People v. Hilliard
| Citation | 2021 IL App (1st) 200112,195 N.E.3d 353,457 Ill.Dec. 439 |
| Decision Date | 07 December 2021 |
| Docket Number | 1-20-0112 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andre HILLIARD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
2021 IL App (1st) 200112
195 N.E.3d 353
457 Ill.Dec. 439
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Andre HILLIARD, Defendant-Appellant.
No. 1-20-0112
Appellate Court of Illinois, First District, Second Division.
Filed December 7, 2021
Modified Upon Denial of Rehearing January 11, 2022
James E. Chadd, Douglas R. Hoff, and Caroline E. Bourland, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak, Tasha Kelly, and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.
JUSTICE COBBS delivered the judgment of the court, with opinion.
¶ 1 Following a jury trial, defendant-appellant Andre Hilliard was found guilty of attempted murder and aggravated battery with a firearm and sentenced to 15 years in prison plus a mandatory 25-year firearm enhancement, for a total of 40 years’ imprisonment. He now appeals from the judgment of the trial court summarily dismissing his pro se petition pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). On appeal, he argues that the trial court erred because his petition stated an arguable basis in fact or law where he was 18 years old at the time of the offense and the trial court was unable to consider his youth and attendant characteristics before imposing the mandatory firearm enhancement. For the following reasons, we affirm.
¶ 2 I. BACKGROUND
¶ 3 On September 19, 2013, defendant was arrested and charged with attempted murder and aggravated battery with a firearm in connection with the shooting of Devaul Killingsworth in the early hours of August 6, 2013. As relevant to this appeal, the facts adduced at trial are as follows.
¶ 4 At the start of trial, the trial judge stated on the record that defendant was removed from the courtroom because he had threatened people, became belligerent, and started screaming. Instead of shackling and handcuffing defendant, the judge opted to place defendant in a lockup with a microphone placed inside to ensure that defendant could hear the trial proceedings. Defendant was informed that, at any point, he could decide that he wanted to be present in the courtroom.
¶ 5 Killingsworth testified that just before midnight on August 5, 2013, he was visiting Tracy Chatman, the mother of his grandchildren, at the Altgeld Gardens housing complex, located on 132nd Street in Chicago. At around 12:45 a.m., he was standing outside of Chatman's door talking to the neighbors. As he was about to reenter Chatman's home, he heard a noise, turned around, and saw defendant, whom he believed to be Chatman's boyfriend at the time, pointing a gun at him. Defendant, from one or two feet away, fired two to five gunshots at him. Killingsworth was struck in the arm by two bullets as he raised his arm to protect himself. He then ran a few feet into a grassy area and fell down before walking back to Chatman's door. A neighbor came out with a chair for him and told him he had been shot. Eventually, an ambulance arrived and took Killingsworth to the hospital. He had surgery on his arm to remove the bullet and fragments, but not all could be removed. He testified that he is still unable to use his arm to the same extent as before the shooting. While he was at the hospital, he informed detectives that defendant shot him. From a photograph array, Killingsworth identified defendant. After defendant was arrested, Killingsworth identified him as the shooter from a physical lineup.
¶ 6 Chicago police detective Brian Cunningham testified that on August 6, 2013, he and his partner, Chicago police detective Bryant Casey, were assigned to investigate a shooting at Altgeld Gardens. Cunningham first went to the hospital to assess the status of the victim, Killingsworth. Killingsworth told Cunningham that the shooter was someone named "Andre." Killingsworth identified defendant as the shooter from a photo array. Defendant was arrested on September 19, 2013.
¶ 7 Dr. Tobin Efferen, an attending physician at Mount Sinai Medical Center, testified that he was working on August 6, 2013, when Killingsworth was transferred to Mount Sinai from Roseland Hospital. He testified that Dr. Mason Milburn was also involved in Killingsworth's care at the hospital as the orthopedic surgeon. A review of Killingsworth's X-rays showed that he had broken bones in his left forearm, which required surgery. Dr. Efferen did not see Killingsworth again after surgery, but based on the medical records, he stated that the surgery was successful.
