People v. Brown , 2015 IL App (1st) 122940 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Brown, 2015 IL App (1st) 122940
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ISAIAH BROWN, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-12-2940
Filed March 11, 2015
Rehearing denied May 12, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-
Review 18719(02); the Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Therese Bissell, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Isaiah Brown, appeals from the second-stage dismissal of his petition for relief
under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)),
following his conviction for unlawful use of a weapon by a felon. Brown contends the trial
court erred in dismissing his petition without an evidentiary hearing because he made a
substantial showing of a constitutional violation where trial counsel was ineffective for failing
(a) to investigate and present four witnesses whose testimony would have supported the one
defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of
the State’s guilty plea offer and the extended sentence he faced if convicted at trial. And, trial
counsel was ineffective because she labored under a conflict of interest by also representing
Omar Young, another man arrested at the scene and a potential defense witness. Brown further
argues the trial court demonstrated bias against him by prejudging his case and asks this court
to remand his cause for an evidentiary hearing before a different judge.
¶2 We affirm. The trial court properly dismissed Brown’s second-stage postconviction
petition. The allegations in Brown’s petition, with his supporting documentation, fail to make a
substantial showing of any constitutional deprivation to warrant a third-stage proceeding when
viewed against the full and complete record before us.
¶3 BACKGROUND
¶4 Following a jury trial, Brown was convicted of unlawful use of a weapon by a felon
(UUWF). Initially, the court sentenced Brown to 18 years in prison, but following a motion to
reconsider, imposed a 13-year sentence. We affirmed his conviction and sentence on direct
appeal. People v. Brown, No. 1-09-1826 (Oct. 13, 2010) (unpublished order under Supreme
Court Rule 23(c)(7)).
¶5 Trial Proceedings
¶6 On September 11, 2008, at 3:30 p.m., Chicago police officer Elizabeth Ayala responded to
a neighbor’s call that a man was standing on the porch of 167 North Lockwood, Chicago, with
a machine gun. Officer Ayala was the first officer to arrive at the two-story brownstone. She
saw six men in front of the house–three on the porch (Omar Young, Elliot Harper and Isaiah
Brown) and three in front of the porch. Officer Ayala approached the house through the front
gate, and as she did, she saw the barrel of an assault rifle sticking out of Harper’s shirt. Officer
Ayala drew her gun and told the six men to get to the ground.
¶7 According to Ayala, Harper and Brown reacted slowly to her instruction. Officer Ayala
testified Brown had a 9-millimeter handgun. She watched him as he moved to the side of the
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porch, leaned over, and dropped the gun out of his hand. Brown then set the beer bottle he had
in his other hand on the stoop before lying on the ground.
¶8 Officer Ayala secured Harper’s weapon by grabbing the barrel of the gun as she aimed her
gun at him.
¶9 Officer Ayala testified she never lost sight of the handgun Brown dropped and that she
instructed Officer Michael Petrusonis, who had arrived on the scene, to secure the gun.
Petrusonis recovered and secured the loaded gun. He showed the gun to Officer Ayala, who
confirmed it was the one Brown dropped. The police arrested all six men, including Brown and
Harper, and transported them to the police station. The police inventoried the gun and the
bullets that had been removed from it. The 9-millimeter gun was never fingerprinted.
¶ 10 On October 1, 2008, the State charged Brown with two counts each of UUWF and
aggravated unlawful use of a weapon (AUUW) and codefendant Harper with two counts of
AUUW. Harper pled guilty to one count of AUUW; Brown proceeded to a jury trial.
¶ 11 At trial, Officer Ayala identified Brown as the individual who had dropped the loaded
handgun recovered by Officer Petrusonis. Petrusonis testified he recovered, secured, and
inventoried the handgun and the bullets it contained. Brown moved for a directed finding,
which the court denied.
¶ 12 Teona Henry, Brown’s first cousin, testified for the defense that Brown did not have a gun
that day and that another man, “Omar,” dropped the gun the police recovered. Henry testified
she lived at 167 North Lockwood, on the second floor, with her grandmother living below her
on the first floor. Henry arrived home that day shortly after 3 p.m. and parked her car in the
alley. At the same time, Brown, his wife, and their son drove up and parked in the alley as well.
Henry testified she walked with Brown and his family through the gangway and entered the
yard of their grandmother’s home. They observed some men standing on the porch, but Henry
testified it was common for men to hang out on the home’s porch when no one was home.
¶ 13 Henry testified that when she first arrived at the house, she saw Harper with a gun strapped
to his back. She told Brown to tell the men to get off the porch. Brown’s wife and son went in
the house. Henry followed and was about to walk through the door when the police arrived.
She testified that Officer Ayala came through the yard with her gun drawn and instructed
everyone to get on the ground. Henry stood still in front of the door. She testified Harper,
Young, and a man named Jeremy were on the porch and a few other people were near the steps
leading up to the porch, including Brown, who was at the banister near the gangway.
¶ 14 When Officer Ayala arrived, Henry saw Young take a gun out of the front of his pants, put
his hand on the side of the banister and drop the gun. Henry testified she never saw Brown with
a gun in his hand, only a beer.
¶ 15 Brown did not testify.
¶ 16 The jury found Brown guilty of UUWF. The court denied Brown’s motion for a new trial
and proceeded to sentencing.
