People v. Quickle , 2020 IL App (3d) 170281 ( 2021 )

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Appellate Court Date: 2021.03.25
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People v. Quickle, 2020 IL App (3d) 170281Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD D. QUICKLE, Defendant-Appellant.
District & No. Third District
No. 3-17-0281
Filed March 5, 2020
Decision Under Appeal from the Circuit Court of Tazewell County, No. 94-CF-30; the
Review Hon. Stephen A. Kouri, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Peter A. Carusona, and Santiago A. Durango, of State
Appeal Appellate Defender’s Office, of Ottawa, for appellant.
Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino,
Thomas D. Arado, and Gary F. Gnidovec, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE LYTTON delivered the judgment of the court,
with opinion.
Justices McDade and Schmidt concurred in the judgment and opinion.
OPINION
¶1 In 1994, defendant Donald Quickle was convicted of first degree murder and armed
robbery and sentenced to consecutive prison terms of 60 years and 30 years, respectively. In
2017, defendant filed a motion for leave to file a second successive postconviction petition,
arguing that he was actually innocent of intentional murder. The trial court denied defendant’s
motion. We affirm.
¶2 FACTS
¶3 On January 27, 1994, the State filed a seven-count indictment against defendant. In the first
six counts, the State charged defendant with intentional murder, knowing murder, and felony
murder (720 ILCS 5/9-1(a)(1)-(3) (West 1994)) for shooting Larry Ederer (1) “with the intent
to kill,” (2) “with the intent to do great bodily harm,” (3) “knowing his acts would cause ***
death,” (4) “knowing his acts created the strong probability of death,” (5) “knowing his acts
created the strong probability of great bodily harm,” or (6) “while committing a forceable
felony, [a]rmed [r]obbery.” In count VII, the State charged defendant with armed robbery (id.
§ 18-2(a)) for taking Dawn Lohman’s purse while armed with a handgun and “threatening the
imminent use of force.”
¶4 Defendant initially pled guilty but later withdrew his guilty plea. He was tried by a jury in
1999. The evidence at defendant’s trial showed that on January 22, 1994, defendant and his
brother, Kevin Quickle, waited outside Sheba’s, a tavern in Creve Coeur, intending to rob the
last patron to leave. Defendant was armed with a gun, and his brother was armed with a metal
pipe.
¶5 Larry Ederer was the owner of Sheba’s, and Dawn Lohman was employed there as a
bartender. As Ederer walked Lohman to her car in the early morning hours of January 22, 1994,
defendant and his brother approached them. Defendant brandished his gun and said he only
wanted money. Defendant attempted to handcuff Ederer, and a struggle ensued. The struggle
continued into the tavern. While Ederer and defendant struggled over defendant’s gun, a shot
was fired, hitting Ederer in the neck and causing him to fall to the ground.
¶6 Defendant then handcuffed Ederer, and defendant’s brother handcuffed Lohman.
Defendant took money from the cash register and coins from a safe. Defendant took Lohman’s
car keys and purse, and he and his brother fled in Lohman’s vehicle. Lohman called 911. Ederer
died before help arrived.
¶7 At the jury instruction conference, defendant asked the court for a separate verdict form
for each of the six counts of murder alleged in the indictment. The State objected, and the trial
court denied defendant’s request. The jury was instructed on the theories of murder alleged in
the indictment and given a general verdict form for murder. The jury found defendant guilty
of murder and armed robbery. Defendant filed a motion for a new trial, which the trial court
denied. The court sentenced defendant to consecutive prison terms of 60 years for murder and
30 years for armed robbery. Defendant filed a motion to reconsider his sentences, which the
trial court denied.
¶8 Defendant appealed, and we affirmed defendant’s convictions and sentences. People v.
Quickle, No. 3-00-0057 (2001) (unpublished order under Illinois Supreme Court Rule 23).
Shortly thereafter, defendant filed a pro se postconviction petition. The trial court appointed
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defendant postconviction counsel. Defendant’s counsel filed an amended postconviction
petition, alleging ineffective assistance of trial counsel and denial of defendant’s due process
rights. The State filed a motion to dismiss. The trial court entered an order dismissing
defendant’s due process claim, based on waiver, but allowing his ineffective assistance claim
to proceed. After an evidentiary hearing, the trial court denied defendant’s ineffective
assistance claim, finding that defendant’s “[t]rial [c]ounsel was not deficient in any respect.”
