, we apply a de novo
standard of review. Bailey, 2017 IL 121450, ¶ 13. De novo consideration means that a
reviewing court performs the same analysis that a trial judge would perform. People v. Van
Dyke, 2020 IL App (1st) 191384, ¶ 41.
¶ 27 II. Strickland
¶ 28 Defendant claims that his prior attorneys were ineffective for failing to raise the claim that
he raises now.
¶ 29 To determine whether a defendant was denied his or her right to effective assistance of
counsel, Illinois courts employ the familiar two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). People v. Domagala, 2013 IL 113688, ¶ 36. Under
Strickland, a defendant must prove both (1) that his or her attorney’s actions constituted errors
so serious as to fall below an objective standard of reasonableness and (2) that, absent these
errors, there is a reasonable probability that the outcome would have been different. Domagala,
2013 IL 113688, ¶ 36.
¶ 30 To establish the first prong, a defendant must show “that counsel’s performance was
objectively unreasonable under prevailing professional norms.” Domagala, 2013 IL 113688,
¶ 36. “[E]ffective assistance of counsel refers to competent, not perfect, representation.”
People v. Palmer, 162 Ill. 2d 465, 476 (1994); People v. Stewart, 104 Ill. 2d 463, 491-92
(1984). Since a defendant is “entitled to reasonable, not perfect, representation,” “mistakes in
strategy or in judgment do not, of themselves, render the representation incompetent.” People
v. Fuller, 205 Ill. 2d 308, 331 (2002). A defendant must overcome “the strong presumption
that counsel’s performance fell within a wide range of reasonable professional assistance.”
Palmer, 162 Ill. 2d at 476.
¶ 31 With respect to the second prong, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome, namely, that counsel’s deficient performance rendered
the result of the trial unreliable or the proceeding fundamentally unfair.” People v. Enis, 194
Ill. 2d 361, 376 (2000). Although the Strickland test is a two-prong test, our analysis may
proceed in any order. To prevail, a defendant must satisfy both prongs. People v. Colon, 225
Ill. 2d 125, 135 (2007); People v. Evans, 209 Ill. 2d 194, 220 (2004). Thus, if a defendant
cannot satisfy one prong, no further analysis is needed. People v. Graham, 206 Ill. 2d 465, 476
(2003).
¶ 32 Defendant alleges the ineffectiveness of both his trial and appellate counsel. “The
Strickland standard applies equally” to claims concerning trial and appellate counsel. People
v. Petrenko, 237 Ill. 2d 490, 497 (2010). If a defendant claims that appellate counsel was
ineffective for failing to raise a claim of trial error, a defendant must show not only that
appellate counsel’s performance was deficient but also that there is a reasonable probability
that the underlying claim of trial error would have succeeded on direct appeal in order to satisfy
the prejudice prong. See Petrenko, 237 Ill. 2d at 497. If the underlying claim would not have
succeeded on direct appeal, then “there is no arguable legal basis” for defendant’s claim of
ineffective assistance of appellate counsel, and “summary dismissal of his pro se
postconviction [petition]” is “proper.” Petrenko, 237 Ill. 2d at 501-02.
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¶ 33 III. Forfeiture
¶ 34 In considering whether defendant’s appellate counsel was ineffective for failing to raise
the current claim, we find that this court would have applied plain-error review to the claim if
it had been raised on direct appeal.
¶ 35 Whether a reviewing court applies harmless-error or plain-error review depends on whether
the defendant forfeited review of the issue in the court below. People v. Thompson, 238 Ill. 2d
598, 611 (2010). Generally, to preserve an alleged error for review, a “defendant must both
specifically object at trial and raise the specific issue again in a posttrial motion.” People v.
Woods, 214 Ill. 2d 455, 470 (2005); People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). “[T]o
preserve a claim of sentencing error, both a contemporaneous objection and a written
postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 539, 544
(2010). If a claim is preserved, the burden is on the State “to prove beyond a reasonable doubt
that no prejudice occurred.” People v. McLaurin, 235 Ill. 2d 478, 494-95 (2009).
¶ 36 However, in the case at bar, defendant concedes that the alleged error was not preserved.