¶ 17 The State argued Brown was “Class X mandatory” because this was his third Class 2
conviction. The State informed the court of Brown’s criminal history, including: (1) Class 1
possession of a controlled substance, for which he received probation that was terminated
unsuccessfully; (2) Class 2 delivery of a controlled substance, for which he received Cook
County boot camp; (3) forgery, for which he received probation that was terminated
unsuccessfully; and (4) federal possession of explosive devices, for which he was sentenced to
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28 months and 15 days in federal prison. The State argued the sentencing range should be 6 to
30 years and asked that a 6-year sentence be imposed.
¶ 18 Defense counsel argued the sentencing range should be three to seven years, the range for a
Class 2 felony, and asked for the minimum. In mitigation, defense counsel argued Brown was
a working father of three who supported his family and might have a problem with alcohol.
Brown spoke, denying any wrongdoing and stated his trial counsel, Dawn Projansky, “did a
good job” and he “believed in her and trusted her judgment to go for a jury trial. She worked so
hard for me and, she did her best and I thank her again.”
¶ 19 The trial court found the sentencing range to be 6 to 30 years and sentenced Brown as a
Class X offender to 18 years’ imprisonment.
¶ 20 Defense counsel moved to have the sentence reconsidered, arguing that Class X sentencing
was an unauthorized “double upgrade.” Following a hearing, the court found Brown was not
subject to Class X sentencing. The court held the sentencing range was 3 to 14 years and
resentenced Brown to 13 years for UUWF.
¶ 21 Direct Appeal
¶ 22 On direct appeal, Brown argued the trial court abused its discretion in sentencing him to an
“excessive” sentence of 13 years. We affirmed the sentencing, finding the trial court properly
considered the aggravating and mitigating factors presented by the parties and Brown’s
significant criminal history. People v. Brown, No. 1-09-1826 (Oct. 13, 2010) (unpublished
order under Supreme Court Rule 23(c)(7)).
¶ 23 Postconviction Proceedings
¶ 24 Brown retained private counsel, Scott Frankel, and filed his petition for postconviction
relief on June 30, 2011. In his initial petition, Brown argued his trial counsel, Dawn Projansky,
was ineffective for failing to (1) communicate the State offered a three-year sentence in
exchange for Brown’s guilty plea, (2) fully advise Brown of the extended sentence he faced,
because of his background, if convicted, and (3) conduct a reasonable investigation and present
the testimony of potential witnesses–Stephanie Adams, Omar Young and Arnold Misher–who
would have testified Brown never possessed a gun during the incident.
¶ 25 As support, Brown attached his own affidavit, as well as one from Projansky, and potential
witness Arnold Misher. He also included a handwritten statement captioned “affidavit”
attributed to Stephanie Adams.
¶ 26 Brown attested he told trial counsel that “Omar Young was the person that had the 9 mm on
the night in question” and that “Young would testify to him having and tossing the gun on the
night on September 11, 2008. My lawyer told me he is a trouble maker so she won’t call him to
testify at my Trial.” Brown claimed trial counsel “never brought me a plea offer of 3 years by
the State, or made no mention of this.” Brown did not state, however, that he would have
accepted the offer.
¶ 27 In her affidavit, Projansky stated that throughout her representation of Brown, she “was
concerned about the fact that he was on federal parole.” She “often spoke to” Brown’s federal
probation/parole officer and the attorney appointed to represent him in his federal case about
the consequences of Brown’s state criminal case. Projansky claimed that “[b]eing aware of the
serious consequences of entering a plea of guilty in [defendant’s] State case[,] a plea offer was
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rejected and the case proceeded with a jury trial.” She could not recall any specific
conversations with Brown “that his criminal background could place him in the situation that
he could receive an extended sentence if found guilty” at trial. She claimed her “focus was on
the federal consequences of entering a guilty plea” and that at “no time did [defendant] state
that he was interested in accepting the State’s offer of 3 years IDOC.” She claimed that any
plea agreement would have resulted in violation of his federal parole and led to incarceration in
federal prison.
¶ 28 In his affidavit, Arnold Misher attested that on September 11, 2008, he was on his mother’s
front porch at 163 North Lockwood and saw several men on or near the front porch next door at
167 North Lockwood. Misher saw Brown, along with two women and a child, exit a car and
walk up to the house. Brown was drinking something in a brown paper bag. As he approached
the house, Brown told the men to move away. Then, a police car pulled up and the men
standing around the house scattered. An officer got out of her car, drew her weapon and
ordered everyone to the ground. Misher heard Brown try to explain that it was his
grandmother’s house, but the “officer told him to shut up and snatched a bottle that he was
holding out of his hand and made him get on the ground.” Misher saw the men on the porch lie
down and then the officer walk up to one of them and grab a gun from under his shirt. While
Brown was out on bond, Misher spoke to him and Projansky and indicated his willingness to
be a witness at Brown’s trial.
¶ 29 The document Brown characterized as Stephanie Adams’ “affidavit” is not notarized,
dated, or signed. Adams stated she was at a friend’s house on Lockwood when she looked out
the window and saw a man wearing a white shirt, standing in front of a gate, with a machine
gun. Adams called the police. The police arrived and arrested all of the men on the porch. Her
statement does not mention Brown or any dates or times. She does not indicate whether she
would be willing to testify at Brown’s trial or during postconviction proceedings.
