Opinion
No. 1-11-3077
02-19-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMETT GENTRY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23 (e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 05-CR-27668
Honorable
Angela M. Petrone,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Neville and Mason concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court, which dismissed the defendant's postconviction petition at the second-stage, was affirmed; the order assessing the defendant with a frivolous-filing fee was vacated. ¶ 2 Following a bench trial, the defendant, Emmett Gentry, was found guilty of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2004)) after he used a gun during a robbery of a Walgreens store on November 16, 2005, and he was sentenced to 19 years' imprisonment. The defendant now appeals from the second-stage dismissal of his pro se postconviction petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2010)), arguing that (1) postconviction counsel violated Supreme Court Rule 651 (c) (eff. Feb. 6, 2013) when she failed to amend his petition to avoid procedural default and (2) the order which assessed him a frivolous-filing fee pursuant to section 22-105 of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2010)) should be vacated because this was not a first-stage dismissal as contemplated by the Code. For the reasons that follow, we affirm the circuit court's denial of the defendant's postconviction petition, and we vacate the order imposing the frivolous filing fee pursuant to section 22-105 of the Code. ¶ 3 We first summarize the facts relevant to this appeal based on the defendant's pretrial and trial proceedings. In a pretrial motion to quash his arrest, the defendant argued that Officer William Eaker lacked probable cause to arrest him. At a hearing on the motion, Officer Eaker testified that the defendant matched the description that he received from the radio call regarding the armed robbery, that the defendant was near the site of the robbery, and that, when he saw the defendant, he was breathing hard and sweating. He testified that the suspect was described as a 5 feet 6 inch or 5 feet 7 inch male, wearing a black or dark blue cap, a black jacket, black pants, and dark sunglasses. Officer Eaker stated that he observed the defendant near the Walgreens store and pulled his vehicle over about a block or two from the store. Officer Eaker testified that the defendant was wearing a dark blue or black cap, black pants and a black jacket, and that, upon arrest, he recovered a small caliber gun, sunglasses, and money from the defendant's pockets. According to Officer Eaker, the defendant complained to him that it was unfair that he was in an unmarked police car. The defendant stated that if the car had been marked, he would not have been caught and would have shot Officer Eaker. On cross-examination, Officer Eaker admitted that the defendant's cap was not separately inventoried. He also admitted that the defendant was 5 feet 9 inches tall. Based on Officer Eaker's overall observations, the trial court agreed that he had probable cause to arrest the defendant and denied the motion to quash. ¶ 4 At trial, Howard Young, a Walgreens manager, testified that on, November 16, 2005, he saw the defendant hold a gun at the front register, point the gun toward him, and take cash from inside the register. Young went to his office, called the police, and provided them with a description of the defendant on the phone. Young identified the defendant as the robber and the gun when the police later brought the defendant to the Walgreens store in the back of a squad car. Steve Bernard, another Walgreens manager, heard the store alarm and left his office, but was told by the defendant to "stop or [I] will shoot." Bernard corroborated Young's testimony and testified that he also identified the defendant as the robber when police returned shortly after the robbery. ¶ 5 Officer Eaker testified consistently with his pretrial testimony. He stated that he received a radio call of the armed robbery in progress at the Walgreens and the description of the suspect. Shortly thereafter, he arrested the defendant about one and a half blocks away from the store because he fit the description of the suspect in the radio call. While being arrested, the defendant told Officer Eaker that he "should have been in a regular squad car," and if he had been in a marked car, he would not have been caught and would have shot Officer Eaker. When another officer arrived, Officer Eaker arrrested the defendant and searched him, finding a .32 caliber revolver with four live rounds, black sunglasses, and $853 in cash. He then took the defendant in his squad car to the Walgreens where Young and Bernard both identified him as the robber. On cross-examination, Officer Eaker acknowledged that he did not inventory a hat or cap. ¶ 6 The defendant testified that he was arrested by Officer Eaker about six blocks away from the Walgreens after leaving his sister's house. He denied robbing the Walgreens or possessing the gun and cash. The defendant stated that a police officer told the Walgreens witnesses that if they wanted their money back, the needed to sign a complaint against him. ¶ 7 The court found the defendant not guilty of armed robbery, guilty of the remaining weapons charges, and merged the lesser included firearms charges into the armed habitual criminal offense. The defendant was later sentenced to 19 years' imprisonment. ¶ 8 Following his trial and sentence, the defendant filed a pro se motion for a new trial, arguing, in relevant part, that his trial counsel failed to bring out the fact that he was