People v. Jones, 021717 ILCA4, 4-14-0594

Docket Nº:4-14-0594, 4-14-0595
Opinion Judge:KNECHT JUSTICE.
Party Name:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KOREY A. JONES, Defendant-Appellant.
Judge Panel:KNECHT JUSTICE delivered the judgment of the court, with opinion. Justices Harris and Pope concurred in the judgment and opinion.
Case Date:February 17, 2017
Court:Court of Appeals of Illinois

2017 IL App (4th) 140594

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

KOREY A. JONES, Defendant-Appellant.

Nos. 4-14-0594, 4-14-0595

Court of Appeals of Illinois, Fourth District

February 17, 2017

Appeal from Circuit Court of Sangamon County Nos. 07CF127 07CF312. Honorable Steven H. Nardulli, Judge Presiding.

KNECHT JUSTICE delivered the judgment of the court, with opinion. Justices Harris and Pope concurred in the judgment and opinion.

OPINION

KNECHT JUSTICE.

¶ 1 Defendant, Korey A. Jones, appeals from the second-stage dismissal of his postconviction petition and amended postconviction petition. In July 2007, defendant agreed to a negotiated plea deal and pleaded guilty to armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and home invasion (720 ILCS 5/12-11(a)(3) (West 2006)). In exchange for defendant's guilty plea, the State dismissed defendant's remaining charges. The trial court sentenced defendant to the agreed sentence of the plea agreement, 15 years for armed robbery and 30 years for home invasion, which it ordered to be served concurrently.

¶ 2 In August 2012, defendant filed a petition for postconviction relief. He alleged numerous constitutional violations, including a claim he was denied the effective assistance of counsel. In April 2014, defendant filed an amended petition for postconviction relief. In June 2014, the State filed a motion to dismiss defendant's petition and amended petition, which the trial court granted.

¶ 3 Defendant appeals, arguing (1) the record demonstrates postconviction counsel failed to provide reasonable assistance in violation of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and (2) the trial court erred in denying his postconviction petitions at the second stage because he made a substantial showing of ineffective assistance of trial counsel. We affirm.

¶ 4 I. BACKGROUND

¶ 5 On December 8, 2006, defendant entered a Walgreens store in Springfield, Illi- nois, with a handgun and demanded a clerk give him money from the cash register. Detective Mark Pointer, a detective with the Springfield police department, investigated the incident. After publicizing surveillance video from the store, police received a tip identifying defendant as the man in the video. United States marshals arrested defendant and conducted an interview at which Pointer was present. Defendant admitted robbing the Walgreens store using a firearm.

¶ 6 Pointer also asked defendant questions regarding a robbery at a Subway restaurant the same day as the Walgreens robbery. Defendant later implicated himself in the December 2006 Subway robbery and a November 2006 robbery of a Family Dollar store. In addition to those robberies, a victim of a January 2007 home invasion identified defendant from a police lineup as the person who had robbed him at gunpoint.

¶ 7 Defendant was charged with multiple offenses regarding the aforementioned inci- dents. At the time of the offenses, defendant was on mandatory supervised release for a 2005 aggravated battery conviction. In connection with the November 2006 Family Dollar store robbery, docketed as Sangamon County case No. 07-CF-127, the State charged defendant with armed robbery (count I) (720 ILCS 5/18-2(a)(2) (West 2006)), armed habitual criminal (count II) (720 ILCS 5/24-1.7(a) (West 2006)), unlawful possession of a weapon by a felon who had been convicted of a forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon by a felon while serving a term of mandatory supervised release (count IV) (720 ILCS 5/24-1.1(a) (West 2006)).

¶ 8 In connection with the December 2006 Subway restaurant robbery, docketed as Sangamon County case No. 07-CF-72, the State charged defendant with robbery (count I) (720 ILCS 5/18-1(a) (West 2006)), armed robbery (count II) (720 ILCS 5/18-2(a) (West 2006)), unlawful possession of a weapon by a felon who had been convicted of a forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon by a felon while serving a term of mandatory supervised release (count IV) (720 ILCS 5/24-1.1(a) (West 2006)).

¶ 9 In connection with the December 2006 Walgreens store robbery, docketed as Sangamon County case No. 07-CF-128, the State charged defendant with armed robbery (count I) (720 ILCS 5/18-2(a)(2) (West 2006)), armed habitual criminal (count II) (720 ILCS 5/24-1.7(a) (West 2006)), unlawful possession of a weapon by a felon who had been convicted of a forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon by a felon while serving a term of mandatory supervised release (count IV) (720 ILCS 5/24-1.1(a) (West 2006)).