¶ 30 In January 2012, counsel amended Brown’s postconviction petition and filed additional
supporting evidence. In his amended petition, Brown alleges he is innocent given the affidavit
of Omar Young. Brown also alleges his trial counsel was ineffective for failing to present the
testimony of Young at trial and that Young’s testimony would have established that Brown
never possessed the weapon recovered at the scene because “Young admits that he possessed
the weapon.” Brown further alleges counsel was ineffective because she labored under a
conflict of interest by representing Omar Young as well as Brown. Brown also included the
allegations from his original petition–his claims that trial counsel was ineffective for failing to:
(1) communicate the State’s three-year plea offer, (2) advise him of the potential extended
sentence he faced if convicted, and (3) interview available witnesses: Adams, Misher and
Young, who would have corroborated Henry’s trial testimony that Brown did not have a gun.
¶ 31 Brown attached six supporting documents to his petition. The three affidavits and Adams’
statement, which were attached to his original petition, as well as two additional
“affidavits”–from Omar Young and Curtis Brown.
¶ 32 Similar to Adams’ statement, the document captioned “Affidavit of Omar Young” is not
notarized. It states that at 3:30 p.m. on September 11, 2008, Young was on the porch at 167
North Lockwood when a female officer approached and ordered him to the ground. Brown was
present and had a beer in his hand. Young never saw Brown with a gun in his hand and claimed
the gun the police found “was not Isaiah Brown’s gun.” Young indicated “[I] would have
testified at Curtis Brown’s trial if I had been asked to testify. At the time of the trial I was
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represented by Dawn Projansky. She told me that she would not put me on the witness stand
because of the case I was fighting at the time.” (In the document, the typewritten “Curtis” has a
line drawn through it, but there are no initials or any other mark next to the strikethrough.)
¶ 33 In his statement, also entitled “Affidavit,” but not notarized, Curtis Brown claimed he was
in the area that afternoon to sell shoes. He recalled a female officer approaching him and
ordering him inside the gate at 167 North Lockwood and to the ground. Curtis claims Brown
was on the scene with a beer in his hand, but Curtis never saw him with a gun. Curtis states he
would have testified on behalf of Brown at trial if he had been asked.
¶ 34 As support for his amended petition, Brown also included a compact disc containing audio
recordings of telephone conversations he had with Projansky on June 27, 2009, and January
30, 2011. In their final conversation, after counsel had prepared her postconviction affidavit,
Brown called counsel to express his disappointment in her affidavit. Projansky explained that
she recalled she had informed him of the State’s plea offer of three years and he had refused to
accept it because of his federal case. She said her recollection was consistent with her records
of her representation of him in this matter. She stated they feared that a guilty plea in this case
would have led to a greater federal prison sentence. She informed Brown she never would have
made the decision to reject the State’s offer without his consent because it was his decision and
she would never force that decision on a client. When Brown complained about the content of
her affidavit, she explained that she refused to put statements in her affidavit that he wanted her
to say. She told Brown the affidavit was her recollection and that she would not lie in it and risk
losing her law license. Projansky told Brown he could choose not to use her affidavit if he did
not like it.
¶ 35 The State moved to dismiss Brown’s amended postconviction petition, arguing Brown’s
claim of actual innocence based on Omar Young’s alleged culpability failed because Young’s
testimony was not newly discovered–Young had been available to testify at trial. The State
informed the court that a charge of misdemeanor reckless conduct against Young had been
dismissed on September 9, 2008, and the case could not have been reinstated after February 15,
2009 (when the 160-day period of reinstatement expired). Brown’s trial began on May 6, 2009.
The State further argued that Young’s proposed testimony could not support a claim of actual
innocence due to Young not saying what Brown’s petition claims Young said–i.e. that Young
possessed the gun. In his statement, Young never acknowledged that he had the gun (his
statement only says Brown did not have the gun) and his proposed testimony would have
conflicted with the actual testimony of defense witness Henry who testified at trial that “Omar”
dropped the gun the police recovered.
¶ 36 The State further argued that Brown’s claim that trial counsel did not tell him of the State’s
plea offer should be dismissed because it was not true. The State argued Projansky’s affidavit
rebutted Brown’s claim. The State also argued Brown’s claim that Projansky failed to tell him
he could receive an extended sentence based on his background should also be dismissed
because Brown failed to offer any support for it. The State argued Brown’s claim that counsel
was ineffective for failing to investigate the potential defense witnesses was insufficiently
supported and a matter of trial strategy. Lastly, the State contended that Brown’s conflict of
interest claim likewise fails because there was no evidence to support the claim that Projansky
represented Young and Brown at the same time.
¶ 37 During defense counsel’s argument regarding whether Brown knew of the State’s plea
offer, the court interjected, stating:
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“What am I supposed to do if I tell you there was no way on earth–first, I distinctly
recall it. You’re right, I mean I didn’t leave that on the record. But, secondly, I got to
tell you that it’s a matter of course in this courtroom, that every single person prior to
the selection of a jury in a case, is informed of whatever the last offer was and given
one last opportunity to review, accept or reject it.
It’s an affidavit of your client. You know, I’m putting the cart before the horse and
indicating my view, it’s perjurious for [Brown] to say that he was never told the
[State’s offer]. I could tell you with absolute certainty that he was not rushed to trial,
absolute certainty.
***
I know my not leaving it on the record makes it very hard for you. I apologize for
that. That’s my error.”
¶ 38 Concerning whether Brown was informed that he could face an extended sentence, defense
counsel asked the court to take judicial notice of the fact that Brown “ended up taking 36
months concurrent time on that [federal] parole violation after this Court sentenced him.”
