People v. Brown

• Decision Date: 19 September 2017
• Docket Number: No. 1-15-0203,1-15-0203
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norman BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 150203
89 N.E.3d 865

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Norman BROWN, Defendant-Appellant.

No. 1-15-0203

Appellate Court of Illinois, First District, SECOND DIVISION.

Opinion filed September 19, 2017

Michael J. Pelletier, Patricia Mysza, and Ann B. McLennan, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Margaret G. Lustig, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Norman Brown appeals from the first-stage dismissal of his postconviction petition for relief under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2010)). Brown contends that the trial court erred in dismissing his petition because he presented an arguable claim that his trial counsel was ineffective for failing to investigate and present to the jury the knife used by the victim during the altercation in which Brown shot the victim.

¶ 2 We affirm. Brown could have raised counsel's failure to investigate or obtain the knife on direct appeal. Accordingly, this claim is forfeited and was properly dismissed as frivolous and patently without merit. And, even if not forfeited, Brown's allegation that trial counsel was ineffective for failing to investigate the knife is meritless. We also correct the mathematical miscalculation in the fines, fees, and costs order. But, Brown cannot resurrect in this appeal issues on the merits of assessments (which would have been properly raised, if preserved, in his direct appeal) as if he were applying the ministerial correction of a mathematical calculation called for under section 110-14 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/110-14 (West 2010) ). Brown has not persuaded us to ignore the lack of appellate jurisdiction. See People v. Griffin , 2017 IL App (1st) 143800, ¶ 21, 415 Ill.Dec. 241, 82 N.E.3d 186 (rejecting effort to "revest" appellate court with jurisdiction when jurisdiction never revested in trial court).

¶ 3 Background

¶ 4 In September 2010, Brown went to a jury trial on one count of aggravated battery with a firearm ( 720 ILCS 5/12-4.2(a)(1) (West 2010)) for shooting Robert Jacks. The facts presented at trial follow.

¶ 5 In 2010, Brown and Mary Chatman were married but divorcing. Brown lived in Indiana; Chatman in Chicago. They shared custody of their daughter. On January 10, 2010, Brown was scheduled to return their daughter to Chatman after a weekend visitation. Chatman told Jacks, her friend and second-floor neighbor, that she was worried

89 N.E.3d 868

about how the exchange would go with Brown.

¶ 6 That evening, Brown brought their daughter up to Chatman's apartment instead of meeting Chatman downstairs as arranged. Chatman asked Brown to leave and texted Jacks, alerting him to Brown's arrival. Brown used her bathroom, made sexual advances toward her, and attempted to discuss reconciliation.

¶ 7 Jacks and his daughter, Tracy, left their apartment to meet the child in the front of the building, but no one was there. Jacks called the police and went upstairs with Tracy to check on Chatman. Their arrival agitated Brown. He pushed them out into the hallway and locked the door. Tracy used a spare key to reenter, further agitating Brown. He yelled, pushed Tracy down, and grabbed Jacks's arm. Jacks grabbed Brown's arm. Tracy was a few feet inside the apartment; Jacks was in the hallway.

¶ 8 Chatman left the apartment with their daughter. Jacks blocked Brown from following them. Brown backed Jacks and Tracy into the hall. Tracy was between Brown and Jacks. Jacks testified that Brown drew his gun and aimed it at him and Tracy. In response, Jacks pulled out a knife, which he testified was small, sharp-pointed, and primarily used for cutting small items like butter. He kept the knife with him for protection in the neighborhood. Jacks testified that he did not swing the knife at Brown or threaten him with it.

¶ 9 Brown fired at the ground in front of Jacks' feet several times, hitting Jacks' leg with his last shot. Jacks was taken to the hospital, where it was determined that the bullet went through his leg. Tracy testified that she was in front of her father and never saw a knife.

¶ 10 Chicago police officer Edwin Jones, an evidence technician, recovered one fired .32-caliber bullet and .32-caliber bullet casing and observed blood on the hallway floor outside of Chatman's apartment. He recovered nothing else in either the hallway or apartment.

