People v. Creater

• Decision Date: 24 February 2022
• Docket Number: 4-20-0431
• Citation: People v. Creater, 2022 IL App (4th) 200431U, 4-20-0431 (Ill. App. Feb 24, 2022)
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTWONE LAMONT CREATER, Defendant-Appellant.
• Court: Appellate Court of Illinois

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2022 IL App (4th) 200431-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTWONE LAMONT CREATER, Defendant-Appellant.

No. 4-20-0431

Court of Appeals of Illinois, Fourth District

February 24, 2022

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of McLean County No. 17CF970 Honorable Scott D. Drazewski, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Knecht and Justice Holder White concurred in the judgment.

ORDER

DeARMOND, JUSTICE

¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's judgment.

¶ 2 Defendant, Antwone Lamont Creater, appeals the trial court's first-stage dismissal of his pro se postconviction petition. On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent defendant. OSAD has filed a motion to withdraw as defendant's appellate counsel, asserting defendant's appeal presents no potentially meritorious issues for review. We grant OSAD's motion and affirm the trial court's dismissal of defendant's postconviction petition.

¶ 3 I. BACKGROUND

¶ 4 In September 2017, the State charged defendant by information with two counts of unlawful delivery of a controlled substance (720 ILCS 570/407(b)(2) (West 2016); 720 ILCS 570/401(d) (i) (West 2016)). Before trial, the State dismissed count I and proceeded solely on count II.

¶ 5 A. Jury Trial

¶ 6 1. Motion for a Continuance

¶ 7 On the morning defendant's jury trial was scheduled to begin, defense counsel approached the court, stating, "I don't know if this is the time to raise this issue or not, but the defendant is asking to move to continue the trial for a couple of reasons." Counsel explained defendant sought three witnesses, Ameer Taylor, Bryant McClelland, and Eddie Creater, to testify on defendant's behalf. (We note the record and defendant's postconviction petition refer to Bryant McClelland and also Brian McCullen. For consistency, we will refer to this individual as "McClelland.") Taylor was under subpoena, but he had an unrelated warrant for his arrest. McClelland and Creater had not been disclosed to the State as potential witnesses.

¶ 8 Defense counsel conferred with the State off the record and the State agreed to waive any objections to the late disclosures. Counsel stated he was "optimistic" McClelland would willingly come to testify the following day but thought it was unlikely Taylor would appear. Counsel informed the court Creater was in custody and would be available to testify. Counsel believed Taylor's trial testimony would be cumulative of McClelland's testimony as the purpose of the testimony was to contradict expected testimony from State witnesses Casey Wheeler and Dorian Parker that Wheeler and Parker were not previously acquainted. Counsel stated," [I]f we could get [McClelland's] testimony, I think that could substitute for Taylor." Therefore, counsel believed a continuance was not necessary, as McClelland was available if needed.

¶ 9 2. Trial

¶ 10 The State's first witness, Casey Wheeler, testified about her role as a paid confidential source with the Bloomington Police Department and, specifically, her purchase of heroin from defendant in September 2017. After recounting her past substance abuse struggles and her criminal record, Wheeler relayed the details of her interaction with defendant to purchase heroin. She testified defendant, via phone calls and text messages, instructed her to go to several different locations in Bloomington before eventually directing her to a bus stop, where the transaction took place. Defendant's cousin, Dorian Parker, arrived at the bus stop, and Wheeler and Parker engaged in the drug transaction. Wheeler stated she gave Parker $140 of the prerecorded currency provided by the police and Parker gave her one packet of heroin and a methadone bottle she had left at McClelland's house. She confirmed defendant arrived at the bus stop after the transaction and she spoke with him. The State introduced text messages between Wheeler and defendant where defendant expressed concern about the police watching him and Wheeler "setting him up." The text messages also alluded to defendant sending someone to meet Wheeler. Regarding her pending unrelated felony, she said she was hoping for leniency, but she indicated no promises were made. She testified she decided to become a confidential source because she wanted to stop using drugs and because she "knew that if [defendant] was off the streets I couldn't-I couldn't go there. I couldn't go to him."