Defense counsel went on to argue that the strongest basis for Brown’s ineffective assistance of
counsel claim was his allegation that Projansky labored under a conflict of interest by
representing him and Young at the same time.
¶ 39 The trial court granted the State’s motion to dismiss Brown’s postconviction petition at the
second stage. The court found Projansky was not ineffective for failing to call Brown’s
proposed witnesses. The court found Brown’s claim that his trial counsel did not communicate
the State’s plea agreement to him conflicted with what Brown said in the recordings of his
telephone conversations with Projansky. The court also stated that it knew Brown had been
informed of the State’s plea offer because it was the court’s policy to make sure defendants
were aware of any pending offer before trial and what sentence he or she faced if convicted:
“I’m most antagonized by the issue that he asserts that he never received the offer
of three years, which is complete balderdash. *** It fails because I know that he
received the offer. It fails because I know that he didn’t accept the offer. It fails because
I know that an offer was made in this case, and it also fails because in every single case
which I’ve ever selected a jury, with the exception of capital cases or first degree
murder cases, I have a conversation with individuals, particularly people in Mr.
Brown’s circumstances that are facing a minimum period of incarceration should they
be convicted regarding what the sentencing parameters are or what the offer is.
***
*** [T]he issue of whether or not [the petition] should be granted or should we have
a hearing on the post conviction petition of whether or not he received an offer is
denied.”
The court also agreed with the State that Projansky’s representation of Omar Young ended
“before the date of trial, so that there was no conflict of interest.”
¶ 40 The trial court dismissed Brown’s petition and informed him of his right to appeal. Brown
interrupted and addressed the court:
“[Ms. Projansky] told me that I was only looking at three to seven years. All the
extra time, I would been gone for three and half-years. *** I wasn’t aware that I was
looking at all that time.”
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The court responded:
“This is another example of an absolute lie on your part. I shared this with you at
the time of your hearing. I recall this conversation with you. You have an absolute fear
of the truth. Because I can tell you with complete certainty that I told you then, and I
will tell you one last time, he knew exactly what he was going to receive on this case.
He was told exactly what he would receive if he was convicted by a jury. He was
told these things in exact certainty. I could tell you that it’s happened on every single
jury that’s been selected in this courtroom with the exception of first degree murder and
sexual assault cases.”
¶ 41 Brown appeals, arguing the trial court improperly dismissed his petition and he is entitled
to an evidentiary hearing on his claims that he was deprived of his constitutional rights during
the trial proceedings.
¶ 42 ANALYSIS
¶ 43 The Illinois Post-Conviction Hearing Act (Act) provides a process by which a criminal
defendant may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2010). A
postconviction action is a collateral attack on a prior conviction and sentence, “not a substitute
for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). To be
accorded relief under the Act, a defendant must show there was a substantial deprivation of his
or her constitutional rights in the proceedings that produced the conviction. People v.
Pendleton, 223 Ill. 2d 458, 471 (2006). The Act “provides for postconviction proceedings that
may consist of as many as three stages.” Id. at 472. During the first stage, the trial court has 90
days to summarily dismiss any “frivolous” petitions. Id. If not dismissed, the petition advances
to the second stage. Id. During second-stage proceedings, counsel may be appointed for the
defendant and the State may move to dismiss the petition or answer its allegations. Id. If the
petition is not dismissed at the second stage, it advances to the third stage and an evidentiary
hearing is held. Id. at 472-73. Brown’s petition was dismissed at the second stage on the State’s
motion.
¶ 44 A second-stage dismissal of a defendant’s petition presents a legal question we review
de novo. People v. Whitfield, 217 Ill. 2d 177, 182 (2005). The relevant question raised during a
second-stage postconviction proceeding is whether the petition’s allegations, supported by the
trial record and accompanying affidavits, demonstrate a substantial showing of a constitutional
deprivation, which requires an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381
(1998). All well-pled facts in the petition and affidavits are taken as true, but assertions that are
really conclusions add nothing to the required showing to trigger an evidentiary hearing under
the Act. Id.
¶ 45 The Act does not provide a defendant with an opportunity to retry the case. People v.
Evans, 186 Ill. 2d 83, 89 (1999). Issues that could have been raised on direct appeal, but were
not, are procedurally defaulted. People v. Williams, 209 Ill. 2d 227, 233 (2004). As a reviewing
court, we can “affirm the trial court on any basis supported by the record.” People v. Lee, 344
Ill. App. 3d 851, 853 (2003). We review the trial court’s judgment, not its reasoning. Id.
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¶ 46 Ineffective Assistance of Counsel Claims
¶ 47 Brown argues that the allegations of his petition, taken as true, make a substantial showing
that he was deprived of his constitutional right to effective assistance of counsel. To succeed
on a claim of ineffective assistance of counsel, a defendant must establish both that his trial
counsel’s representation fell below an objective standard of reasonableness and that the
deficiency prejudiced his or her case. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under the first prong an attorney “has a duty to conduct both factual and legal investigations on
behalf of [his or her] client.” People v. Montgomery, 327 Ill. App. 3d 180, 185 (2001). To
establish prejudice, a defendant must show that but for counsel’s deficiency, “there is a
reasonable probability that the result of the proceeding would have been different.” People v.
Houston, 229 Ill. 2d 1, 11 (2008). The defendant must show “actual prejudice” based on the
evidence and record, “not mere speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122,
135 (2008).