six blocks from the crime scene, that his fingerprints were not found on the gun, and failed to impeach Officer Eaker with alleged inconsistent statements made during his pretrial testimony. The court denied the motion for a new trial. The defendant next moved for reconsideration of his sentence, which was also denied. ¶ 9 On direct appeal, the defendant argued that his right to counsel was violated when he was not admonished by the court regarding waiver of counsel before arguing two pro se posttrial motions and that his sentence was excessive. This court affirmed the defendant's conviction and sentence. People v. Gentry, No. 1-08-2752 (February 10, 2010) (unpublished order under Supreme Court Rule 23). ¶ 10 On March 29, 2010, the defendant filed a pro se postconviction petition which made numerous claims, including that trial counsel failed to adequately impeach Officer Eaker at trial and that he received ineffective assistance of appellate counsel for failing to raise his claims in his direct appeal. Relevant to this appeal, the defendant alleged that trial counsel failed to use Officer Eaker's police report to impeach him as to the place of the arrest, which lists a location four blocks, not one or two blocks, away from the store, who assisted him in the arrest, and who was present when the gun was recovered from the defendant's person. He also attached a letter that he sent to his appellate defender, Daniel Ellerbrook, complaining that he did not raise these claims pertaining to Officer Eaker's impeachment in his direct appeal. ¶ 11 On March 20, 2010 the clerk of the court received defendant's pro se postconviction petition with an attached supporting legal memorandum and a motion to appoint counsel other than the public defender's office. The clerk failed to put the petition on the court call within 90 days. On August 20, 2010 the trial court correctly noted 90 days required by section 122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 2010)) had passed and advanced the petition to the second-stage, denied defendant's motion for a different attorney and appointed the public defender's office to represent him pursuant to section 122-4 of the Act (725 ILCS 5/122-4 (West 2010)). ¶ 12 On March 9, 2011, postconviction counsel supplemented the defendant's pro se petition with his notarized affidavit and filed her certification prusuant to Rule 651(c), stating that she reviewed the trial court files and the petition and concluded that it was unnecessary to amend the claims raised in the defendant's petition. In the defendant's affidavit, he attested that he sent a letter to Ellerbrook which outlined several claims, including the claims regarding trial counsel's inadequate impeachment of Officer Eaker, that were not raised in his direct appeal. ¶ 13 On June 24, 2011, the defendant filed a motion alleging that postconviction counsel was "ineffective" because she informed him that his claims lacked merit. He attached to his motion a letter from postconviction counsel in which she summarized the results of her investigation of one of his claims pertaining to a pre-indictment delay. He also submitted his affidavit in which he stated that postconviction counsel had lied to him about his case and falsely stated that his claims lacked an arguable basis in facts and law. Postconviction counsel then moved to withdraw from the defendant's case, stating he had waived the attorney-client privilege by attaching one of her letters to him. ¶ 14 On June 30, 2011, the trial court denied both the defendant's motion alleging that postconviction counsel was "ineffective" and counsel's motion to withdraw. At the hearing on these motions, postconviction counsel was forced to discuss the merits, or lack thereof, of the defendant's case in order to respond to his claim that she had provided him with unreasonable assistance and had lied to him about the viability of his claims. Additionally, over postconviction counsel's strenuous objections, the court assessed the defendant the frivolous filing fees pursuant to section 22-105 of the Code for his motion alleging "ineffective" assistance of postconviction counsel. The court determined that the defendant's motion was frivolous as postconviction counsel had provided the defendant with exemplary representation. ¶ 15 On July 12, 2011, the State moved to dismiss the defendant's petition, arguing that the issues raised therein could have been raised during his direct appeal and were, therefore, forfeited. In addition, the State argued that the defendant's claims had no arguable basis in either fact or law. Before the hearing on the State's motion to dismiss, postconviction counsel moved the court to reconsider its imposition of the frivolous-filing fees on the defendant. The court granted that motion and vacated the fees which it imposed. However, the court imposed the same fees on the defendant for filing his frivolous pro se postconviction petition, and the court stated it would issue a written order regarding the petition soon after the hearing. ¶ 16 On August 29, 2011, the trial court issued its written order granting the State's motion to dismiss the postconviction petition. The court found that the petition was frivolous and lacked merit, which we note is not the standard used at the second-state of postconviction proceedings. The court, however, later applied the proper standard in its legal conclusions. ¶ 17 In its order, the trial court stated that the claims raised in the petition were either forfeited, res judicata or conclusory, speculative, and unsupported by the record. Specifically, the court found that the defendant's claim of ineffective assistance of appellate