People v. Hemingway
| Decision Date | 21 September 2020 |
| Docket Number | NO. 4-18-0600,4-18-0600 |
| Citation | 2020 IL App (4th) 180600 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN E. HEMINGWAY, 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 the Circuit Court of Champaign County
Honorable Heidi N. Ladd, Judge Presiding.
¶ 1 Held: The trial court did not err by denying defendant's motion for leave to file a successive postconviction petition.
¶ 2 In May of 2018, defendant, Kevin E. Hemingway, pro se filed a motion for leave to file a successive postconviction petition, which the trial court denied. Defendant appeals, arguing he demonstrated cause and prejudice as required to file a successive postconviction petition. We affirm.
¶ 4 On August 18, 2009, the State charged defendant with armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2008)). The cause proceeded to a jury trial.
¶ 5 At trial, the State adduced the following facts. Terri Herbst was an employee at a McDonald's restaurant in Champaign where her duties included taking cash deposits from the restaurant to the bank. Before any cash deposits were removed from the building, the currency was divided by denomination and "bundled" "[w]ith a rubber band." At approximately 11 a.m. on August 17, 2009, Herbst exited the McDonald's restaurant with that day's cash deposit, estimated to be "[b]etween two thousand and three thousand" dollars. As Herbst neared her car, a man approached her and demanded she "[h]and [him] [the] money." The man pointed a black, semi-automatic handgun at Herbst, who refused to give up the money. Eventually, Herbst's assailant struck her on the head with the handgun, pushed her down, grabbed the deposit bag, and fled.
¶ 6 Soon after the assault, a man wearing clothes matching the description given by Herbst was spotted near the McDonald's restaurant entering "a gold car or a gold-colored car." The police were provided the car's license plate number and drove to the address of the car's owner a short time later. A few minutes after the police arrived at the address, a gold-colored car also arrived. Defendant and two others exited the vehicle. Police searched defendant and found in his possession "four different bundles of currency that were bundled with rubber[ ]bands, in addition to a small amount of change and some other miscellaneous items." Two bundles of currency in defendant's possession contained one-dollar bills, another bundle contained twenty-dollar bills, and the fourth bundle contained a mixture of five and ten-dollar bills. The value of the currency police found in defendant's possession was approximately $1900. The police searched the gold-colored car and discovered a black, semi-automatic handgun and a receipt from Sprint that had been printed at 11:17 a.m. that morning which documented that defendant had paid his $297 cellphone bill in cash.
¶ 7 Defendant was taken to the Champaign Police Department and questioned.
Although defendant initially stated he was not involved in the robbery, he later gave a recorded statement in which he confessed to the crime.
¶ 8 During the State's case-in-chief, only two witnesses who observed Herbst being robbed were able to identify defendant as her assailant. The first witness, Jason Townsend, testified he observed a man "run[ ] up, and he pulled up a bandana, and he had a gun in his hand *** [and he] grabb[ed] the [money] bag and point[ed] [the gun] at [Herbst]." Townsend clarified the assailant's face was not covered the entire time Townsend observed him but that "he pulled up the bandana" as he approached Herbst. Townsend testified he "g[o]t a chance to look at [the] person's face as he was running up towards [Herbst]" and provided an in-court identification of defendant as the person who assaulted Herbst. Sarah Adamson also identified defendant as Herbst's assailant. Adamson testified she was in the drive-thru at McDonald's when she observed a "young, black gentleman" enter the McDonald's parking lot with "a black bandana across his face." Adamson watched the man as he "pull[ed] a gun out of his pocket[,] *** approach[ed] [a] woman in the parking lot[,]" and "started struggling" with the woman. Adamson testified defendant was the man she observed, explaining that although the assailant had a bandana over his face when Adamson saw him, defendant "fit[ ] what [she] remember[ed]."
¶ 9 The jury convicted defendant and the trial court subsequently sentenced him to 38 years in prison. Defendant later filed a motion to reconsider sentence which the trial court granted, reducing defendant's sentence to 35 years.