¶ 48 We are mindful that in assessing allegations of ineffective assistance of counsel, a
“defendant is entitled to effective, not perfect, representation [citation], and [that] this is to be
determined from the totality of counsel’s performance.” People v. Ingram, 382 Ill. App. 3d
997, 1006 (2008). Our supreme court has instructed “that a reviewing court will be highly
deferential to trial counsel on matters of trial strategy, making every effort to evaluate
counsel’s performance from his [or her] perspective at the time, rather than through the lens of
hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007). Mistakes in trial strategy or errors in
judgment do not automatically render counsel’s representation constitutionally deficient. Id. at
355-56. Rather, counsel must utterly fail to conduct any meaningful adversarial testing of the
State’s case. People v. Patterson, 217 Ill. 2d 407, 441 (2005).
¶ 49 Failure to Present Witnesses
¶ 50 Brown argues he made a substantial showing that trial counsel was ineffective for failing to
interview or present his proposed witnesses at trial. He contends that their affidavits, which
must be taken as true, show their testimony would have supported the defense theory at trial
that Brown did not possess the gun that was recovered from the side of the porch, someone else
did. Brown argues that based on the proposed witnesses’ allegations in their affidavits,
counsel’s failure to present their testimony at trial constituted deficient representation.
¶ 51 The State responds that the trial court properly dismissed Brown’s amended postconviction
petition at the second stage of the proceedings because Brown failed to establish that his trial
counsel’s decision on the witnesses was not trial strategy or that the result of the trial would
have been different had the witnesses testified for the defense. The State further contends
Brown failed to offer adequate evidentiary support for his claim because only one of his four
potential witnesses–Misher–provided a proper affidavit. The State argues the statements
attributed to Omar Young, Curtis Brown, and Stephanie Adams are not notarized and, thus, not
affidavits.
¶ 52 We find Brown’s claim that counsel was ineffective for her failure to call his proposed
witnesses lacks the requisite evidentiary support. To sustain an ineffective assistance of
counsel claim for counsel’s failure to investigate or present a witness, the defendant’s
allegation must be supported by an affidavit from that witness that contains the witness’s
proposed testimony. 725 ILCS 5/122-2 (West 2010); People v. Enis, 194 Ill. 2d 361, 380
(2000); see also People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (when defendant attacks
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competency of trial counsel in postconviction petition for failure to call or contact certain
witnesses, defendant must attach affidavits from those witnesses). “In the absence of such an
affidavit, a reviewing court cannot determine whether the proposed witness could have
provided testimony or information favorable to the defendant, and further review of the claim
is unnecessary.” Enis, 194 Ill. 2d at 380.
¶ 53 The purported affidavits by Young and Curtis Brown were not notarized. Adams’
statement was not notarized, as well as unsigned and undated. Brown failed to offer any
explanation as to why his proposed witnesses could not have their affidavits notarized. The
State contends because of this failure, Brown did not satisfy the pleading requirements of
section 122-2 of the Act. If a defendant’s petition does not comply with the evidentiary
requirements of section 122-2, it must at least provide an explanation as to why the affidavits
were unobtainable. People v. Collins, 202 Ill. 2d 59, 66-68 (2002). The purpose of a section
122-2 affidavit is to “show[ ] that the verified allegations are capable of objective or
independent corroboration.” Collins, 202 Ill. 2d at 67. Subsequently, however, the supreme
court has made clear that Collins does not apply “beyond the first stage of the proceedings.”
People v. Hall, 217 Ill. 2d 324, 332 (2005); see also People v. Clark, 2011 IL App (2d) 100188,
¶ 33; People v. Barkes, 399 Ill. App. 3d 980, 987 (2010) (holding affidavit requirement of
section 122-2 does not apply beyond first stage of postconviction proceedings).
¶ 54 The State did not raise the issue of the affidavits’ nullity below. But, our review of the
second-stage dismissal of a postconviction petition is de novo and in doing so, we can affirm
on any basis supported by the record. See Lee, 344 Ill. App. 3d at 853. We find, however, the
State has forfeited this issue by its failure to raise it before the circuit court, allowing defendant
the chance to correct the technical defect if possible.
¶ 55 Construing the notarization requirement as a technicality, we find the affidavits Brown
offered in support of his allegations are still insufficient to support his allegation that trial
counsel was ineffective for failing to call each of his proposed witnesses to testify. Brown
cannot overcome the strong presumption that counsel strategically decided which witnesses to
call to testify at his trial and he has not made a substantial showing of prejudice based on
counsel’s decision not to call any of his proposed witnesses.
¶ 56 Projansky’s decision not to call Adams, Misher, Young or Curtis Brown falls squarely
within the realm of sound trial strategy, and the proposed witnesses’ affidavits, in addition to
the record, do not overcome the strong presumption of sound trial strategy. Trial counsel’s
defense strategy was to show the State could not meet its burden of proving Brown’s guilt
beyond a reasonable doubt based solely on Officer Ayala’s testimony. Counsel vigorously
cross-examined Ayala to establish that the chaotic circumstances of the encounter (six men,
one with a machine gun strapped to his back) made it unlikely that Officer Ayala could
properly focus her attention on Brown. To further bolster the defense theory, trial counsel
called Brown’s cousin Henry. Henry testified not only that Brown did not have a gun (which is
all the proposed witnesses would have said), but also that “Omar” had the gun Ayala claimed
defendant dropped.