counsel failed to articulate which claims appellate counsel failed to raise in his direct appeal and that the argument was "entirely speculative and conclusory with no facts to support it." Regarding the defendant's claims of ineffective assistance of trial counsel, the court found that the defendant had previously raised those claims, which the court denied, and that the claims were barred by the doctrine of res judicata and also "completely unsupported by anything in the record." As to Officer Eaker's credibility, the court stated that the issue had been argued at trial in the defendant's "motion for directed finding, in closing argument, in posttrial motions, and on [direct] appeal," and therefore, the issue was barred by the doctrine of res judicata. In conclusion, the trial court stated that the defendant had failed to meet the second-stage standard in that he failed to make a substantial showing of a violation of his constitutional rights and that the record showed that his rights "were protected at all times." The court found that the defendant's petition sought merely to "relitigate his guilt or innocence." ¶ 18 The defendant timely appealed, arguing that (1) postconviction counsel failed to comply with Rule 651(c) by not amending his petition to avoid procedural default and that (2) the order assessing him with frivolous filing fees should be vacated. ¶ 19 The Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. People v. Edwards, 197 Ill. 2d 239, 244 (2001). "Under the Act, a postconviction proceeding not involving the death penalty contains three stages." Edwards, 197 Ill. 2d at 244. A petition will survive the first stage if it states the gist of a constitutional claim (People v. Gaultney, 174 Ill. 2d 410, 418 (1996)) or, as in this case, if the trial court fails to make a finding that it is frivolous within 90 days, as required under section 122-2.1 of the Act (People v. Vasquez, 307 Ill. App. 3d 670, 672-73 (1999); 725 ILCS 5/122-2.1 (West 2010)). At the second stage of postconviction proceedings, the defendant may be appointed counsel, who may file an amended petition, and the State may file a motion to dismiss or an answer to the petition. Gaultney, 174 Ill. 2d at 418; 725 ILCS 5/122-4, 122-5 (West 2010)). The question for the court at this stage is "whether the petition and any accompanying documentation make a substantial showing of a constitutional violation." People v. McGhee, 2012 IL App (1st) 093404, ¶ 9. ¶ 20 While postconviction counsel may be appointed during the second-stage, the right to counsel in postconviction proceedings is wholly statutory (see 725 ILCS 5/122-4 (West 2010)), and petitioners are entitled only to a reasonable level of assistance (People v. Kelly, 2012 IL App (1st) 101521, ¶ 28). The assistance which postconviction counsel is required to provide a defendant is outlined in Rule 651(c), which states that counsel must: (1) consult with the defendant to ascertain his contentions of constitutional deprivations; (2) examine the record of the trial proceedings; and (3) make any amendments to the pro se petition necessary to adequately present the defendant's contentions. Ill. S. Ct. R 651(c) (eff. Feb. 6, 2013); People v. Milam, 2012 IL App (1st) 100832, ¶ 28. Under Rule 651(c), there is no requirement that postconviction counsel must amend a defendant's pro se petition or scour the record to uncover claims that were not raised by the defendant. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). However, Rule 651(c) requires that postconviction counsel must make any amendments to the pro se petition necessary to adequately present the defendant's contentions. Id. Stated otherwise, postconviction counsel must shape the defendant's pro se claims into appropriate legal form. Milam, 2012 IL App (1st) 100832, ¶ 28. ¶ 21 In this case, the defendant first contends that postconviction counsel should have amended his petition to frame his claims of trial counsel's ineffectiveness in failing to adequately impeach Officer Eaker as claims of ineffective assistance of appellate counsel in order to avoid procedural default. The defendant relies on People v. Turner, 187 Ill. 2d 406, 409 (1999), for his argument that we should reverse the court's denial of petition and remand for counsel to amend his petition. We disagree. ¶ 22 In People v. Turner, 187 Ill. 2d 406, 409 (1999), the defendant alleged in his postconviction petition that his trial counsel was ineffective for failing to discover and impeach a witness with evidence which was withheld by the State and with statements he made to undisclosed family members and prisoners at the jail. Postconviction counsel did not amend the petition and did not file any necessary affidavits. Id. The trial court determined that the defendant's claims were forfeited because they could have been raised in his direct appeal but were not, and the defendant appealed, arguing that counsel should have amended his petition in order to avoid procedural default. Id. at 409-10. The supreme court agreed, finding that had counsel amended the petition to allege ineffective assistance of appellate counsel for failing to raise petitioner's claims on direct appeal, his claims would not have been forfeited. Turner, 187 Ill. 2d at 406. In so holding, the court stated that postconviction counsel's performance "was so deficient that it amount[ed] to virtually no representation at all," noting that counsel had failed to attach necessary affidavits of various witnesses, failed to make routine amendments to the petition, and made incorrect statements about postconviction proceedings before the trial court. Turner, 187 Ill. 2d at 206, 414-15. The