¶ 11 Dorian Parker testified that in exchange for his testimony, the State would dismiss two of his nonprobationable felony counts arising from this incident and allow him to plead guilty to an amended probationable count. However, there was no agreement as to sentence. Parker said he had been a heroin addict for eight years, and he and his wife came to Bloomington from Harvey, Illinois, to visit his wife's cousin (defendant) over the Labor Day weekend. Parker stated he met with defendant on September 5, 2017, and agreed to deliver drugs for defendant. Defendant instructed Parker to deliver an empty methadone bottle and two packs of heroin to Wheeler at a bus stop, and defendant would provide a bag of heroin to Parker as payment in exchange for agreeing to the delivery. Parker testified after Wheeler provided him with $140, he provided her with two bags of heroin. After the drug transaction between Parker and Wheeler, defendant arrived. Parker testified "not even 30 seconds" later, police stopped Parker and defendant as they were walking away from the bus stop. Parker still had the recorded currency from the drug transaction in his pocket at the time of his arrest.

¶ 12 Parker admitted signing an affidavit while in the McLean County jail, taking sole responsibility for the drug transaction and exonerating defendant. However, he said the body of the affidavit was not his handwriting, he did not know what it contained, and he signed it because he "felt pressured and *** was still coming off withdrawals from the drugs." He said defendant and defendant's brother (who was also incarcerated in the McLean County jail) pressured him daily to sign the affidavit.

¶ 13 The State called several police officers involved in the planning and execution of the drug transaction between Wheeler and defendant. The testimony revealed officers observed Wheeler at the bus stop. An individual (later identified as Parker) approached and sat next to Wheeler on a bench. Police witnessed a hand-to-hand transaction as Wheeler put money on the bench, and Parker handed her something while picking up the money. Wheeler and Parker were engaged in conversation when another individual (later identified as defendant) approached the bus stop. Parker and defendant began walking away when other officers arrived and arrested them. Defendant had over $1700 in his pockets along with a cellular phone, which officers confirmed was the phone used to set up the drug transaction with Wheeler. Police also searched Parker, who had $261 on his person, $140 of which was the "buy money" Wheeler used to purchase the heroin.

¶ 14 Todd Walcott, the lead detective on the case, testified concerning the benefits of using confidential sources in drug cases and explained the details involved in controlled-buy transactions. Wheeler contacted Walcott wanting to work as a confidential source and purchase heroin from defendant. On the day of the controlled-buy transaction, Walcott drove Wheeler to various locations to meet defendant and searched Wheeler before and after the drug transaction. After the transaction, Walcott met Wheeler at a nearby restaurant where she informed him the drug transaction was completed and provided him with a bag of heroin. A recorded interview of defendant was played before the jury. In the recording, defendant stated he directed Parker to give Wheeler her empty methadone bottle, but defendant did not direct Parker to deliver drugs to Wheeler. Defendant confirmed his cell phone number was the same one Wheeler used to set up the drug transaction but stated she contacted defendant regarding the return of her methadone bottle. A stipulation was read attesting to the proper foundational requirements for the drugs and testing by an Illinois State Police forensic scientist. Testing confirmed the substance was heroin weighing 0.1 gram.

¶ 15 Defendant elected not to testify or present any other evidence on his behalf. The jury found defendant guilty of unlawful delivery of a controlled substance.

¶ 16 B. Krankel Hearing and Motion for Judgment Notwithstanding the Verdict

¶ 17 After trial, defendant filed a letter and a pro se "Motion for a New Trial or Judgment N.O.V." In the letter, defendant alleged counsel was ineffective for failing to request a continuance to secure the testimony of Taylor and McClelland.

¶ 18 Shortly after defendant filed his pro se motion counsel filed a "Motion for Judgment Notwithstanding the Verdict or for a New Trial." In the motion, counsel argued the State failed to prove the elements of the offense beyond a reasonable doubt and the finding of the jury was against the manifest weight of the evidence.

¶ 19 In January 2018, the trial court held a hearing on the motions. First, the court addressed defendant's letter claiming ineffective assistance. Defendant asserted if defense counsel had called McClelland, he would have testified Wheeler and Parker knew one another and McClelland was present when Wheeler called defendant. Defendant agreed Taylor was unavailable to testify because of his outstanding...