People v. Barnslater

• Decision Date: 04 May 2007
• Docket Number: No. 1-05-3172.,1-05-3172.
• Citation: 869 N.E.2d 293
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wayne BARNSLATER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

869 N.E.2d 293

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wayne BARNSLATER, Defendant-Appellant.

No. 1-05-3172.

Appellate Court of Illinois, First District, Sixth Division.

May 4, 2007.

Rehearing Denied June 5, 2007.

Kathleen T. Zellner, Douglas H. Johnson, Kathleen T. Zellner & Associates, Naperville, for Appellant.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Michele Grimaldi Stein, Brian K. Hodes, Assistant State's Attorneys, Cook County State's Attorneys Office, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Defendant, Wayne Barnslater, appeals from the circuit court's grant of the State's motion to dismiss his postconviction petition at the second stage of postconviction review. On appeal, he contends that he made the necessary substantial showing of a freestanding claim of actual innocence of the aggravated criminal sexual assault to which he pled guilty so as to preclude his petition's dismissal. He further argues that the circuit court erred in rejecting his petition's challenge to the voluntariness of his plea, even if res judicata applied, since fundamental fairness would mandate the relaxation of that procedural bar where the plea was obtained by a threat from his own counsel. We affirm.

FACTUAL BACKGROUND

The State charged defendant with, among other charges, aggravated kidnaping and aggravated criminal sexual assault, in a 68-count indictment on March 9, 1999. The charges stemmed from an alleged incident involving defendant, two codefendants, and 19-year-old Y.B.

On December 22, 1999, defendant took part in a Supreme Court Rule 402 (177 Ill.2d R. 402) conference with the State and the circuit court. At the conclusion of that hearing, the circuit court stated:

"My understanding is the plea of guilty would be to * * * two counts of aggravated criminal sexual assault, one count of aggravated kidnaping.

I indicated the State is recommending that I sentence the defendant to a period of six years Illinois Department of Corrections as to the aggravated criminal sexual assault count involving vaginal intercourse and also to six years Illinois Department of Corrections on the one alleging contact, mouth to the penis, and that pursuant to the statute that these sentences be made consecutive, so he'd be serving a period of 12 years.

The aggravated kidnaping count would merge into the counts as it is a predicate offense to the aggravated criminal sexual assault counts. The other counts would be nolle prossed pursuant to the plea agreement."

Following the hearing, defendant pled guilty to those two counts of aggravated criminal sexual assault and one count of aggravated kidnaping.

Following a colloquy between the circuit court and defendant in which defendant stated that he "was not threatened in any way in order for [him] to plead guilty," the State presented the factual basis for defendant's plea. The prosecutor stated:

"If this case were to go to trial, the evidence would show that on March 9, 1999, at approximately between the hours of seven p.m. and 10:11 p.m., at the address of 490 Madison, Calumet City, Cook County, the State of Illinois, the residence of Wayne Barnslater, that [Y.B.], the victim, went over there with Joe Michael Clemmons and David Jackson, codefendants, under the ruse to baby-sit.

When she arrived there, the three defendants and her were sitting around drinking. The defendant, Mr. Barnslater, had a fifth of gin. He poured about three to four shots worth of gin and 7-Up in a glass and [Y.B.] drank it straight down.

After approximately 20 minutes, she was in the kitchen using the phone. They had been talking about having sex. The defendant, Mr. Barnslater, went into the kitchen where she was on the phone, pulled down his pants showing her his penis. She laughed. He walked out of the room.

At that time shortly thereafter, she went into the bedroom, and fell asleep in the bed. He went into the bedroom, saw one of the codefendants having sex with her. She was moaning as in a drunken stupor. Subsequently the defendant then placed his penis in her mouth while the other individual was having vaginal intercourse with her. Mr. Barnslater did the oral intercourse at that time.

Subsequently, after the others were done, the defendant went back placed his penis in her vagina. When she was still unresponsive, he left it in her for approximately a minute or so, and when she was unresponsive, he then pulled it out and left the room.

During this time the police had come to the door along with the victim's mother asking for the victim. The defendant answered the door indicating she was not there.