Turner court further stated that ie would be improper to consider the merits of the defendant's claims where counsel had failed to appropriately amend them and that the trial court would have the opportunity to consider the merits upon remand once the defendant had received reasonable assistance by postconviction counsel. Id. at 416. ¶ 23 First, unlike in Turner, the defendant's petition included his letter to Ellerbrook in which he complained that Ellerbrook did not include his claims of ineffective assistance of trial counsel in his direct appeal. Additionally, postconviction counsel amended the petition to include the defendant's affidavit in which he attested to the fact that he had sent his letter to Ellerbrook complaining that Ellerbrook failed to include these claims in his direct appeal. Ths, unlike in Turner, postconviction counsel did not fail to present the defendant's claims and had amended the petition to include the necessary affidavits to ensure his claims were properly presented before the court. ¶ 24 Second, we cannot find that postconviction counsel's performance was so deficient that it amounted to virtually no representation at all. Unlike counsel in Turner, counsel in this case attached the necessary affidavits to support the defendant's claims, researched the trial court record and relevant law to make any necessary amendments to the petition, and notified the defendant of her findings, namely that his claims lacked any basis in law or fact. Under these facts, we cannot find that the defendant received unreasonable assistance of postconviction counsel. ¶ 25 We also reject the defendant's argument that postconviction counsel should not have undermined his interests by informing the court that his claims lacked merit. It was the defendant who invited counsel's comments to the court by filing his motion, with privileged correspondence attached, alleging that postconviction counsel lied to him about the merits of his case and provided "ineffective" assistance of counsel. The record demonstrates that, in order to avoid a conflict, counsel moved to withdraw after the defendant filed the motion and attached privileged materials. However, the trial court denied counsel's motion to withdraw, forcing her to defend herself against the defendant's allegations. Accordingly, postconviction counsel explained her research and findings to the court in order to establish that her letter and statements to the defendant were not lies, but supported by the record and law. ¶ 26 Moreover, the trial court in this case did not simply dismiss the defendant's claim regarding Officer Eaker's testimony based on procedural default. The court's order mentions the defendant's various claims that the prosecution presented "perjured" testimony from Officer Eaker and that trial counsel failed to impeach Officer Eaker with his "prior inconsistent statements" made during his testimony at the motion to suppress. Regarding the defendant's claims, the trial court specifically stated that: "there is nothing in the record to support" the defendant's claim that the State knowingly presented perjured testimony; that "any inconsistencies" in Officer Eaker's pretrial testimony "were brought out by" defense counsel and "considered by the court"; and, the credibility of Officer Eaker's trial testimony "was argued at trial in the motion for directed finding, in closing argument, in posttrial motions and on appeal, so is res judicata." Therefore, the defendant's claim that counsel's failure to amend the petition caused his claim to be procedurally defaulted is unsupported by the record as the court had considered the merits of the defendant's claims pertaining to the impeachment of Officer Eaker and determined that the record did not support them. It follows that the court could not have determined that appellate counsel was ineffective for failing to raise these baseless claims in the defendant's direct appeal. See People v. Simms, 192 Ill. 2d 348, 362 (2000) (a defendant does not suffer prejudice from appellate counsel's failure to raise a nonmeritorious claim on appeal; thus, if trial counsel's performance was not ineffective, it follows that appellate counsel was not ineffective for not raising claim of trial counsel's performance). ¶ 27 Next, the defendant argues that we should vacate the order assessing him with frivolous filing fees pursuant to section 22-105 of the Code. He contends that such fees are typically imposed after postconviction petitions are dismissed during the first stage as the supreme court has equated the definition of "frivolous" in section 22-105 of the Code with the standard for first stage postconviction petition dismissals. See People v. Alcozer, 241 Ill. 2d 248, 254-59 (2011) (equating the definition of "frivolous" in section 22-105 of the Code of Civil Procedure with the standard for dismissal of a postconviction petition at the first stage of proceedings). On this point, we agree with the defendant. The defendant's petition advanced to the second stage and was not dismissed at the first stage for being frivolous or patently without merit. See, McGhee, 2012 IL App (1st) 093404, ¶ 61 (denying State's request for frivolous filing fees where the defendant's petition advanced to the second stage of postconviction proceedings). Accordingly, we vacate circuit court's order which imposed the frivolous filing fee on the defendant. ¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Cook County which dismissed the defendant's postconviction petition, and we vacate the circuit court order which imposed frivolous filing fees pursuant to section 22-105 of the Code. ¶ 29 Affirmed in part; vacated in part.