People v. Jenkins

Decision Date21 December 2020
Docket NumberAppeal No. 3-18-0551
Citation2020 IL App (3d) 180551,187 N.E.3d 111,453 Ill.Dec. 137
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William J. JENKINS, Defendant-appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Thomas A. Karalis, and Editha Rosario-Moore, of State Appellate Defender's Office, of Ottawa, for appellant.

James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

¶ 1 Defendant, William J. Jenkins, an indigent defendant, appeals the second-stage dismissal of his amended postconviction petition on the grounds that the circuit court deprived him of his equal protection right to free access to certain materials necessary to prepare a defense. Defendant argues that he did not receive the effective assistance of counsel in the circuit court and on appeal because the issue was neither preserved by posttrial counsel nor recognized and raised by appellate counsel.

¶ 2 The State argues that the dismissal of defendant's postconviction petition was proper because defendant was not entitled to free access to his codefendant's trial transcripts and also contends that trial and appellate counsel did not provide deficient representation by declining to preserve or raise that issue. We reverse the circuit court's dismissal of defendant's postconviction petition, vacate defendant's convictions, and remand for further proceedings.


¶ 4 Defendant and codefendant, Ira D. Cunningham, were jointly charged in the same information with two felonies and one misdemeanor offense: residential burglary, theft, and obstructing identification, respectively. Later, the State increased defendant's charges to four felonies based on a subsequent indictment as follows:

Count I—Ira D. Cunningham and William J. Jenkins: residential burglary
Count II—William J. Jenkins: burglary
Count III—Ira D. Cunningham and William J. Jenkins: theft
Count IV—Ira D. Cunningham: obstructing justice
Count V—William J. Jenkins: obstructing justice

¶ 5 The court appointed the office of the public defender to represent defendant. However, defendant elected to proceed as a self-represented litigant with respect to the indicted charges he was facing for residential burglary ( 720 ILCS 5/19-3 (West 2010) ) as alleged in count I, burglary (id. § 19-1(a)) as alleged in count II, and theft (id. § 16-1(a)(4)(A), (b)(4)) as alleged in count III.

¶ 6 At some point, defendant's and Cunningham's cases were severed, and Cunningham's trial took place first. Defendant's jury trial was scheduled to commence on Monday, August 20, 2012. On Friday, August 17, 2012, the parties convened for a final pretrial conference. During that court appearance, defendant inquired of the court: "Your Honor, what is the verdict on Mr. Cunningham's case?" The court replied that Cunningham, a codefendant in Will County case No. 11-CF-2122, had been found guilty on all counts.1

¶ 7 Defendant requested transcripts of his codefendant's trial, indicating that such transcripts would allow him to identify any discrepancies in the testimony of witnesses testifying at both trials. The following exchange ensued:

"THE COURT: *** I can tell you right now that the court reporters don't have magic wands; that they cannot produce transcripts out of thin air.
If I put it over Friday until Monday morning, can you afford these transcripts ***?
THE DEFENDANT: No. I am indigent.
THE COURT: You do not have a right to free transcripts for trial ***."

Defendant stated that the transcripts were necessary. The colloquy continued:

"THE COURT: As it exists right now you do not have a right to them for free. You don't. You didn't want the Public Defender's Office. Public Defender might have been able to obtain those for you. You didn't want them to represent [you] ***. This is what happened.
I can get the court reporters to put together a statement for you, but they can't have it done overnight.
*** [Y]ou don't get them for free.
THE DEFENDANT: I would like a statement if that's—
THE COURT: *** [H]ow many witnesses do we have?
[THE STATE]: Seven to nine witnesses and jury selection. We're doing opening statements, closing arguments, return a verdict.
THE COURT: I can see it. I looked at Mr. Cunningham's docket. My court reporters do work very hard. If we can get some ballpark, can I tell him in the thousands. Would it be fair?
THE COURT: You don't get them for free. You don't have a right for them free transcripts [sic ]. You don't have a right to them for free.
Motion for transcripts is denied."

