People v. Cabell

2023 IL App (2d) 220238-UNo. 2-22-0238
Order filed May 19, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-1168
)
SURGENE J. CABELL, ) Honorable
) Mark L. Levitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Justices Hutchinson and Kennedy concurred in the judgment.
ORDER
¶1 Held: Counsel on direct appeal was not ineffective for failing to argue that the offense of
aggravated kidnapping by confinement was merely incidental to the domestic
battery of which defendant was also convicted. First, we would have lacked
jurisdiction on direct appeal to address that issue, because the aggravated
kidnapping by confinement was merged into another aggravated kidnapping
conviction and no sentence was imposed on the former. Second, there would have
been no merit to the claim because, under the governing four-factor test, the
aggravated kidnapping by confinement was not part and parcel of the battery but
was a distinct act that posed a significant danger to the victim independent of the
battery.
¶2 Defendant, Surgene J. Cabell, appeals from the second-stage dismissal of his petition under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He contends that
2023 IL App (2d) 220238-Uhe made a substantial showing that his counsel on direct appeal was ineffective. Because appellate
counsel’s conduct did not prejudice defendant, we affirm.
¶3 I. BACKGROUND
¶4 The State indicted defendant on two counts of domestic battery based on punching the
victim (720 ILCS 5/12-3.2(a)(2) (West 2016)), two counts of domestic battery based on grabbing
the victim’s neck (720 ILCS 5/12-3.2(a)(2) (West 2016)), one count of aggravated domestic
battery based on strangulation (720 ILCS 5/12-3.3(a-5) (West 2016)), one count of aggravated
kidnapping based on secretly confining the victim (720 ILCS 5/10-1(a)(1); 10-2(a)(3) (West
2016)), and one count of aggravated kidnapping based on carrying the victim from one place to
another to secretly confine her (720 ILCS 5/10-1(a)(2); 10-2(a)(3) (West 2016)).
¶5 Because our order in defendant’s direct appeal detailed the facts developed at his bench
trial (see People v. Cabell, 2019 IL App (2d) 170436-U), we only briefly review those facts as
they relate to the issue raised in this appeal. The victim’s testimony and surveillance video from
her workplace, where the incident occurred, established the following. The victim was defendant’s
live-in girlfriend. He went to her workplace, where they argued in a hallway. The argument
became a physical altercation. Defendant pinned the victim to the wall, and, after they fell to the
floor, he punched her twice. He then grabbed the victim by her hair and dragged her into a nearby
bathroom. The door closed behind them. About a minute later, they opened the door and left the
bathroom.
¶6 The victim testified that, inside the bathroom, defendant bit her arm and stepped on her
hand. She denied that defendant choked her. Although she admitted that she kicked the wall inside
the bathroom, she claimed that she did so to get defendant to stop. She admitted that, in her signed
statement to the police, she said that defendant choked her while in the bathroom. She further
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2023 IL App (2d) 220238-Uadmitted telling emergency room personnel that defendant had choked her. On cross-examination,
the victim testified that the bathroom door had a lock but was unlocked while she and defendant
were inside. According to the victim, she could have left the bathroom at any time and defendant
never prevented her from doing so.
¶7 According to defendant, he went into the bathroom with the victim to apologize and stop
their fighting. He denied locking the door or preventing her from leaving. He denied choking the
victim or hurting her while in the bathroom. According to defendant, the victim wanted them to
go into the bathroom.
¶8 The victim’s coworker testified that she heard banging outside her office. When she went
into the hallway to investigate, she heard a female screaming and crying in the bathroom. After
directing another employee to call 911, she knocked on the bathroom door. As she did so, a large
man exited and walked toward the elevator. When she looked inside the bathroom, she saw the
victim leaning against the sink and crying. She was bleeding from the side of her neck.
¶9 The trial court directed a not-guilty finding on aggravated domestic battery but found
defendant guilty of all remaining counts. The court merged the four domestic-battery convictions
into one, merged the aggravated-kidnapping conviction based on confinement into the aggravated-
kidnapping conviction based on asportation , and sentenced defendant to concurrent prison terms
of 7 years and 14 years, respectively.
¶ 10 On direct appeal, defendant contended only that he was not proved guilty beyond a
reasonable doubt of aggravated kidnapping, because (1) the evidence did not establish that he
either secretly confined the victim or intended to do so, and (2) the kidnapping based on asportation
of the victim was merely incidental to the domestic battery. People v. Cabell, 2019 IL App (2d)
170436-U, ¶ 21. We rejected those contentions and affirmed. Cabell, 2019 IL App (2d) 170436-
-3-
2023 IL App (2d) 220238-UU, ¶ 38. In doing so, we noted that defendant did not also contend that the aggravated kidnapping
based on confinement was merely incidental to the domestic battery; thus, he forfeited the issue.
Cabell, 2019 IL App (2d) 170436-U, ¶ 35 n.1 (citing Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)).
¶ 11 Subsequently, defendant filed a postconviction petition under the Act. Among other
claims, he alleged that his counsel on direct appeal was ineffective for failing to argue that the
aggravated kidnapping by confinement was merely incidental to the domestic battery. The trial
court advanced the petition to the second stage and appointed counsel. The State filed a motion to
dismiss. Following a hearing, the court granted the State’s motion and dismissed the petition.
Defendant, in turn, filed this timely appeal.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant contends that his petition should not have been dismissed, because
he made a substantial showing that appellate counsel was ineffective for failing to argue that the
aggravated kidnapping by confinement was merely incidental to the domestic battery.
¶ 14 The Act allows a criminal defendant to raise a claim that his conviction resulted from a
substantial violation of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2020). The Act
establishes a three-stage process for the adjudication of a postconviction petition. People v.
