People v. Buckner

• Decision Date: 13 March 2015
• Docket Number: No. 1-11-3487,1-11-3487
• Parties: PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. EDWARD BUCKNER, Petitioner-Appellee.
• Court: United States Appellate Court of Illinois

2015 IL App (1st) 113487-U

PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. EDWARD BUCKNER, Petitioner-Appellee.

No. 1-11-3487

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SIXTH DIVISION

March 13, 2015

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

03 CR 1866

Honorable Joseph M. Claps, Judge Presiding.

JUSTICE HALL delivered the judgment of the court.

Justice Lampkin and Justice Rochford concurred in the judgment.

ORDER

Held: Postconviction court's order, following a third-stage evidentiary hearing, granting the petitioner's request for a new trial based upon its finding that trial counsel was ineffective for failing to make a pretrial challenge to the victim's competency to testify, was not manifestly erroneous.

¶ 1 The State appeals from an order of the postconviction court granting petitioner Edward Buckner's petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Following a third-stage evidentiary hearing under the Act, the postconviction court granted the petitioner's request for a new trial on the ground that his trial counsel was ineffective for failing to make a pretrial challenge to the victim's competency to testify where the victim was barely three years old at the time of the offenses and seven years old at the time of trial. The primary issue in this postconviction appeal is whether the court erred in this regard. The State raises a number of arguments as to why it believes the court erred in granting the postconviction relief. For the reasons that follow, we affirm.

¶ 2 In January 2003, petitioner was charged with three counts of predatory criminal sexual assault and two counts of aggravated criminal sexual abuse of his female cousin C.M. It was alleged that the petitioner committed various acts of sexual penetration upon C.M., a person under the age of thirteen. At the time of the alleged incidents, petitioner was 18 years old, and the victim was barely 3 years old.

¶ 3 Following a bench trial, petitioner was found guilty of one count of predatory criminal sexual assault and sentenced to 10 years' imprisonment. On direct appeal, we affirmed petitioner's conviction and sentence and corrected the mittimus to reflect presentence custody credit. People v. Buckner, No. 1-06-2804 (2008) (unpublished order under Supreme Court Rule 23). The Illinois Supreme Court denied his petition for leave to appeal. People v. Buckner, 231 Ill. 2d 672 (2009).

¶ 4 On December 22, 2009, the petitioner, who was represented by counsel, filed a postconviction petition raising several allegations of ineffective assistance of trial counsel and due process of law. On March 17, 2010, the petitioner amended his postconviction petition toinclude claims of ineffective assistance of trial, as well as appellate counsel, for failing to challenge the competency of the victim.

¶ 5 The State moved to dismiss the amended postconviction petition. After hearing arguments from the parties, the postconviction court denied the State's motion to dismiss and scheduled an evidentiary hearing. Following the evidentiary hearing, where various witnesses for both sides testified, the court entered an order on October 12, 2011, granting the petitioner's request for a new trial based upon its finding that trial counsel was ineffective for failing to make a pretrial challenge to the victim's competency to testify. The court ordered defendant, who had by that time served over half of his ten year sentence, released on bond pending appeal.

¶ 6 This appeal followed. The parties are familiar with the underlying facts of the case. Moreover, the facts are set out at length in our decision on direct appeal and therefore we repeat only those facts relevant to the disposition of the issues raised in this postconviction appeal.

¶ 7 ANALYSIS

¶ 8 In a noncapital case such as this, the Act provides a three-stage process by which criminal defendants may assert that their convictions or sentences were the result of a substantial denial of their constitutional rights. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). "Throughout the second and third stages of a postconviction proceeding, the defendant bears the burden of making a substantial showing of a constitutional violation." People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 9 In the instant case, petitioner's petition advanced to a third-stage evidentiary hearing. At this stage of the postconviction proceedings, the court acts as fact finder, determining witness credibility and the weight to be given particular testimony and evidence, and resolving any conflicts in the evidence. People v. Domagala, 2013 IL 113688, ¶ 34. If a petition advances to athird-stage evidentiary hearing at which fact-finding and credibility determinations were made, it is reviewed for manifest error. Pendleton, 223 Ill. 2d at 473. "Manifest error is that which is 'clearly evident, plain, and indisputable.' " People v. Johnson, 206 Ill. 2d 348, 360 (2002) (quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).

