Opinion
4-21-0436
07-06-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS MARSHALL, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County No. 17CF1645 Honorable Jason M. Bohm, Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.
ORDER
DeARMOND JUSTICE
¶ 1 Held: Postconviction counsel provided reasonable assistance and complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) when she amended defendant's petition and attached materials to support defendant's claims. That she did not attach an affidavit from an allegedly exculpatory witness did not rebut the presumption of reasonable assistance when counsel filed a Rule 651(c) certificate, and the affidavit was not necessary for determination of the claim.
¶ 2 In July 2019, defendant, Travis Marshall, pleaded guilty to second degree murder (720 ILCS 5/9-2(a)(1) (West 2018)), and the trial court sentenced him to 20 years in prison. In October 2019, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), contending in part his plea was involuntary based on ineffective assistance of trial counsel for failing to investigate witness Devonte Fondia. The court appointed postconviction counsel, who filed an amended petition and attached a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
In June 2021, the trial court granted the State's motion to dismiss defendant's amended postconviction petition.
¶ 3 Defendant appeals, contending postconviction counsel failed to comply with Rule 651(c) and provided unreasonable assistance by failing to include an affidavit from Fondia with defendant's amended postconviction petition. We affirm.
¶ 4 I. BACKGROUND
¶ 5 In July 2018, the State charged defendant with multiple crimes related to the November 25, 2017, fatal shooting of Martrell Johnson. The trial court appointed counsel to represent defendant, but in December 2018, defendant hired private counsel, and the court vacated its order appointing the Champaign County Public Defender's Office to represent defendant.
¶ 6 On July 3, 2019, the parties informed the court they had reached a fully negotiated plea agreement. Defendant agreed to plead guilty to second degree murder in exchange for the State dismissing the remaining charges and recommending a sentence of 20 years' incarceration. Defendant told the court he was 30 years old, had earned his GED, had no disabilities, was not taking medication, and was not under the influence of drugs or alcohol. He understood the terms of the plea agreement, had discussed it with trial counsel, and had not been coerced into making the plea.
¶ 7 The State presented the following factual basis for the plea. Johnson and another individual, DeMario Larkin, attended a party at an apartment complex in Champaign. Larkin got into an argument with others present at the party concerning alleged drug use. Larkin told the police defendant struck him on the head with a chrome or silver-colored handgun. The party's host and his mother then got in between Larkin and defendant, and Larkin and Johnson left the apartment together. The police obtained surveillance video from the stairwells of the apartment complex, showing Johnson, Larkin, and the party host exiting the building. Stairwell video also showed defendant, identified by the black clothing he wore as compared to a photo taken at the party, exiting down a different stairwell with his girlfriend, Camreona Russell, and an individual identified as Cozene Taylor.
¶ 8 After exiting the building, the six individuals encountered each other again in the parking lot. Surveillance video showed an individual in dark clothing, on the edge of the camera's view, pointing and firing a handgun multiple times. Johnson, standing in a more well-lit area, could be seen falling down in the same location where he was later found by the police. Johnson was struck in the chest and killed by one of the bullets fired. Video surveillance also showed Taylor and Russell going back into the apartment building. Defendant did not go back into the building. The first police officer to arrive at the scene found Larkin with Johnson's body. In her statement to police, Russell described the altercation in the apartment as escalating and loud. According to Russell, individuals present in the apartment began turning tables over. She described defendant as "filled with rage."
¶ 9 The State also proffered defendant's plea to second degree murder was based on a theory that, at the time of the shooting, defendant acted under a sudden and intense passion resulting from serious provocation. Defendant would testify, while in the parking lot, Johnson and Larkin were threatening him and his family and acting in an aggressive manner. In the heat of the argument, Johnson grabbed toward his waistband as if to produce a weapon.
¶ 10 Defense counsel agreed to the factual basis, and defendant stated he wanted to plead guilty. The trial court accepted defendant's guilty plea as knowing and voluntary and sentenced him to 20 years in prison. Defendant did not file a postplea motion or a notice of appeal.
¶ 11 However, on October 23, 2019, defendant filed a pro se postconviction petition alleging his guilty plea was involuntary based on ineffective assistance of trial counsel. Among the allegations, defendant alleged his trial counsel failed to investigate defendant's witness, Fondia. Defendant included an unsworn affidavit from Fondia in which Fondia stated the following: (1) Fondia was present at his mother's birthday party on November 26, 2017; (2) there were no fights, arguments, or altercations in the apartment; (3) his mother grew tired of the noise and kicked everyone out; (4) defendant was one of the last people to leave; (5) Fondia went out on the balcony to smoke a cigarette and saw defendant get into his car; (6) shortly after, Fondia's brother informed him there was shooting outside; (7) Fondia had spent the day with defendant and never saw him with a gun; and (8) Fondia spoke with defendant's appointed counsel in November 2018, but Fondia was never contacted by defendant's retained counsel.