¶ 10 Defendant appealed his sentence, arguing the trial court erred in imposing certain fines. People v. Hemingway, 2011 IL App (4th) 100701-U, ¶ 4. We remanded for the trial court to make specified adjustments to the amount of defendant's fines but otherwise affirmed the court's judgment. Id. ¶ 22.
¶ 11 On August 9, 2012, defendant pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). In his postconviction petition, defendant alleged: (1) the video of defendant's confession, which had been played at trial, was "the fruit of an illegal arrest"; (2) trial counsel "failed to file a pre-trial motion to quash arrest and suppress evidence"; (3) "appellate counsel was ineffective for not raising the argument that trial counsel was ineffective for not filing a pretrial motion to [quash] arrest and suppress any evidence"; and (4) trial counsel erred by "not putting [defendant's] alibi witness on the stand." On October 22, 2012, the trial court dismissed defendant's postconviction petition, finding it "fail[ed] to state the gist of a constitutional claim" and was "frivolous and patently without merit."
¶ 12 Defendant appealed the trial court's dismissal of his postconviction petition. On appeal, defendant argued "(1) his trial counsel rendered ineffective assistance in the jury trial by failing to call an alibi witness, Tiffany Steele, and (2) his appellate counsel rendered ineffective assistance on direct appeal by failing to argue that the sentence was excessive." People v. Hemingway, 2014 IL App (4th) 121039, ¶ 1, 14 N.E.3d 1238. We initially rejected both of defendant's contentions. See id. ¶ 33. However, at the direction of our supreme court, we later vacated our judgment and reconsidered defendant's claims. People v. Hemingway, 2016 IL App (4th) 121039-UB, ¶ 3. We ultimately remanded defendant's case for the trial court to conduct further proceedings on whether trial counsel should have called Tiffany Steele as an alibi witness. Id. ¶ 4. Regarding defendant's second claim, we wrote "[t]here is some question of whether the pro se petition can be reasonably interpreted as raising [an excessive sentence] claim[ ]" and, on remand, "the appointed postconviction counsel [could] raise that claim more explicitly[ ] in an amended petition, if he or she sees fit to do so." Id. ¶ 15.
¶ 13 On remand, defendant's appointed postconviction counsel filed an amended postconviction petition and a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). In the amended petition, defendant alleged trial counsel had been ineffective for failing to call Tiffany Steele as an alibi witness, trial counsel had been ineffective for objecting to a jury request to review certain evidence, and the trial court had erred in denying the jury's request to review certain evidence. The amended petition did not include an allegation that appellate counsel was ineffective for failing to challenge defendant's sentence.
¶ 14 The trial court conducted an evidentiary hearing on defendant's amended postconviction petition. In support of his claims, defendant testified on his own behalf and presented the testimony of Tiffany Steele. The State presented testimony from defendant's trial counsel. During the State's examination of defendant's trial counsel, the following colloquy occurred:
At the end of the hearing, the court denied defendant's postconviction petition.
¶ 15 Defendant appealed the denial of his postconviction petition, arguing postconviction counsel acted unreasonably by failing to include in the amended petition a claim that "(1) trial counsel had rendered ineffective assistance in the jury trial by failing to impeach Townsend and Adamson with their prior statements to the police that they would be unable to recognize the robber, and (2) appellate counsel had rendered ineffective assistance on direct appeal by failing to challenge the 35-year prison sentence as excessive." People v. Hemingway, No. 4-17-0011 (2017) (). We rejected both of defendant's claims, finding postconviction counsel was not obligated to include either allegation in the amended petition because defendant had failed to include them in his original petition. Id.
¶ 16 Subsequently, defendant pro se filed a motion for leave to file a successive postconviction petition in which he asserted two claims relevant to this appeal. Defendant's first claim was that trial counsel was ineffective for "failing to impeach State[']s witnesses Jason Townsend and Sarah Adamson with their prior statements to...
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