¶ 57 Regarding the specifics of the proposed witnesses’ statements, Adams never mentions
Brown in her affidavit. In his brief, Brown mischaracterizes her statement by saying she
attested Harper was the “only man with a gun that day.” Her statement is that she called the
police when she saw a man with a machine gun standing on the porch. Her silence as to
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defendant cannot be taken to affirmatively mean she did not see Brown with a gun. Nothing in
her affidavit indicates she would have testified favorably on behalf of Brown.
¶ 58 Misher indicates in his affidavit only that he saw Brown carrying a bottle. He says nothing
either way about whether Brown had a gun. Misher’s recollection does not conflict with
Officer Ayala’s testimony. She too saw Brown with a bottle of beer in his hand. Misher’s
proposed testimony would not have directly contradicted the evidence offered at trial and,
therefore, Brown is unable to show he was prejudiced by trial counsel’s failure to call Misher
to testify. See Bew, 228 Ill. 2d at 135 (defendant must show actual prejudice, not mere
speculation as to prejudice).
¶ 59 In his affidavit, Curtis Brown states he did not see defendant with a gun. Based on the
undated and unnotarized statement, it is not clear when and how defendant became aware of
Curtis Brown’s presence on the scene that day. Without this explanation, Brown is unable to
support his claim that trial counsel was ineffective for failing to investigate and call Curtis
Brown as a witness.
¶ 60 Lastly, regarding Omar Young, trial counsel decided not to call him because she believed
he would not be a helpful witness. Projansky reiterated her sentiments to Brown during their
phone conversation about her postconviction petition affidavit. Young’s proposed testimony
was not consistent with Henry’s testimony. Henry said “Omar” dropped the gun the police
recovered. In his affidavit, Young says he only saw a beer in Brown’s hand, but Young does
not admit the gun recovered was his, rather than Brown’s. Based on counsel’s explanation for
not calling Young and Young’s proposed testimony that would have contradicted Henry, a
more credible witness for the defense, Brown has not met the requirements under Strickland to
show counsel was ineffective for failing to call Young to testify on his behalf.
¶ 61 Furthermore, the testimony of Brown’s proposed witnesses would have been cumulative.
See People v. Ortiz, 235 Ill. 2d 319, 335 (2009) (“[e]vidence is considered cumulative when it
adds nothing to what was already before the jury”). Adams’ and Misher’s testimony would
have added nothing to the case. Adams’ statement was extremely limited, i.e., that she saw
Harper standing on the porch with a machine gun. Misher’s statement includes that he saw
Brown carrying a bottle of beer. Misher does not say either way whether Brown had a gun.
Misher’s testimony likewise would have added nothing new and, worse, could have harmed
the defense by bolstering the credibility of Officer Ayala’s recollection.
¶ 62 Neither Curtis Brown nor Omar Young offers the exculpatory evidence Brown tries to
convince us they do. Curtis Brown’s statement is short and vague. He was only briefly on the
scene and we do not know what his vantage point was or how defendant found out about him.
Omar Young states Brown did not have a gun, but he does not claim it was he who did.
Young’s statement does not exonerate Brown; in fact, it contradicts defense witness Henry,
who testified “Omar” is the man who dropped the gun Officer Petrusonis recovered.
Accordingly, none of the statements from the potential witnesses Brown offered are capable of
producing a different outcome on retrial and, as such, cannot sustain Brown’s claims of
ineffective assistance of counsel where no substantial showing of prejudice has been made.
¶ 63 Even assuming all of Brown’s supporting documentation to be true, the facts presented do
not warrant further proceedings. Brown fails to meet both prongs of Strickland and, thus, the
trial court properly dismissed his claim of ineffective assistance of counsel for counsel’s
alleged failure to investigate and call potential defense witnesses to testify on Brown’s behalf
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without an evidentiary hearing.
¶ 64 Plea Offer and Extended Sentencing
¶ 65 Brown argues he is entitled to an evidentiary hearing on his contention that trial counsel
performed deficiently by neglecting to inform him of (1) the State’s three-year guilty plea offer
and (2) the extended sentencing range he faced if convicted. As support for his claims, Brown
attached his own affidavit, Projansky’s affidavit, and an audio recording of telephone
conversations he had with counsel.
¶ 66 “[C]laims of ineffective assistance of counsel in the plea bargain context are governed by
the two-part test set forth in Strickland.” (Internal quotation marks omitted.) People v. Hale,
2013 IL 113140, ¶ 15. To show prejudice based on counsel’s alleged error, a defendant must
show that he would have accepted the plea offer but for counsel’s erroneous advice, that the
State would not have rescinded the offer, and that the trial court would have accepted it. Hale,
2013 IL 113140, ¶ 19.
¶ 67 The trial court acknowledged the record does not contradict Brown’s allegations. “I know
my not leaving it on the record makes it very hard for you. I apologize for that. That’s my
error.” The court, however, independently recalled counsel communicating the State’s offer to
Brown.
¶ 68 The telephone recordings also confirm that although trial counsel does not independently
recall specifically communicating the offer to defendant (as she stated in her affidavit), it is her
practice to always inform defendants of any plea offer. During their telephone conversation on
January 30, 2011, Projansky informed Brown she never would have rejected an offer from the
State without discussing it with him first. Her recollection was that Brown said he would not
accept any plea offer because of the ramifications it would have on federal charges that were
pending. During their conversation, Brown expressed dissatisfaction with Projansky’s
affidavit, particularly with respect to his contention that she did not relay the State’s plea offer.