¶ 11 Brown testified that he drew his gun after Jacks pulled out a kitchen knife with an eight-inch blade, reached around Tracy, and tried to cut Brown with it, nicking his arm. He repeatedly told Jacks to drop the knife, telling him "[d]rop the damn knife[,] I'm not playing with you." He "wasn't trying to shoot [Jacks]. [He] just figured he was a damn fool in the first place." Asked whether he shot Jacks on purpose or to scare him, Brown responded that he "just wanted him to drop the knife" and "wasn't planning on shooting at all." He "just wanted to let [Jacks] know he wasn't playing with him" where Jacks had "came out like a coward and reached around and came straight at" him. After the shooting, Brown immediately left and drove back to Indiana. He admitted he discarded the gun along the way.

¶ 12 In closing, defense counsel argued that Jacks was irrational and "unbalanced" and Brown was justified in discharging his gun because Jacks was coming at him with a knife and Brown had no alternative. The jury found Brown guilty of aggravated battery with a firearm.

¶ 13 In February 2011, the trial court conducted an inquiry under People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), on Brown's posttrial motion claiming ineffective assistance of counsel. Brown asserted that counsel was ineffective for, inter alia , failing to investigate the necessary evidence and failing to present evidence and arguments in support of his self-defense claim. Ultimately, the trial court found that trial counsel was not ineffective.

¶ 14 Brown's trial counsel filed a motion, and then an amended motion, for a new trial. The trial court denied Brown's motion to reconsider its Krankel ruling.

89 N.E.3d 869

Brown's trial counsel withdrew, and the court appointed a public defender. In April 2011, the court denied the public defender's request to reopen the Krankel hearing on Brown's ineffective assistance of counsel claims. The public defender filed a third amended motion for a new trial, which the trial court denied. Brown was sentenced to eight years' imprisonment.

¶ 15 Brown filed an appeal. Brown's appellate counsel filed a motion to withdraw under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that there were no meritorious issues to be raised on appeal.¹ Brown filed a response, arguing that he was not proven guilty beyond a reasonable doubt and that his trial counsel provided ineffective assistance of counsel. We granted the motion to withdraw and affirmed the judgment of the trial court, agreeing with appellate counsel that an appeal would be without arguable merit, People v. Brown , 2013 IL App (1st) 122919-U (summary order).

¶ 16 Brown filed a pro se petition and supplemental petition for postconviction relief, raising multiple claims. His sole claim on appeal is that his trial counsel was ineffective for failing to investigate or obtain the knife used by Jacks and present it to the jury. The trial court summarily dismissed Brown's postconviction petition, finding it frivolous and patently without merit. It concluded, inter alia , that, "while the size of the knife was in dispute," The trial court denied Brown's ineffective assistance of counsel claim for failure to investigate the knife as there was no prejudice "in light of [defendant's] own trial testimony that he shot the victim not because he believed that such conduct was necessary to defend himself, but instead because he wanted to scare the victim ." (Emphasis in original.)

¶ 17 Analysis

¶ 18 Brown argues that the trial court improperly dismissed his postconviction petition as it stated the gist of a constitutional claim of ineffective assistance of trial counsel for counsel's failure to investigate and obtain Jacks' knife. Brown also asks that we vacate one assessment and correct his fines and fees order to impose presentence custody credit against eligible fines.

¶ 19 Claim of Ineffective Assistance of Counsel

¶ 20 Brown first asserts he made an arguable constitutional claim of ineffective assistance of counsel in his postconviction petition based on trial counsel's failure to investigate or attempt to obtain the knife used by Jacks and present it to the jury. He asserts that the knife would have supported his theory of self-defense at trial and would have served to impeach Jacks's testimony regarding its size. The State responds that the court properly dismissed Brown's petition as he failed to make an arguable claim of ineffective assistance. Either it is barred by res judicata and forfeited, or fails on the merits.

¶ 21 "The Post-Conviction Hearing Act provides a procedural mechanism through which a criminal defendant can assert that his federal or state constitutional rights were substantially violated in his original trial or sentencing hearing." People v. Davis , 2014 IL 115595, ¶ 13, 379 Ill.Dec. 381, 6 N.E.3d 709. A proceeding initiated under the Act is "not a substitute for a direct appeal, but rather is a collateral attack on a prior conviction and sentence."

89 N.E.3d 870

Id. The Act allows inquiry into constitutional issues arising in the original proceeding that have not been raised and could not have been adjudicated on direct appeal. Id. Issues raised and decided on direct appeal are barred by the doctrine of res judicata , and issues that could have been raised on direct appeal are forfeited. Id.

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