English, 2013 IL 112890, ¶ 23. If a petition is not summarily dismissed at the first stage, it
advances to the second stage, where an indigent petitioner can obtain appointed counsel, and the
State can move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2020). If a
petitioner makes a substantial showing of a constitutional violation, the petition advances to the
third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2020).
¶ 15 At the second stage, dismissal is warranted only when the allegations in the petition,
liberally construed in light of the trial record, fail to make a substantial showing of a constitutional
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2023 IL App (2d) 220238-Uviolation. People v. Hall, 217 Ill. 2d 324, 334 (2005). We accept as true all factual allegations not
positively rebutted by the record (People v. Childress, 191 Ill. 2d 168, 174 (2000)) and review
de novo the second-stage dismissal of a petition (Hall, 217 Ill. 2d at 334). We may affirm the
second-stage dismissal of a postconviction petition on any basis shown in the record. People v.
Davis, 382 Ill. App. 3d 701, 706 (2008).
¶ 16 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, the defendant must show a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. People v. Phillips,
2017 IL App (4th) 160557, ¶ 57. The failure to satisfy either Strickland prong precludes a finding
of ineffective assistance of counsel. People v. Houston, 226 Ill. 2d 135, 144-45 (2007). We
measure claims of ineffective assistance of appellate counsel by the same standard as those dealing
with trial counsel. Childress, 191 Ill. 2d at 175. Unless the underlying issue is meritorious, the
defendant suffers no prejudice from counsel’s failure to raise the issue on direct appeal. Phillips,
2017 IL App (4th) 160557, ¶ 66.
¶ 17 We begin with the prejudice prong. The State asserts that defendant did not suffer any
prejudice from appellate counsel’s failure to argue that the aggravated kidnapping by confinement
was merely incidental to the domestic battery. The State reasons that this court would have lacked
jurisdiction on direct appeal to review the conviction of aggravated kidnapping by confinement.
We agree.
¶ 18 In People v. Olaska, 2017 IL App (2d) 150567, ¶ 113, we held that we lacked jurisdiction
to review two felony-murder convictions, because the trial court had merged them into another
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2023 IL App (2d) 220238-Ufirst-degree murder conviction and did not impose any sentence on the felony-murder convictions.
In doing so, we relied on the supreme court’s decision in People v. Cabarello, 102 Ill. 2d 23 (1984).
Olaska, 2017 IL (2d) 150567, ¶ 113. In Cabarello, the supreme court held that it had no
jurisdiction to consider whether the defendant’s armed-violence convictions were improper,
because the trial court never sentenced him on those convictions. Cabarello, 102 Ill. 2d at 51.
Thus, we concluded in Olaska that, under Cabarello, we had no jurisdiction over the merged
felony-murder convictions because the trial court did not impose a sentence on those convictions.
Olaska, 2017 IL App (2d) 150567, ¶ 113. We further noted that neither People v. Dixon, 91 Ill.
2d 346, 354 (1982), nor People v. Scott, 69 Ill. 2d 85, 88 (1977)—both of which affirm the
authority of a reviewing court to remand for sentencing on an unsentenced conviction—could be
read to suggest that a reviewing court has jurisdiction to review the merits of an unsentenced
conviction. Olaska, 2017 IL App (2d) 150567, ¶ 114; see also People v. Relerford, 2017 IL
121094, ¶¶ 74-75 (distinguishing Dixon and holding that the appellate court lacked jurisdiction to
consider the merits of the defendant’s unsentenced convictions).
¶ 19 Here, defendant’s conviction of aggravated kidnapping by confinement was merged into
his conviction of aggravated kidnapping by asportation. As such, the trial court did not impose a
sentence for aggravated kidnapping by confinement; therefore, we lacked jurisdiction on direct
appeal to consider any challenge to the merits of that kidnapping conviction. Accordingly,
appellate counsel did not prejudice defendant by failing to challenge the conviction of aggravated
kidnapping by confinement as merely incidental to the domestic battery. Thus, defendant’s
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2023 IL App (2d) 220238-Upostconviction petition made no substantial showing of ineffective assistance of appellate counsel
and was properly dismissed. 1
¶ 20 Alternatively, even if we had jurisdiction on direct appeal to consider a claim that the
conviction of aggravated kidnapping by confinement was improper because that offense was
merely incidental to the domestic battery, there would have been no merit to the claim. Thus,
appellate counsel’s failure to raise the claim on direct appeal still did not prejudice defendant. See
Phillips, 2017 IL App (4th) 160557, ¶ 66.
¶ 21 The supreme court has identified four factors to apply to determine whether a confinement
is merely incidental to another offense or rises to the level of the independent offense of
kidnapping. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). Those factors are (1) the
duration of the confinement, (2) whether the confinement occurred during the commission of the
separate offense, (3) whether the confinement was inherent in the separate offense, and (4) whether
the confinement created a significant danger to the victim independent of that posed by the separate
offense. Siguenza-Brito, 235 Ill. 2d at 225-26. On direct review we considered the four Siguenza-
Brito factors and rejected defendant’s argument that the asportation of Brown was merely
incidental to the offense of domestic battery. 2019 IL App (2d) 170436-U. ¶¶ 29-35. Our reasoning
applies with equal force to confinement.
1
We acknowledge that, on direct appeal, we did address a different challenge to aggravated
kidnapping by confinement. However, we simply failed to recognize our lack of jurisdiction to do
so.
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2023 IL App (2d) 220238-U¶ 22 For the foregoing reasons, defendant did not make a substantial showing that his appellate
counsel was ineffective. Thus, the trial court did not err in dismissing the postconviction petition
at the second stage.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 25 Affirmed.
¶ 26
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