People v. Harper
| Decision Date | 16 January 2015 |
| Docket Number | NO. 4-13-0413,4-13-0413 |
| Citation | 2015 IL App (4th) 130413 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVIEON L. HARPER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
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 Circuit Court of Vermilion County
Honorable Michael D. Clary, Judge Presiding.
¶ 1 Held: Defendant did state the gist of a constitutional claim of ineffective assistance of counsel where he alleged that, during the plea bargaining process, trial counsel improperly informed him he could not be convicted based on an accountability theory because the State did not charge it and he rejected a plea for a sentence much shorter than the one received after trial based on that information.
¶ 2 This court has jurisdiction to vacate the fines imposed by the circuit court and remand the cause for the imposition of the applicable mandatory fines.
¶ 3 In February 2013, defendant, Davieon L. Harper, filed a pro se postconviction petition, alleging ineffective assistance of trial counsel. In April 2013, the Vermilion County circuit court dismissed defendant's petition as frivolous and patently without merit. Defendant appeals, asserting the trial court erred by summarily dismissing his postconviction petition. In its brief, the State asserts we should vacate the fines imposed by the circuit court and remand the cause to the trial court for the imposition of fines. We reverse in part, vacate in part, and remandthe cause with directions.
¶ 5 In connection with the October 24, 2009, death of Timothy Shutes, a grand jury indicted defendant with one count of the following: (1) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), (2) armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2008)), and (3) first degree felony murder (720 ILCS 5/9-1(a)(3) (West 2008)). The charges did not contain any accountability language. In April 2010, the trial court granted defendant's motion to sever the unlawful-possession-of-a-weapon-by-a-felon charge. At defendant's September 2010 trial on the two remaining charges, the jury instructions given by the court for both armed robbery and felony murder contained accountability language. The record shows defendant did object to the jury instructions based on the accountability language. The jury found defendant guilty of both armed robbery and felony murder. In November 2010, the trial court denied defendant's posttrial motion and found the armed-robbery conviction merged with the felony-murder conviction. Thus, the court sentenced defendant to 30 years' imprisonment for felony murder. In December 2010, the court denied defendant's motion to reconsider his sentence.
¶ 6 Defendant appealed and challenged (1) the handling of his statutory speedy-trial rights, (2) the sufficiency of the evidence against him, and (3) the use of photographic evidence at his trial. This court affirmed the Vermilion County circuit court's judgment. People v. Harper, 2012 IL App (4th) 100998-U. In November 2012, the Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Harper, 2012 IL 114865, 981 N.E.2d 1000.
¶ 7 On February 14, 2013, defendant filed his pro se postconviction petition with exhibits, raising numerous claims of error. On April 17, 2013, the trial court dismissed thepetition at the first stage of the proceedings. As to the claim at issue on appeal, the court noted it was defendant's personal decision whether or not to accept the plea offer and defendant did not allege he was forced to do something he did not want to do. Further, it found defendant was still trying to overturn his conviction on the same accountability issues. The court also noted there was no guarantee it would have accepted the parties' plea agreement and prejudice cannot be based on conjecture or speculation as to the outcome.
¶ 8 On May 13, 2013, defendant filed a timely notice of appeal in sufficient compliance with Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). See Ill. S. Ct. R. 651(d) (eff. Feb. 6, 2013) (providing the supreme court rules governing criminal appeals apply to appeals in postconviction proceedings). Accordingly, this court has jurisdiction of defendant's postconviction petition under Illinois Supreme Court Rule 651(a) (eff. Feb. 6, 2013).
¶ 11 In this appeal, defendant challenges the trial court's dismissal of his pro se postconviction petition at the first stage of the proceedings. We review de novo the trial court's dismissal of a postconviction petition without an evidentiary hearing. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).
¶ 12 The Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/art. 122 (West 2012)) provides a defendant with a collateral means to challenge his or her conviction or sentence for violations of federal or state constitutional rights. People v. Jones, 211 Ill. 2d 140, 143, 809 N.E.2d 1233, 1236 (2004). When a case does not involve the death penalty, the adjudication of a defendant's postconviction petition follows a three-stage process. Jones, 211 Ill. 2d at 144, 809 N.E.2d at 1236. At the first stage, the trial court must, independently andwithout considering any argument by the State, decide whether the defendant's petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012). To survive dismissal at this initial stage, the postconviction petition "need only present the gist of a constitutional claim," which is "a low threshold" that requires the petition to contain only a limited amount of detail. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). Legal argument or citation to legal authority is not required. People v. Brown, 236 Ill. 2d 175, 184, 923 N.E.2d 748, 754 (2010). However, section 122-2 of the Postconviction Act (725 ILCS 5/122-2 (West 2012)) requires the petition to "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." In analyzing the petition, courts are to take the allegations of the petition as true, as well as liberally construe them. Brown, 236 Ill. 2d at 184, 923 N.E.2d at 754.
¶ 13 Moreover, our supreme court has explained a court may summarily dismiss a pro se postconviction petition "as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one the record completely contradicts. Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation, such as one that is clearly baseless, fantastic, or delusional. Hodges, 234 Ill. 2d at 16-17, 912 N.E.2d at 1212.
¶ 14 On appeal, defendant asserts he established the gist of a constitutional claim based on ineffective assistance of counsel relating to the plea-bargaining process. That is the only issue in his postconviction petition that he raises on appeal and, thus, that is the only issue we will address.
¶ 15 A defendant's sixth amendment right to counsel extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384 (2012). We review ineffective-assistance-of-counsel claims during the plea-bargaining process under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Lafler, 566 U.S. at ___, 132 S. Ct. at 1384. To obtain reversal under Strickland, a defendant must prove (1) his counsel's performance failed to meet an objective standard of competence and (2) counsel's deficient performance resulted in prejudice to the defendant. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel made errors so serious and counsel's performance was so deficient that counsel was not functioning as "counsel" guaranteed by the sixth amendment (U.S. Const., amend. VI). Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must overcome the strong presumption the challenged action or inaction could have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the defendant must prove a reasonable probability exists that, but for counsel's unprofessional errors, the proceeding's result would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-64. "At the first stage of proceedings under the [Postconviction] Act, a petition alleging ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." People v. Petrenko, 237 Ill. 2d 490, 497, 931 N.E.2d 1198, 1203 (2010).
¶ 16 Here, defendant specifically argues he was denied effective assistance of trial counsel because counsel improperly advised him he could not be convicted of armed robbery and felony murder because he was not charged with accountability in the indictment, which causeddefendant to reject the State's plea offers. However, before addressing the merits of defendant's postconviction claim, this court must first find defendant's petition satisfied the evidentiary requirements of section 122-2 of the Postconviction Act (725 ILCS 5/122-2 (West 2012)). Our supreme court has expressly stated the purpose of a section 122-2 affidavit is to "show[ ] that the verified allegations are capable of objective or independent...
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