Projansky reminded Brown that she reviewed her records before preparing her affidavit and
that it was based on her recollection.
¶ 69 In dismissing Brown’s petition, the trial court stated it had reviewed the telephone
recording of Brown’s conversations with Projansky. The court held that based on the
conversations, Brown knew of the State’s offer. The court further stated that it was certain it
had ensured Brown was aware of the plea offer. “I know that he received the offer.” The court
went on to explain that in all jury cases, with the exception of capital cases or first degree
murder cases, the court always has a conversation with the individual defendant about the
“sentencing parameters *** or what the offer is.”
¶ 70 Based on the record before us, Brown is unable to show counsel performed deficiently by
failing to relay the State’s plea offer.
¶ 71 Even if we were to accept Brown’s claim that counsel never informed him of the State’s
plea offer, his ineffective assistance of counsel claim would still fail because he is unable to
show prejudice. Brown failed to allege in his petition or state in his affidavit that he would have
accepted the State’s offer, and the record rebuts any suggestion Brown would have been
willing to plead guilty. In fact, when he made the suggestion during his recorded telephone
conversation with Projansky, she told him that was not true and reminded him that their
concern was always the federal ramifications of his state case. She further stated that he always
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insisted that he was not guilty and intended to fight the charges. For the first time in his
appellate brief, defendant claims he would have accepted the State’s plea offer. Projansky’s
affidavit and the recordings of her telephone conversations with Brown show they feared the
consequences of pleading guilty, regardless of the sentence. Based on the record, Brown is
unable to make a substantial showing that there was a reasonable probability that he would
have accepted the plea offer and that if he had, the court would have accepted it in light of the
severity of the sentence the trial court ultimately imposed (13 years vs. 3 years with the plea
agreement). See Hale, 2013 IL 113140, ¶ 19. Brown’s plea related to ineffective assistance of
counsel claim fails to meet the requirements of Strickland and, thus, the trial court properly
dismissed it.
¶ 72 Likewise unavailing is Brown’s claim that counsel was ineffective for failing to inform
him of the sentence he faced if convicted. Brown appears to be arguing that had it not been for
counsel’s failure to inform him of the extended sentence he faced, he would have accepted the
State’s plea offer. The record, however, belies such a contention. At the time Brown rejected
the State’s offer, trial counsel (and defendant) believed that if he pled guilty, he would open
himself up to federal consequences. We find no well-pled facts in Brown’s petition to support
his claim that Projansky provided deficient performance even if she omitted to tell him that he
faced an extended sentence based on his background, particularly where the trial court recalled
Brown being informed of the sentence he faced.
¶ 73 Given his background, Brown faced a minimum of 3 years and a maximum of 14; Brown
ultimately received 13 years. 720 ILCS 5/24-1.1(e) (West 2010) (extended sentence for
subsequent violations). In his postconviction petition, Brown alleges his trial counsel never
informed him he faced more than the normal Class 2 sentencing range of three to seven years.
¶ 74 Counsel has a constitutional obligation to inform the defendant of the minimum and
maximum sentences that may be imposed and the ramifications of accepting or rejecting a plea
offer. People v. Curry, 178 Ill. 2d 509, 528 (1997). The United States Supreme Court issued
Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 566 U.S. ___,
132 S. Ct. 1376 (2012), which both addressed issues of ineffective assistance of counsel
similar to those raised in Curry and the case before us. As to the factors required to meet a
Strickland showing of prejudice, the Supreme Court specifically stated that “[d]efendants must
also demonstrate a reasonable probability that the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they had the authority to
exercise that discretion under state law.” Frye, 566 U.S. at ___, 132 S. Ct. at 1409; see also
Cooper, 566 U.S. at ___, 132 S. Ct. at 1384-85.
¶ 75 His affidavit or that of his trial counsel does not support Brown’s claim. Brown raised the
allegations in his petition, but just as the State argued in its motion to dismiss, this allegation,
absent evidentiary support, is insufficient to survive dismissal under section 122-2 of the Act.
People v. Delton, 227 Ill. 2d 247, 255 (2008) (dismissal based on noncompliance with section
122-2).
¶ 76 Even if we overlook Brown’s failure to include this claim in his affidavit, his argument still
fails. Brown contends trial counsel’s argument during sentencing for a “normal class 2
sentencing range” (three to seven years) shows counsel failed to inform him of the proper
sentencing range he faced (an extended term based on his background). We agree with the
State that trial counsel’s efforts to persuade the court to impose a lesser sentence after trial does
not show Projansky failed to inform Brown of the fact that his prior convictions made him
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subject to a sentence of 3 to 14 years before trial (or that the trial court did). The trial court
rejected Brown’s contention, relying on its independent memory that Brown was informed of
the sentencing parameters.
¶ 77 Putting aside the issue of whether counsel informed Brown of the possibility of an
extended sentence, we proceed directly to the issue of prejudice. See Strickland, 466 U.S. at
697; People v. Albanese, 104 Ill. 2d 504, 527 (1984) (we may dispose of an ineffective
assistance of counsel claim by proceeding directly to the prejudice prong without addressing
counsel’s performance). Even if we accept that counsel’s advice was deficient, defendant has
failed to show any resulting prejudice. To establish prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The defendant must
establish that there is a reasonable probability that, absent his attorney’s deficient advice, he
would have accepted the plea offer. People v. Hale, 2013 IL 113140, ¶ 18.
