People of The State of Ill. v. ENGLISH
| Decision Date | 09 July 2010 |
| Docket Number | No. 1-08-1868.,1-08-1868. |
| Citation | 342 Ill.Dec. 780,403 Ill.App.3d 121,933 N.E.2d 366 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny ENGLISH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
403 Ill.App.3d 121
933 N.E.2d 366
342 Ill.Dec. 780
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Johnny ENGLISH, Defendant-Appellant.
No. 1-08-1868.
Appellate Court of Illinois,First District, Fifth Division.
July 9, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
State Appellate Defender, Chicago, IL, Patricia Unsinn, Deputy Defender, Brian E. Koch, Assistant Appellate Defender, for Appellant.
State's Attorney, County of Cook, Chicago, IL, Anita Alvarez, State's Attorney; Alan J. Spellberg, Michelle Katz, Hareena Meghani-Wakely, Assistant State's Attorneys, of counsel, for Appellee (Petitioner).
Justice FITZGERALD SMITH delivered the opinion of the court:
Defendant Johnny English appeals the denial of his successive postconviction petition following an evidentiary hearing.
Defendant filed a pro se successive postconviction petition for relief from judgment under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) relating to his conviction of
first degree murder for the shooting death of Frank Klepacki and the attempted first degree murder for the nonfatal shooting of Casey Klepacki. The trial court appointed post-conviction counsel to represent defendant. The State filed a motion to dismiss this petition. After a hearing, the trial court granted the State's motion to dismiss as to some claims, but not as to others. After an evidentiary hearing was held on the remaining claims, the trial court denied defendant's petition. Defendant appeals, contending that the trial court erroneously denied his postconviction petition after an evidentiary hearing where he was denied the effective assistance of trial counsel where counsel failed to investigate and call various alibi witnesses. For the following reasons, we affirm.
Following a bench trial, defendant was convicted of first degree murder, attempted first degree murder, and armed robbery. Defendant was sentenced to concurrent prison terms of 70 years, 30 years, and 30 years, respectively. On direct appeal, this court affirmed defendant's convictions and sentence. People v. English, No. 1972365, 302 Ill.App.3d 1090, 254 Ill.Dec. 152, 746 N.E.2d 909 (1999) (unpublished order under Supreme Court Rule 23). Because the facts of the offense are fully set out in our order on direct appeal, we restate here only those facts necessary to an understanding of defendant's current appeal.
The State's evidence at trial, including defendant's pre-trial confession and the eyewitness testimony of the surviving victim, established the following. At approximately 9:30 p.m. on March 19, 1995, defendant
and codefendant James Davis 1 were selling drugs outside of a house on the west side of Chicago. Codefendant approached defendant, informing him he had just sold drugs inside the house to “two white dudes” who would be “sweet victims” because they had a lot of money and would be easy to rob. Defendant and codefendant then determined that they would rob the victims, Casey and Frank Klepacki, by stationing themselves outside of a gangway on either side of the exit.
Casey and Frank exited the building. Casey waved at defendant, whom he knew from prior encounters. Then, defendant and codefendant drew their guns, beat the victims about their heads with the guns, and pulled the victims toward a porch at the back of the building. Defendant pulled Frank up on the porch, forcing him to lie down. Meanwhile, codefendant put his gun to Casey's head. He ripped a
necklace from Casey's neck and forced him to remove his shoes and socks to look for money. When he found no money, defendant told Casey to remove his pants. Casey complied. Then, Casey said, “If you're going to kill us, why don't * * * you just do it.” Defendant apparently tried to shoot Frank, but the gun misfired. Casey saw that defendant had Frank in a headlock and was holding a smoking gun. Defendant then pointed the gun at Casey while codefendant patted him down. Codefendant was also aiming his gun at Casey while he did this. Then, defendant shot Casey in the back. Casey ran, but fell down and pretended to be dead while codefendant, still holding his gun, approached to check on him. After codefendant left, Casey fled. He heard two more shots fired as he did so. Frank was later discovered dead in the gangway, with a trail of blood leading from the porch. He had been shot at close range in the chest. In defendant's statement to the police, he admitted to the robbery, but claimed that codefendant was the shooter.