Thus, if it had been raised on direct appeal, we could have reviewed it only for plain error. “To
obtain relief under this [plain-error] rule, a defendant must first show that a clear or obvious
error occurred.” Hillier, 237 Ill. 2d at 545. “In the sentencing context, a defendant must then
show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the
error was so egregious as to deny the defendant a fair sentencing hearing.” Hillier, 237 Ill. 2d
at 545. For the reasons explained below, we find no clear or obvious error.
¶ 37 IV. Predicate Offense
¶ 38 In its brief to this court, the State cites several cases that were decided prior to the date of
defendant’s 1995 sentencing and that found that deviate sexual assault was a predicate offense
for habitual offender status. Cardenas, 209 Ill. App. 3d at 232 (this court found that deviate
sexual assault was a predicate offense for habitual offender status); People v. Tobias, 125 Ill.
App. 3d 234, 239 (1984) (this court found that deviate sexual assault “satisfies the prerequisite
statutory standards for application of the [Habitual Criminal] Act”); People v. Withers, 115 Ill.
App. 3d 1077, 1086-87 (1983) (this court found that deviate sexual assault “satisfies ***
prerequisite statutory standards for application of the act”); see also Balle, 379 Ill. App. 3d at
153 (this court found that “deviate sexual assault, despite being reclassified as criminal sexual
assault, a Class 1 felony, in a 1984 amendment [citation], is sufficient to satisfy the sentencing
conditions under the Habitual Criminal Act prior to its 1988 amendment”); People v. Sims, 166
Ill. App. 3d 289, 303-04 (1987).
¶ 39 In his reply brief, defendant acknowledges that these cases were “precedent” and were “not
in his favor,” but he argues that they were all decided incorrectly.
¶ 40 Where there was substantial precedent existing at the time of defendant’s sentencing and
it all went the other way, we cannot find that his trial counsel rendered objectively unreasonable
assistance by not objecting on this basis or that trial counsel’s performance fell below
prevailing professional norms. See Domagala, 2013 IL 113688, ¶ 36 (to establish the first
prong, a defendant must show “that counsel’s performance was objectively unreasonable under
prevailing professional norms”).
¶ 41 Where the underlying claim of ineffective assistance by trial counsel would not have
succeeded, there is no arguable basis for a claim that appellate counsel was ineffective.
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Petrenko, 237 Ill. 2d at 501-02 (if the underlying claim would not have succeeded on direct
appeal, then “there is no arguable legal basis” for defendant’s claim of ineffective assistance
of appellate counsel and “summary dismissal of his pro se postconviction [petition]” is
“proper”). In addition, because of the substantial existing precedent, there was no clear or
obvious error with counsel’s representation that would trigger application of the plain-error
doctrine. Hillier, 237 Ill. 2d at 545 (“To obtain relief under this [plain-error] rule, a defendant
must first show that a clear or obvious error occurred.”). We decline defendant’s invitation to
find that this court’s extensive precedent was wrongly decided.
¶ 42 As a result, we do not find his current claims of ineffective assistance of trial and appellate
counsel persuasive.
¶ 43 Defendant also asks us to reach the forfeited issue he now raises because otherwise his life
sentence will violate fundamental fairness and the eighth amendment’s prohibition against
cruel and unusual punishment. See U.S. Const., amend. VIII. We cannot find that it does, where
defendant was 29 years old at the time of the instant offense and had already established a
pattern of engaging in sexual assaults, which indicates he was a repeat offender. In 1981, when
he was 17 years old, defendant had a juvenile adjudication for criminal sexual assault. Before
his probation from the juvenile adjudication ended, defendant was found guilty of deviate
sexual assault and indecent liberties with a child. Three years after he was paroled from those
offenses, he pled guilty in 1988 to aggravated criminal sexual assault. Less than a year after he
was paroled from the 1988 offense, he committed the instant sexual assault. Thus, we are not
persuaded to reach the forfeited issue under fundamental fairness or the eighth amendment.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we affirm the trial court’s order denying him leave to file his
seventh postconviction petition.
¶ 46 Affirmed.
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