¶9 Defendant appealed, arguing that he was denied reasonable assistance of postconviction
counsel. We agreed and remanded the case to the trial court with directions that new
postconviction counsel be appointed and allowed to replead defendant’s due process claim.
People v. Quickle, No. 3-06-0864 (2008) (unpublished summary order under Illinois Supreme
Court Rule 23).
¶ 10 Following remand, defendant’s new postconviction counsel filed amended postconviction
petitions, alleging ineffective assistance of appellate counsel. Following a third-stage
evidentiary hearing, the trial court dismissed defendant’s petition. Defendant appealed, and we
affirmed the dismissal. People v. Quickle, 2012 IL App (3d) 100670-U.
¶ 11 One year later, defendant filed a motion for leave to file a successive postconviction
petition, alleging that he was denied reasonable assistance of appellate counsel. The trial court
summarily denied defendant’s motion. Defendant appealed, and we affirmed. People v.
Quickle, No. 3-14-0277 (2015) (unpublished order under Illinois Supreme Court Rule 23(c)).
¶ 12 In 2014, defendant filed a “Petition to Vacate Void Sentences” pursuant to section 2-
1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2014)). The State
filed a motion to dismiss. The trial court entered an order dismissing the petition. In 2015,
defendant filed another petition for relief from judgment, pursuant to section 2-1401(f) of the
Code. The State filed a motion to dismiss, and the trial court dismissed the petition.
¶ 13 In 2017, defendant filed a motion for leave to file his second successive postconviction
petition. In his petition, defendant alleged that he was actually innocent of intentional murder
under People v. Smith, 233 Ill. 2d 1 (2009). The trial court denied defendant’s motion.
¶ 14 ANALYSIS
¶ 15 The Post-Conviction Hearing Act (Act) provides a method for a criminal defendant to
assert that “in the proceedings which resulted in his or her conviction there was a substantial
denial of his or her rights under the Constitution of the United States or of the State of Illinois
or both.” 725 ILCS 5/122-1(a)(1) (West 2016). “A proceeding under the Act is a collateral
attack on the judgment of conviction.” People v. Wrice, 2012 IL 111860, ¶ 47.
¶ 16 Where, as here, a defendant seeks to institute a successive postconviction proceeding, the
defendant must first obtain leave of court. Id.; 725 ILCS 5/122-1(f) (West 2016). We review
de novo the trial court’s denial of defendant’s motion for leave to file a successive
postconviction petition. People v. Simmons, 388 Ill. App. 3d 599, 606 (2009).
¶ 17 Both the language of the Act and case law make clear that only one postconviction
proceeding is contemplated. People v. Edwards, 2012 IL 111711, ¶ 22. However, there are two
bases upon which the bar against successive proceedings will be relaxed: (1) when a petitioner
can establish “cause and prejudice” for failure to raise the claim earlier, and (2) when a
petitioner shows “actual innocence.” Id. ¶¶ 22-23. Here, defendant does not allege “cause and
prejudice” in his postconviction petition but, instead, asserts an “actual innocence” claim.
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¶ 18 The evidence in support of an actual innocence claim must be (1) newly discovered,
(2) material and not merely cumulative, and (3) “of such conclusive character that it would
probably change the result on retrial.” Id. ¶ 32. “ ‘[A]ctual innocence’ is not within the rubric
of whether a defendant has been proved guilty beyond a reasonable doubt.” People v. Collier,
387 Ill. App. 3d 630, 636 (2008) (citing People v. Jones, 362 Ill. App. 3d 31, 34 (2005)).
“Rather, the hallmark of ‘actual innocence’ means ‘total vindication,’ or ‘exoneration.’ ” Id.(citing People v. Savory, 309 Ill. App. 3d 408, 414-15 (1999)).
¶ 19 An acquittal alone is insufficient to prove actual innocence. See Fink v. Banks, 2013 IL
App (1st) 122177, ¶ 25; Moore v. Owens, 298 Ill. App. 3d 672, 675 (1998); Pulungan v. United
States, 722 F.3d 983, 985 (7th Cir. 2013); see also Levine v. Kling, 123 F.3d 580, 582 (7th Cir.
1997) (“an acquittal doesn’t mean that the defendant did not commit the crime for which he
was tried; all it means is that the government was not able to prove beyond a reasonable doubt
that he committed it”). In fact, sometimes an acquittal is unrelated to a defendant’s innocence.