The State's evidence included testimony by William Wilson that he heard gunshots and then saw defendant run past him. He followed defendant as defendant attempted to unjam a handgun. When Wilson caught up with defendant, defendant told him that he and codefendant had tried to rob two men and that he had killed one and shot the other. Wilson had two prior convictions for unlawful use of a weapon, one for possession of a controlled substance with intent to deliver, and one for delivery of a controlled substance.
Defendant did not testify at trial. The defense rested without presenting further evidence. The defense theory was centered on the alleged unreliability of the surviving victim's eyewitness identification of defendant.
The trial court found defendant guilty of first degree murder, attempted first degree murder, and armed robbery.
Defendant appealed. On direct appeal, defendant alleged that the trial court's determination that the shootings were brutal and heinous was improper and that his sentences were excessive. People v. English, No. 1972365, 302 Ill.App.3d 1090, 254 Ill.Dec. 152, 746 N.E.2d 909 (1999) (unpublished order pursuant to Supreme Court Rule 23). This court affirmed defendant's convictions and sentences. People v. English, No. 1972365, 302 Ill.App.3d 1090, 254 Ill.Dec. 152, 746 N.E.2d 909 (1999) (unpublished order pursuant to Supreme Court Rule 23).
Initial Postconviction Petition
Defendant then filed a pro se petition for postconviction relief in 1999. In his petition, defendant alleged that his constitutional rights had been violated because: (1) he received ineffective assistance of
trial counsel when his public defender failed to call two alibi witnesses (Farris Skinner and Ronald Streeter) on defendant's behalf; (2) he received ineffective assistance of trial counsel when his public defender failed to adequately prepare for trial; (3) the prosecution knowingly presented perjured testimony at trial; (4) the prosecution never called a witness they named in their opening statement; (5) he received ineffective assistance of trial and appellate counsel for failing to notice, argue, preserve, and raise the prosecutorial error issue; (6) the eyewitness identification made by the surviving victim was unreliable because it was a cross-racial identification; (7) there was insufficient evidence to place defendant at the crime scene if the victim's identification and the alleged perjured testimony were suppressed; (8) he was denied due process and equal protection where he did not understand the statement signed at the police station and could not read the statement; and (9) he received ineffective assistance of appellate counsel for failing to raise the above issues on appeal.
Defendant's petition did not include the requisite affidavits. Defendant requested additional time to file these affidavits. The court continued the postconviction proceedings, waiting for the submission of the affidavits. On March 8, 2001, two days before the 90-day first-stage dismissal was to expire, the trial court appointed counsel to represent defendant and allowed the petition to proceed to the second stage of review without the supporting affidavits. In October 2001, the State filed a motion to dismiss the petition.
On January 7, 2002, appointed postconviction counsel informed the court that, after significant investigation, he was unable to locate the uncalled witnesses. The investigator, however, located William Hughes and William Wilson, but was unable to obtain useful information from them. As a result, counsel stated that he would not be able to amend defendant's petition or file supporting affidavits. Counsel filed a supplemental petition in which he asserted that defendant's sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also filed his Rule 651(c) (134 Ill.2d R. 651(c)) certificate attesting that he complied with the requirements of the Post-Conviction Hearing Act.
After a hearing on the motion, the court dismissed the petition on January 7, 2002. In doing so, the court found that defendant did not make a “substantial showing of a constitutional deprivation” and that no further hearing was required. It also found that Apprendi did not apply to issues raised on collateral review.
Defendant appealed the dismissal of his petition. However, defendant raised a new claim on appeal, asserting that his trial counsel was ineffective in the way he handled defendant's motion to suppress
statements. Specifically, defendant alleged that his attorney failed to present expert testimony at the hearing to demonstrate that defendant's Miranda waiver was not knowing and intelligent. Defendant also argued that his appellate and postconviction counsel were ineffective for failing to raise this issue.
This court affirmed the dismissal of defendant's postconviction petition. We held that the issue raised for the first time on appeal was waived and that, because the new ineffective assistance of counsel claim lacked merit, waiver was not excused.
People v. English, No. 1020280, 346 Ill.App 1174, 310 Ill.Dec. 550, 866 N.E.2d 711...
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