¶ 10 In connection with the January 2007 home invasion, docketed as Sangamon County case No. 07-CF-312, the State charged defendant with home invasion (count I) (720 ILCS 5/12-11(a)(3) (West 2006)), armed robbery (count II) (720 ILCS 5/18-2(a)(2) (West 2006)), unlawful possession of a weapon by a felon who had been convicted of a forcible felony (count III) (720 ILCS 5/24-1.1(a) (West 2006)), and unlawful possession of a weapon by a felon while serving a term of mandatory supervised release (count IV) (720 ILCS 5/24-1.1(a) (West 2006)).

¶ 11 In July 2007, defendant entered a negotiated plea of guilty to one count of armed robbery in connection with the December 2006 Family Dollar store robbery (count I in No. 07-CF-127) and one count of home invasion (count I in 07-CF-312). In exchange, the State dismissed the remaining charges. The trial court admonished defendant of his rights at his plea hearing, including informing him of the minimum and maximum sentence, and the period of mandatory supervised release. Defendant confirmed he was satisfied with his communication with his attorney and was not taking any prescribed medication. The court sentenced defendant consistent with the terms of the plea agreement. Defendant took no direct appeal.

¶ 12 In June 2008, defendant filed a pro se motion to withdraw his guilty plea, which the trial court dismissed later that month as untimely. Defendant's motion alleged he "was denied the effective assistance of counsel when [he] was on medication for a gunshot wound and counsel let [him] enter a guilty plea." Defendant also alleged counsel was ineffective because he "was under a life threatening situation and [counsel] let him enter a guilty plea." Defendant took no appeal.

¶ 13 In August 2012, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2012)). Defendant again alleged he was denied the effective assistance of counsel. He also contended the State violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and numerous provisions of the Illinois constitution, including the proportionate penalties clause (Ill. Const. 1970, art. I, § 11), separation of powers clause (Ill. Const. 1970, art. II, § 1), and double jeopardy clause (Ill. Const. 1970, art. I, § 10). Defendant also alleged the State violated the equal protection and due process clauses of both the Illinois Constitution (Ill. Const. 1970, art. I, § 2) and the United States Constitution (U.S. Const., amend. XIV, § 1).

¶ 14 In September 2012, the trial court appointed counsel to represent defendant in postconviction proceedings. Two days later, defendant's postconviction counsel filed a motion to remove a copy of defendant's court file from the Sangamon County courthouse to "review the court file and [defendant's] pro se pleadings, then communicate with [defendant] what amendments, if any, are required for [defendant's] post-conviction proceedings." The court granted the motion.

¶ 15 In late September 2012, the State filed a motion to dismiss defendant's petition for postconviction relief. The State argued (1) defendant's petition failed to state facts and merely stated legal conclusions, (2) defendant waived his right to claim errors that could have been raised on direct appeal, and (3) defendant's petition was not filed within the three-year period after his conviction as required by the Act (725 ILCS 5/122-1(c) (West 2012)).

¶ 16 In January 2014, defendant's postconviction counsel filed a motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Counsel asserted, inter alia, defendant "cannot demonstrate that his trial counsel's performance was deficient" and "cannot show that there is a reasonable probability that, but for [trial] counsel's alleged errors, [defendant] would not have entered a plea of guilty."

¶ 17 Postconviction counsel explained defendant took issue with the armed habitual criminal (720 ILCS 5/24-1.1(a) (West 2006)) charges that were later dismissed as part of his plea agreement. Defendant argued he did not meet the statutory requirements for the armed habitual criminal charges in light of courts' interpretation of that statute after he pleaded guilty herein, but his trial counsel failed to advise him to take the position these courts later adopted and, therefore, was ineffective as counsel. Postconviction counsel acknowledged trial counsel believed the two predicate offenses required for the charge of habitual criminal were present, but the First District Appellate Court later concluded, in a decision two years after defendant's guilty plea, aggravated battery without bodily harm does not qualify as a predicate offense. People v. Schmidt, 392 Ill.App.3d 689, 924 N.E.2d 998 (2009); see In re Rodney S., 402 Ill.App.3d 272, 287, 932 N.E.2d 588, 601 (2010) ("We[, the Fourth District, ] adopt the First District's analysis in Schmidt ***."). Postconviction counsel argued, however, under Strickland v. Washington, 466 U.S. 668 (198...

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