¶ 12 In January 2020, the trial court advanced defendant's petition to the second stage of postconviction proceedings and appointed counsel for defendant. In July 2020, appointed counsel filed an amended postconviction petition alleging defendant's guilty plea was involuntary due in part to ineffective assistance of trial counsel for failing to investigate Fondia and instead devoting his efforts to persuading defendant to plead guilty. According to the amended petition, in November 2018, Fondia provided exculpatory evidence to Steven Guess, an investigator for the Champaign County Public Defender's Office, but trial counsel, retained in December 2018, failed to speak with Fondia.
¶ 13 Postconviction counsel attached an affidavit from Guess, averring he interviewed Fondia by phone and a true and accurate report of the interview was attached to the affidavit. According to the investigative report, Fondia told Guess the party was at his mother's apartment. Fondia denied there was a fight and denied defendant hit Larkin with a gun. He said Larkin was very intoxicated, and he never saw any injuries on Larkin. There were complaints from neighbors about the noise, and Fondia's mother yelled at everyone, telling them they were too loud. The party started to break up. Defendant was still in the apartment when Johnson left. Fondia did not hear the shots from outside. He never stepped outside of the apartment and did not know what happened outside. He knew of no motive for defendant to shoot Johnson.
¶ 14 Additionally, postconviction counsel attached an affidavit from defendant averring trial counsel told defendant he would speak with Fondia but never did. Defendant claimed trial counsel told him further investigation of the case would be "useless" and focused exclusively on persuading him to plead guilty to a crime he did not commit. Postconviction counsel also attached defendant's pro se postconviction petition to the amended postconviction petition but did not include Fondia's unsworn affidavit. Finally, postconviction counsel attached a Rule 651 (c) certificate certifying she consulted with defendant by phone, mail, electronic means or in person to ascertain his contentions of deprivation of constitutional nights, examined the court file and the record of proceedings of trial, and made amendments to the pro se postconviction pleading as necessary for adequate presentation of defendant's contentions.
¶ 15 In July 2020, the State moved to dismiss defendant's amended postconviction petition. The State argued in part the affidavit and investigative report from Guess was hearsay and could not substitute for an affidavit from Fondia. The State also argued it was clear defendant knew of Fondia's existence early in the case, that Fondia was investigated, and defendant never complained about his trial counsel at the guilty plea proceedings. Postconviction counsel filed a response standing on the arguments made in the amended petition.
¶ 16 The trial court dismissed defendant's amended postconviction petition. Regarding Fondia, the court held there clearly was an investigation of Fondia, and defendant failed to establish any deficiency in the investigation or what any further investigation would have produced. The court further held, even if there was a deficiency in the investigation, there was no basis to find it affected the outcome of the plea process because defendant knew Fondia's version of events when he pleaded guilty. Defendant told trial counsel Fondia had exculpatory evidence, yet he nevertheless chose to plead guilty despite his knowledge of Fondia's statements.
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 Defendant contends postconviction counsel failed to comply with Rule 651(c) and provided unreasonable assistance by failing to attach an affidavit from Fondia to the amended postconviction petition.
¶ 20 The Act provides a collateral means for a defendant to challenge a conviction or sentence for a violation of a federal or state constitutional right. People v. Jones, 211 Ill.2d 140, 143 (2004). At the first stage of postconviction proceedings, the trial court must determine, taking the allegations as true, whether the defendant's petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a) (2) (West 2018). At the second stage, "the State may move to dismiss a petition or an amended petition pending before the court." People v. Pendleton, 223 Ill.2d 458, 472 (2006). The defendant bears the burden of making a substantial showing of a constitutional violation. Id. at 473. At the second stage of proceedings, all well-pleaded facts not positively rebutted by the trial record are to be taken as true. Id.
¶ 21" [A] defendant in postconviction proceedings is entitled to only a 'reasonable' level of assistance, which is less than that afforded by the federal or state constitutions." Id. at 472. Our supreme court has specified counsel is required to perform only those duties outlined by Rule 651(c). People v. Greer, 212 Ill.2d 192, 204-05 (2004). These include the duty to (1) confer with the defendant to ascertain his claims of constitutional deprivations, (2) examine the record of the proceedings at trial, and (3) make any amendment to the pro se petition necessary to ensure the defendant's contentions are adequately presented. Pendleton, 223 Ill.2d at 472. Counsel is not required to advance frivolous or spurious claims on a defendant's behalf. Id. (citing Greer, 212 Ill.2d at 205). Postconviction counsel is also "not required to amend a defendant's pro se postconviction petition." People v. Kirk, 2012 IL App (1st) 101606, ¶ 21. "In fact, counsel's decision not to amend a defendant's pro se petition has been held not to constitute a deprivation of adequate representation where his claim lacks a sufficient factual basis." Id. "Our review of an attorney's compliance with a supreme court rule, as well as the dismissal of a postconviction petition on motion of the State, is de novo." People v. Profit, 2012 IL App (1st) 101307, ¶ 17.
