People v. Davis

• Decision Date: 17 January 2008
• Docket Number: No. 2-05-1115.,2-05-1115.
• Citation: 889 N.E.2d 622,382 Ill.App.3d 701
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie L. DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

889 N.E.2d 622

382 Ill.App.3d 701

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie L. DAVIS, Defendant-Appellant.

No. 2-05-1115.

Appellate Court of Illinois, Second District.

January 17, 2008.

Robert J. Agostinelli (Court-appointed), Jay Wiegman (Court-appointed), Office of the State Appellate Defender, Ottawa, for Ronnie L. Davis.

Michael J. Waller, Lake County State's Attorney, Waukegan, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, Catherine A. Voigt, Glen Ellyn, for the People.

Justice CALLUM delivered the opinion of the court:

Defendant, Ronnie L. Davis, appeals the trial court's second-stage dismissal of his petition, filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)), in which he argued, inter alia, that his trial counsel was ineffective for failing to bring forward what he claims was potentially exculpatory testimony from a witness to the incident that led to defendant's conviction. For the reasons that follow, we affirm.

I. BACKGROUND

Defendant was convicted of unlawful possession of a controlled substance and armed violence in connection with an incident in 1997, in which police entered a home in pursuit of a fleeing suspect and discovered defendant with drugs and a handgun in his possession. Defendant appealed, and this court affirmed his conviction, but remanded the cause for resentencing. People v. Davis, No. 2-97-1096 (1999) (unpublished order under Supreme Court Rule 23). Defendant's sentence was reduced on remand, and he again appealed. On appeal, this court affirmed his 24-year sentence for armed violence, but vacated the conviction of unlawful possession of a controlled substance. People v. Davis, No. 2-99-1247, 324 Ill.App.3d 1146, 282 Ill.Dec. 140, 805 N.E.2d 759 (2001) (unpublished order under Supreme Court Rule 23). On October 2, 2002, our supreme court denied defendant's subsequent petition for leave to appeal. People v. Davis, 201 Ill.2d 583, 271 Ill.Dec. 932, 786 N.E.2d 190 (2002).

On November 3, 2003, defendant petitioned pro se for postconviction relief under the Act. The trial court appointed counsel to represent defendant, and, on February 18, 2005, counsel filed supplements to the petition. The supplemented petition alleged, among other things, that defendant had been deprived of his right to effective assistance of counsel by his trial counsel's failure to interview, or call to testify, a witness who would have offered testimony that aided his case. Defendant knew of the witness's presence at the scene, but he did not obtain her affidavit until February 2005.

The affidavit stated, in pertinent part:

"I * * * state that myself and [defendant] were at my grandmother's house * * *. Sometime during that time in the afternoon the police arrived at my grandmother[']s house and proceeded inside very quickly and saying [sic] that someone that they were chasing ran into our house. * * * We told them no one had ran [sic] into our house and asked them to leave. They then turned they're [sic] attention to [defendant] and asked him to take his hands out of his pocket [sic][.] We asked them to leave once more and they continued to tell [defendant] to take his hands out of his pocket [sic][.] [H]e wouldn't and they immediately restrained him, and hit him then arresting [sic] him and taking [sic] him away. Before they took him there was a * * * silver gun on the floor of the kitchen[.] I picked it up, the police grabbed me and my arm and took the gun away from me. I then told them I was picking it up for everyone[']s safety and I never saw that gun again. I can verify that [defendant] had never left the house since we arrived two or three hours earlier. No one ever contacted me for a statement and I was never called to testify during [defendant's] trial. I never saw [defendant] with the gun. I don't know where the gun came from and I had never seen it before."

Defendant's original petition asserted that any delay in filing the petition was not due to his culpable negligence, because defendant had only recently learned that no charges were filed against the suspect whom police pursued into the house where they encountered defendant.

The State moved to dismiss defendant's postconviction petition on the grounds that the petition was untimely, that it made no substantial showing of a constitutional violation, that the allegations in the petition had been waived for failure to raise them in the direct appeal of defendant's conviction, and that the petition did not properly cite the Act. Defendant's reply to the State's motion to dismiss argued that the delay in his filing his postconviction petition was not due to his culpable negligence, because the prison library had been closed during the relevant time period. Defendant filed an affidavit saying that he had no access to the library for the first year of his incarceration; however, the State responded with an affidavit from a prison librarian refuting this claim.