¶ 78 Brown does not meet the initial requirement in Frye or Cooper to establish the prejudice
prong, i.e., that there is a reasonable probability that he would have accepted the plea offer had
he been afforded effective assistance of counsel. Brown’s claim that he would have pled guilty
had he known that he faced an extended sentence, standing alone, amounts to no more than
“ ‘subjective, self-serving [testimony,] *** insufficient to satisfy the Strickland requirement
for prejudice’ ” (Curry, 178 Ill. 2d at 531 (quoting Turner v. Tennessee, 858 F.2d 1201, 1206
(6th Cir. 1988))), and in light of his statements to counsel that he was innocent and their fears
of the federal consequences of a plea, is directly contradicted by the record. The trial court did
not find Brown’s contention credible. The court’s determination is not against the manifest
weight of the evidence and, therefore, will not be disturbed on appeal.
¶ 79 Brown’s self-serving claim that he would have accepted the State’s plea offer had counsel
informed him of the extended sentence he faced is unsupported by the record and was denied
by Ms. Projansky during their phone conversation. Because Brown is unable to make this
initial showing as required by Frye and Cooper, he cannot establish the prejudice prong of
Strickland. The trial court properly rejected Brown’s ineffective assistance of counsel claim.
¶ 80 Conflict of Interest Claim
¶ 81 Lastly, Brown argues he pled sufficient facts to warrant an evidentiary hearing on his claim
that trial counsel labored under a conflict of interest by representing Omar Young at the same
time she represented him.
¶ 82 The sixth amendment right to effective assistance of counsel includes the right to
conflict-free representation. People v. Morales, 209 Ill. 2d 340, 345 (2004). “Effective
assistance means assistance by an attorney whose allegiance to his client is not diluted by
conflicting interests or inconsistent obligations.” People v. Spreitzer, 123 Ill. 2d 1, 13-14
(1988). Illinois recognizes two classes of impermissible attorney conflicts of interest: (1) per
se conflicts, requiring automatic reversal regardless of whether prejudice can be shown and (2)
“potential,” “possible,” or “actual” conflicts requiring reversal if the conflict “adversely
affected counsel’s performance.” (Internal quotation marks omitted.) People v. Gacho, 2012
IL App (1st) 091675, ¶ 29 (quoting Spreitzer, 123 Ill. 2d at 17-18).
¶ 83 Brown alleges that Projansky labored under a potential or actual conflict, not a per se one
and that he never waived the conflict of interest. An attorney’s joint representation of criminal
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codefendants is not a violation of the constitutional guarantee of conflict-free representation
“merely by virtue of such representation.” People v. Taylor, 237 Ill. 2d 356, 375 (2010). To
prevail on a claim of ineffective assistance of counsel premised on counsel’s joint
representation of codefendants, a defendant must show that “an actual conflict of interest”
occurred at trial. Id. at 375-76. “ ‘What this means is that the defendant must point to some
specific defect in his counsel’s strategy tactics, or decision making attributable to the
conflict.’ ” Id. at 376 (quoting Spreitzer, 123 Ill. 2d at 18).
¶ 84 Brown alleges he pled sufficient facts to warrant an evidentiary hearing by presenting
Young’s affidavit in which Young claimed that Projansky represented him at the time of
Brown’s trial and she told him she would not put him on the stand to testify on behalf of Brown
because of his case. Brown argues Young’s testimony was significant because it would have
bolstered his defense that he did not have a gun.
¶ 85 Brown argues the trial court erred when it considered the State’s argument that Young’s
case was over by the time of Brown’s trial to find Brown presented insufficient evidence for
his conflict of interest claim to advance to an evidentiary hearing. Brown contends the State’s
claim raises a factual dispute concerning whether Projansky’s representation of Young
compromised her representation of Brown and, therefore, an evidentiary hearing was
necessary to resolve the factual dispute raised by Brown’s allegation.
¶ 86 Courts may take judicial notice of matters which are commonly known or of facts which,
while not generally known, are readily verifiable from sources of indisputable accuracy.
People v. Davis, 65 Ill. 2d 157, 161 (1976). The procedural proceedings of Omar Young’s case
were made a part of the court record by the State. The accuracy of the State’s statements has
not been directly challenged, instead, Brown merely argues that it was improper for the court to
accept the State’s contention in light of his claim that trial counsel labored under a conflict of
interest. Because Brown has not offered any evidence to show the State is incorrect in its belief
that Omar Young’s case was dismissed on September 9, 2008, and the 160 days to reinstate ran
before the start of Brown’s trial, the accuracy of the State’s statements has not been challenged
and, therefore, may be properly judicially noticed. See People v. Jackson, 182 Ill. 2d 30, 66
(1998) (“a court will take judicial notice of its own records”).
¶ 87 Following review of the record, we cannot say the trial court’s finding that Brown failed to
establish a substantial violation of his constitutional right to conflict-free representation was in
error. Accordingly, we uphold the trial court’s dismissal of Brown’s postconviction petition.
¶ 88 CONCLUSION
¶ 89 Even assuming that the facts set out in Brown’s petition are true, we hold Brown has failed
to present sufficient evidence in support of his claims and, therefore, an evidentiary hearing is
not required. The court properly dismissed Brown’s petition for postconviction relief at the
second stage.
¶ 90 Affirmed.
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