¶ 8 Defendant's motion for a directed verdict as to attempted first degree murder was denied. At this time, defendant was once again asked if he wanted to participate in the trial, which he refused. The defense rested without presenting evidence.
¶ 9 The jury found defendant guilty of attempted first degree murder and aggravated battery with a firearm. The jury also found that, during the commission of the attempted murder, defendant personally discharged a firearm that caused great bodily harm to another person.
¶ 10 After the jury returned the verdict, the trial court requested that Forensic Clinical Services examine defendant's fitness in light of defendant's behavior during the trial. Dr. Nishad Nadkarni interviewed defendant three separate times but ultimately could not render an opinion because defendant refused to cooperate. However, Dr. Nadkarni did opine that he believed defendant was malingering some psychotic symptoms and that he did not have any cognitive impairments or mental illnesses that prevented him from understanding the charges and participating in the trial as necessary. In coming to this conclusion, Dr. Nadkarni had reviewed defendant's records including reports from 2009 at Hargrove Hospital, where defendant was hospitalized briefly for severe behavioral disorder, conduct disorder, aggression, and a history of drug abuse and gang involvement, though these reports did not contain a diagnosis of any major mental illness or cognitive impairment. After the fitness hearing, the trial court found defendant to be fit for posttrial motions and sentencing.
¶ 11 A presentencing investigation report (PSI) was prepared prior to the sentencing hearing, though the probation officer reported that he had difficulty interviewing defendant because defendant refused to participate. The report disclosed that defendant's parents were never married and he did not have a relationship with his father. Defendant only attended school until the fifth grade, and he stated that he suffered from a mental illness.
¶ 12 At the sentencing hearing, neither party introduced any evidence in aggravation or mitigation. The State requested a sentence above the minimum based on evidence that Killingsworth was permanently disabled. Defense counsel noted that defendant was 19 years old at the time of sentencing and had no criminal history. In sentencing defendant, the court merged the offense of aggravated battery with a firearm into the attempted murder count. The court then sentenced defendant to 15 years for attempted murder and the minimum sentence of 25 years for personally discharging a firearm that proximately caused bodily harm to a person, after considering "the statutory provisions in aggravation, the statutory provisions in mitigation *** and also [the] evidence presented at the aggravation and *** mitigation phase of the sentencing and pre-sentencing investigation." The court did not make any specific statements regarding the statutory factors or any of the evidence presented at the hearing or in the PSI.
¶ 13 On direct appeal, defendant argued, inter alia , that the mandatory firearm enhancement was unconstitutional as applied to him in light of his young age at the time of the offense. People v. Hilliard , 2017 IL App (1st) 142951-U, 2017 WL 2834512. This court affirmed defendant's conviction and sentence and, in relation to his constitutional claim, took no position and stated that it was "best suited" for the trial court where the factual record could be developed as necessary. Id. ¶ 42. This court denied the petition for rehearing on August 4, 2017, and our supreme court denied defendant's petition for leave to appeal on November 28, 2018.
¶ 14 On September 19, 2019, defendant filed his initial pro se postconviction petition, alleging that the mandatory 25-year firearm enhancement was unconstitutional as applied to him under the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ). He further asserts that the trial court should have explicitly applied the factors espoused in Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because his cognitive impairments rendered him more similar to a 16- or 17-year-old at the time of the offense and the trial court was unable to consider his youth, rehabilitative potential, lack of criminal history, and lack of gang involvement prior to imposing the firearm enhancement.
¶ 15 On December 5, 2019, the trial court issued a written order summarily dismissing the petition. This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant asserts that he has stated the gist of an arguable constitutional claim that the mandatory 25-year firearm enhancement as applied to him violates the proportionate penalties clause of the Illinois Constitution and thus this court should reverse and remand for second stage proceedings under the Act. Specifically, he alleges that he was only 18 years old at the time of the offense and the court was unable to consider his youth and other related factors, including his childhood, lack of education, and lack of gang membership, when adding the enhancement to his sentence.
¶ 18 The Act provides a method for a defendant to collaterally attack a conviction by asserting that it resulted from a "substantial denial" of his constitutional rights. 725 ILCS...
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