On October 27, 2005, the trial court held a hearing on the State's motion to dismiss. At the hearing, defendant testified on his own behalf. He explained that he did not file his petition within the time limit under the Act because he "thought that [he] had three years to file," and he noted that he did not have legal counsel at the time. At the conclusion of defendant's testimony, the court heard arguments from both sides. The State argued that the petition was untimely, that it failed to make a substantial showing of a constitutional violation, and that defendant's arguments were barred by waiver. Defense counsel responded to the timeliness argument by conceding that defendant's petition was not timely, but asked the trial court to allow the petition to proceed "based on the nature of the petition and in the interest of justice."

The trial court granted the State's motion to dismiss defendant's postconviction petition. It stated in open court that, "after considering [the] State's argument, the Court would find [the State's motion to dismiss] to be valid in two respects, and, that is, certainly that the petition is time barred." The trial court continued:

"Even with the amendment that was made it does not get beyond the Defendant's culpable negligence. The fact that he's alleging here today that he thought that it was three years after that he had is not an excuse to get beyond that culpable negligence so it was not timely filed."

The trial court also agreed with the State that defendant's argument concerning the new witness had been waived for failure to assert it on direct appeal.

In its written order, the trial court stated that the petition was "untimely filed due to [defendant's] own culpable negligence and barred by doctrine [sic] of waiver." Defendant timely appealed.

II. APPELLATE DEFENDER'S ADVOCACY

Initially, we address the quality of representation provided defendant in this appeal because, in this and another recent case, People v. Teran, 376 Ill.App.3d 1, 315 Ill.Dec. 422, 876 N.E.2d 734 (2007), this court has been presented with highly questionable advocacy from appointed appellate counsel from the Third District State Appellate Defender's Office. In Teran, appellate counsel twice moved to reconsider our denial of his motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and, in those motions, he asserted that he was not "tempted" to make an argument that this court identified for him as nonfrivolous, in part because his client was "delusional." Teran, 376 Ill. App.3d at 5, 315 Ill.Dec. 422, 876 N.E.2d 734. We admonished counsel in Teran for his "remarkable" position. Teran, 376 Ill. App.3d at 5, 315 Ill.Dec. 422, 876 N.E.2d 734. This appeal raises a very similar problem.

Defendant's appointed attorney for this appeal, Jay Wiegman of the Third District Office of the State Appellate Defender, filed a Finley motion because he could not identify any nonfrivolous issues to raise on appeal. In his motion, Wiegman asserted that defendant's postconviction petition was untimely and that there was no viable excuse for the delay. The motion discussed only the timeliness issue.

We denied Wiegman's motion to withdraw and directed him to file a brief addressing postconviction counsel's assistance. Wiegman subsequently filed a motion to reconsider our denial of his motion for leave to withdraw. In that motion and an accompanying memorandum, Wiegman argued that postconviction counsel did not provide unreasonable assistance under the Act or Supreme Court Rule 651(c) (134 Ill.2d R. 651(c)). Specifically, Wiegman noted that postconviction counsel based his timeliness argument on defendant's mistake of law only after the State had refuted defendant's contention that he had no library access. Wiegman also rebutted the contention that postconviction counsel should have argued that the witness affidavit could have been considered newly discovered evidence. He noted that such argument was unnecessary and, in any event, "the trial court disregarded any timeliness concerns involving this issue, finding instead that [defendant's claim] was waived." Wiegman also asserted that postconviction counsel did not violate Rule 651(c) or the Act by failing to argue that counsel on direct appeal was ineffective for not raising an argument regarding the new witness. Instead, Wiegman argued that counsel on direct appeal could not have argued the new-witness issue, because the record on appeal did not reveal that issue, and, therefore, counsel on direct appeal could not be considered ineffective.

We denied Wiegman's motion to reconsider. We noted that, if "counsel on direct appeal could not have raised the supplemental claim, the trial court erred in dismissing that claim on the basis of waiver." We thus ordered Wiegman "to file a brief addressing whether, at least as to defendant's [argument regarding the new witness,] the trial...