However, later when the police came back, he indicated she, in fact, was there, and that she was unconscious in the bedroom. The officer went in. She was transported to St. Margaret's Hospital where it was learned that she had a blood alcohol content of .264, in her system at that time.

During the acts of intercourse, she would testify that she was unable and unwilling to give consent or unknowing [sic] due to the fact that she was under the influence of alcohol."

Defense counsel stipulated to the State's proffered factual basis for the plea.

On January 20, 2000, defendant moved to withdraw his guilty plea. He alleged that defense counsel and the State worked together to convince him to plead guilty in spite of insufficient evidence to prove his guilt. While never averring that he did not have sex with Y.B. while she was intoxicated, he contended that she never complained of being kidnaped and that he did not force her to drink. According to defendant, in this motion, Y.B. went to his bedroom voluntarily with a friend of his. In a supplement to his motion to withdraw his plea, filed on March 20, defendant further alleged, among other things, that he was "denied the right to a fair trial" because defense counsel told him to plead guilty and accept a 12-year sentence because, if he did not, in light of his criminal history, he would receive a 20-year sentence. The circuit court denied the motion, after a hearing, on June 19, 2000.

Subsequently, defendant made a direct appeal asserting, among other things, that his attorney was ineffective for counseling him to plead guilty on account of his criminal history when the attorney misattributed to him a conviction of a different person bearing the same name as he. He further argued that counsel compelled him to plead guilty through misrepresenting his criminal history and, thereby, rendered his plea involuntary. However, this court affirmed, noting that defendant's true criminal record was so extensive that counsel's representation of the additional "phantom" was not so material as to render his plea involuntary, and also observing that defense counsel had negotiated for the statutory minimum sentences on the charges for which defendant would be sentenced, and that their consecutive service was also mandated by statute.

On June 18, 2002, defendant filed a pro se postconviction petition. Therein, he made a "freestanding claim of innocence, as a result of newly discovered evidence." In support of his claim he attached his own affidavit in which he criticized defense counsel for "only repeatedly insist[ing] he accept the plea, because the judge [was] going to give [him] a considerable amount of time." He also attached the affidavit of Y.B. in which she stated:

"Mr. Barnslater on the night of March 9, 1999, did not sexually assault me ( [Y.B.]) in any way, form or fashion nor was I held against my will. No one at that residence forced me to drink. My alcohol consumption was of my choice.

I was intoxicated and coerced into making accusations that was not the truth against Mr. Barnslater."

Subsequently, on September 3, in a pro se motion to amend his pro se petition, defendant attached an unsworn letter addressed "to whom it may concern," from attorney Roger L. Brown. In his letter, dated August 21, 2002, attorney Brown stated:

"Please be advised that I personally interviewed Ms. [Y.B.] on August 19, 2002. At that meeting, she informed me that Mr. Wayne Barnslatter [sic] did not sexually assault her. When I queried as to why she had not come forth with this information sooner, and why, according to the attached affidavit, she felt she had been `coerced into making accusations that were not the truth against Mr. Barnslater,' Ms. Y.B. indicated her mother was the force controlling the charges which were b[r]ought. She stated told me that she had really no say in how the charges were b[r]ought and that her mother controlled the entire situation. But she did state without hesitation that Mr. Barnslatter [sic] did not sexually assault her."

Defendant's pro se petition survived the first stage of review. The public defender, appointed to represent defendant under the Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq. (West 2002)), filed defendant's supplemental postconviction petition on September 24, 2004. In the body of the supplemental petition, defendant exclusively premised his relief on his freestanding claim of actual innocence based on newly discovered evidence. The petition did not purport to attack the voluntariness of his plea or the performance of counsel. In support of his contention that the recantation evidence presented was "newly discovered," defendant alleged:

"[Y.B.] was the State's witness. She was within their control and influence. Her personal testimony was not of record, their [sic] was a stipulation to the evidence to be submitted for purposes of the plea. The evidence submitted to the court for the plea was based on testimony submitted by the State's Attorney regarding what they would have been presented [sic] had the case went to trial.

Due to the stipulation the [trial] attorney was unable to cross examine the truth or veracity of the statements read into the record by opposing Counsel, and unfortunately there was no way to ascertain that Ms. Y.B.'s...