See Herrera-Corral v. Hyman, 408 Ill. App. 3d 672, 675 (2011); see also Blackmon v.
Williams, 823 F.3d 1088, 1113 (7th Cir. 2016) (Posner, J., concurring in part and dissenting in
part) (“some acquittals *** are based on reasons unrelated to guilt or innocence, such as lack
of jurisdiction, violation of certain constitutional rights (for example, rights conferred by the
Fourth Amendment), or expiration of the statute of limitations”).
¶ 20 For purposes of the actual innocence exception, “ ‘actual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24
(1998). A claim of legal, rather than factual, innocence will not support an “actual innocence”
claim. Zavesky v. Miller, 79 F.3d 554, 556-57 (7th Cir. 1996); Boyer v. United States, 55 F.3d
296, 300 (7th Cir. 1995); see Spreitzer v. Schomig, 219 F.3d 639, 648 (7th Cir. 2000). The
actual innocence exception requires the defendant to establish that “ ‘he has a colorable claim
of factual innocence.’ ” Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (quoting Kuhlmann v.
Wilson, 477 U.S. 436, 454 (1986) (opinion of Powell, J., joined by Burger, C.J., and Rehnquist
and O’Connor, JJ.)). An actual innocence claim “requires petitioner to support his allegations
of constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “The required evidence must
create a colorable claim of actual innocence, that the petitioner ‘is innocent of the charge for
which he [is] incarcerated,’ as opposed to legal innocence as a result of legal error.” Gandarela
v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2001) (quoting Kuhlmann, 477 U.S. at 452).
¶ 21 In Smith, 233 Ill. 2d at 28-29, our supreme court held that when a defendant charged with
intentional murder, knowing murder, and felony murder is denied his request for separate
verdict forms and is found guilty of murder by a general verdict, for purposes of sentencing,
the guilty verdict must be interpreted as a finding of guilt on the felony murder charge only. In
People v. Bailey, 2013 IL 113690, ¶ 64, our supreme court held that a trial court’s error in
refusing a defendant’s request for separate verdict forms requires that a general guilty verdict
of first degree murder be viewed “as an acquittal on the counts of intentional and knowing
murder.”
¶ 22 Defendant argues that he falls within the “actual innocence” exception for successive
postconviction petitions. He contends that, pursuant to Smith and Bailey, the general guilty
verdict entered against him must be construed as an acquittal of knowing and intentional
murder, making him innocent of those types of murder.
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¶ 23 Even though the general guilty verdict entered against defendant is viewed as an acquittal
of intentional and knowing murder (id.), defendant has failed to establish “actual innocence.”
Acquittal alone is insufficient to prove actual innocence. See People v. Ward, 2011 IL 108690,
¶ 111; Fink, 2013 IL App (1st) 122177, ¶ 25; Moore, 298 Ill. App. 3d at 675; Pulungan, 722
F.3d at 985; Levine, 123 F.3d at 582. In order for defendant to invoke the “actual innocence”
exception, he has to show that he is factually innocent of knowing and intentional murder. See
Sawyer, 505 U.S. at 339.
¶ 24 Here, defendant does not assert that he did not commit intentional or knowing murder.
Instead, he argues that he is innocent of those crimes because of the trial court’s error in giving
the jury a general verdict form instead of six separate verdict forms, as he requested. We agree
that the trial court erred in failing to provide the jury with separate verdict forms; the trial
court’s error, however, results in defendant’s legal, not factual, innocence of intentional and
knowing murder. See Gandarela, 286 F.3d at 1085. Legal innocence does not support a claim
of actual innocence. See Bousley, 523 U.S. at 623-24; Spreitzer, 219 F.3d at 648; Zavesky, 79
F.3d at 556-57; Boyer, 55 F.3d at 300. Defendant does not assert that he is factually innocent
of intentional or knowing murder; his actual innocence claim fails. See Spreitzer, 219 F.3d at
648; Zavesky, 79 F.3d at 556-57; Boyer, 55 F.3d at 300.
¶ 25 Because defendant cannot establish actual innocence and failed to allege cause and
prejudice in his petition, the trial court properly denied defendant’s motion for leave to file his
second successive postconviction petition. See Edwards, 2012 IL 111711, ¶¶ 22-23.
¶ 26 CONCLUSION
¶ 27 The judgment of the circuit court of Tazewell County is affirmed.
¶ 28 Affirmed.
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