¶ 10 As mentioned, this appeal concerns the postconviction court's finding that trial counsel rendered ineffective assistance of counsel. Both the United States and Illinois Constitutions guarantee a criminal defendant the assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This requires not only that a person accused of a crime have the assistance of counsel for his or her defense, but also that such assistance be "effective." United States v. Cronic, 466 U.S. 648, 655-56 (1984).

¶ 11 The test for determining an ineffective assistance of counsel claim was established in Strickland v. Washington, 466 U.S. 668, 691-98 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). The test is comprised of two prongs: deficiency and prejudice.

¶ 12 In order for a defendant to obtain reversal of a conviction based on an ineffective assistance of counsel claim, he or she must show that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced defendant that there is a reasonable probability that, absent the errors, the outcome of the trial would have been different. People v. White, 322 Ill. App. 3d 982, 985 (2001). "The fundamental concern underlying this test is 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " People v. Powell, 355 Ill. App. 3d 124, 14 (2004) (quoting Strickland, 466 U.S. at 686). A defendant must satisfy both prongs of the Stricklandtest and a failure to satisfy either of the prongs precludes a finding of ineffectiveness. People v. Patterson, 192 Ill. 2d 93, 107 (2015).

¶ 13 The State argues that the postconviction court erred in granting the postconviction relief because the court determined that trial counsel was ineffective without making a ruling on the deficiency prong of Strickland. In support of this argument the State relies upon the following italicized language in the court's order of October 12, 2011, where the court granted the petitioner's request for a new trial based upon its finding that trial counsel was ineffective for failing to challenge the competency of the victim to testify:

"At the evidentiary hearing, Dr. Galatzer-Levy testified regarding how counsel could have attacked the victim's competency. Although counsel's decision not to do so may have been trial strategy, Petitioner suffered prejudice from counsel's failure to pursue this argument. There was no physical evidence in this case; as a result, credibility of the victim and her mother were key to the State's case. Counsel did not subject the victim to any meaningful adversarial testing. In addition to presenting an expert, counsel could have called Charlotta Taylor Carter to testify regarding the victim's behavior after the incident allegedly occurred. The addition of this information would have bolstered Petitioner's case and may have altered the outcome at trial. Therefore, Petitioner has made a substantial showing that counsel was ineffective and is entitled to a new trial." (Emphasis added.)

¶ 14 The State contends that the above italicized language shows the postconviction court found that the petitioner had satisfied only the prejudice prong of Strickland. We must disagree.

¶ 15 The State's contention that the postconviction court's reference to "trial strategy" amounted to a "finding" of no deficiency under Strickland is not supported by the record. Whatthe record actually shows is the court determined that in light of the fact there was no physical evidence and that the State's case heavily rested upon the credibility of the victim and her hearsay statements to her mother, trial counsel's alleged strategy in deciding not to challenge the competency of the young victim was so unsound that no meaningful adversarial testing was conducted. A trial counsel's strategy is presumed reasonable unless "counsel's strategy was so unsound that no meaningful adversarial testing was conducted." People v. Cooper, 2013 IL App (1st) 113030, ¶ 72 (citing People v. Enis, 194 Ill. 2d 361, 378 (2000)). Here, the court determined that under the circumstances in this case, trial counsel's alleged strategy in deciding not to challenge the competency of the victim constituted an unsound strategy amounting to deficient performance.

¶ 16 We do not believe the postconviction court's decision was against the manifest weight of the evidence. The issue here is not whether the victim was competent to testify. The issue is whether trial counsel's failure to investigate and challenge the victim's competency to testify amounted to ineffective...