¶ 22 The filing of a Rule 651 (c) certificate gives rise to a rebuttable presumption that postconviction counsel provided reasonable assistance. People v. Jones, 2011 IL App (1st) 092529, ¶ 23. Counsel's failure to supply necessary affidavits or other evidence will not rebut the presumption that arises from the Rule 651(c) certificate. Instead, a court ruling on a motion to dismiss a postconviction petition which is not supported by affidavits or other documents may reasonably presume postconviction counsel made a concerted effort to obtain affidavits in support of the claims but was unable to do so. People v. Johnson, 154 Ill.2d 227, 241 (1993). The defendant bears the burden of overcoming the presumption of reasonable assistance by demonstrating postconviction counsel's failure to substantially comply with Rule 651 (c). Jones, 2011 IL App (1st) 092529, ¶ 23.
¶ 23 Here, counsel provided a Rule 651(c) certificate. Thus, we presume, based on counsel's compliance with the certificate requirement, she attempted to obtain necessary affidavits in support of the postconviction claims. See Johnson, 154 Ill.2d at 241, see also Kirk, 2012 IL App (1st) 101606, ¶ 25. Defendant argues the record rebuts the presumption based on the presence of Fondia's unsworn affidavit attached to his pro se postconviction petition and counsel's failure to address why it was not attached to the amended pleading. But neither argument establishes postconviction counsel failed to attempt to obtain a sworn affidavit. The fact that Fondia provided an unsworn affidavit to defendant earlier fails to support the conclusion he would agree to provide a sworn affidavit to postconviction counsel later, or that the substance of the affidavit would have been of any greater benefit to defendant than what was contained in either the unsworn statement or the Guess report. Further, counsel was not required to explain its absence once counsel provided a proper Rule 651(c) certificate asserting compliance and providing other documents in support of defendant's allegations.
¶ 24 Cases cited by defendant to argue otherwise are distinguishable. For example, in Johnson, counsel's failure to support ineffective assistance claims with affidavits was unreasonable because counsel did not provide a Rule 651 (c) certificate and conceded he made no effort to contact the witnesses identified in the pro se petition. Johnson, 154 Ill.2d at 238, 241. In People v. Turner, 187 Ill.2d 406, 414-15 (1999), counsel failed to make a routine amendment to the defendant's pro se postconviction petition which would have overcome the procedural bar of waiver. Instead, counsel elected to stand on the pro se petition, which omitted essential elements of the constitutional claims and contained virtually no evidentiary support.
¶ 25 Here, in comparison, nothing affirmatively shows postconviction counsel failed to meet her obligations. Counsel supplied affidavits and evidence to support defendant's claims, including an investigative report of the interview Guess conducted with Fondia. The investigative report provided information to support the claims as alleged in the amended petition, which defendant does not argue were deficient. Moreover, it is notable the trial court did not rely on the lack of an affidavit from Fondia as the primary reason for dismissing the petition. Instead, the court reasoned that even if there was a deficiency in the investigation, there was no basis to find it affected the outcome of the plea process, because defendant knew Fondia's version of events when he pleaded guilty. Defendant does not challenge that finding, and we agree with the trial court the record belies any argument Fondia could have provided an affidavit of value to defendant. Thus, counsel's decision not to include an affidavit of little substantive value does not constitute a deprivation of adequate representation. See Kirk, 2012 IL App (1st) 101606, ¶ 2; see also People v. Schwab, 2022 IL App (4th) 200419-U, ¶ 37 (cited as persuasive authority pursuant to Illinois Supreme Court Rule 23(e) (eff. Jan. 1, 2021) (finding "defendant's argument ignores the fact that the trial court dismissed this claim of ineffective assistance of counsel not because it was unsupported by affidavits")). Because Fondia's affidavit would not have advanced defendant's arguments or changed the outcome of the guilty plea proceeding, it was not "necessary" to adequately present defendant's claim within the meaning of Rule 651(c).
¶ 26 III. CONCLUSION
¶ 27 Considering postconviction counsel's Rule 651 (c) certificate and efforts to amend the petition and support the claims, we presume counsel's representation was reasonable. Nothing in the record rebuts the presumption of reasonable assistance which otherwise accompanies a properly filed Rule 651 (c) certificate. Accordingly, we affirm the trial court's judgment.
¶ 28 Affirmed.