¶ 8 Defendant's jury trial began on August 20, 2012, as scheduled. Upon completion of the four-day trial, the jury found defendant guilty on all counts.

¶ 9 The public defender represented defendant for purposes of his posttrial proceedings. The public defender filed a motion for a new trial, which the circuit court denied. The court sentenced defendant to concurrent terms of 20 years’ imprisonment for residential burglary and burglary, as well as concurrent terms of 5 years’ imprisonment for theft and obstructing justice. Defendant filed a pro se motion to reconsider sentence, which the court denied.

¶ 10 On direct appeal, defendant argued that his sentences for theft and obstructing justice were improper insofar as the court believed he was extended-term eligible on those charges. This court agreed and remanded the matter for resentencing on those convictions. People v. Jenkins , No. 3-13-0547 (2015) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). The circuit court subsequently resentenced defendant to terms of five years’ and three years’ imprisonment for theft and obstructing justice, respectively.

¶ 11 On November 30, 2015, defendant filed a pro se petition for postconviction relief. In his petition, defendant claimed, inter alia , that he "was denied the right to free Transcript[s] of his Co-Defendant Trial's [sic ]." The court appointed counsel to represent defendant in postconviction proceedings, and counsel filed an amended petition.

¶ 12 The amended postconviction petition alleged that the denial of access to free transcripts violated defendant's rights to due process and equal protection. The amended petition also alleged that posttrial counsel rendered ineffective assistance for failing to raise the transcript issue in his motion for new trial and that appellate counsel was similarly ineffective for failing to raise the transcript issue on direct appeal.

¶ 13 The State filed a motion to dismiss defendant's amended petition. The State's motion asserted, inter alia , that the transcripts from Cunningham's trial were unavailable at the time of defendant's request and that defendant was not entitled to free copies of those transcripts.

¶ 14 The court granted the State's motion to dismiss defendant's amended petition. This appeal follows.


¶ 16 On appeal, defendant argues that the circuit court erroneously dismissed his amended postconviction petition. The amended postconviction petition alleged that the denial of access to free transcripts of his codefendant's trial violated defendant's constitutional rights to due process and equal protection. The amended petition also alleged that defendant received ineffective assistance of both trial and appellate counsel because neither attorney raised the circuit court's refusal to provide a free transcript of his codefendant's trial as grounds to set aside his convictions. Since there are no disputed facts, defendant requests that this court provide direct relief by vacating his convictions and remanding to the circuit court for a new trial rather than a third-stage evidentiary hearing.

¶ 17 The State contends that the amended postconviction petition lacked merit and was properly dismissed by the trial court. In support of this argument, the State relies on the decision from the United States Supreme Court in Britt v. North Carolina , 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). Without the existence of judicial error, the State asserts that neither posttrial counsel nor appellate counsel could be criticized as ineffective for failing to challenge a correct ruling by the trial court. Next, a brief discussion of the conduct that constitutes ineffective assistance of counsel is in order.

¶ 18 The sixth amendment guarantees a defendant's right to effective assistance of counsel in all critical stages of criminal proceedings. U.S. Const., amend. VI ; People v. Hughes , 2012 IL 112817, ¶ 44, 368 Ill.Dec. 26, 983 N.E.2d 439. This includes a right to the effective assistance of counsel on direct appeal ( People v. Easley , 192 Ill. 2d 307, 328, 249 Ill.Dec. 537, 736 N.E.2d 975 (2000) ) and in posttrial proceedings ( People v. Miller , 2020 IL App (1st) 163304, ¶ 61, 448 Ill.Dec. 142, 175 N.E.3d 1052 ). However, appellate counsel is not obligated to raise "every conceivable issue on appeal." People v. Williams , 209 Ill. 2d 227, 243, 282 Ill.Dec. 824, 807 N.E.2d 448 (2004). A claim of ineffective assistance of appellate counsel will succeed only where a defendant shows that counsel was objectively unreasonable in failing to raise a claim on appeal and that, absent that failure, the defendant's conviction would have been reversed on direct appeal. Id. Thus, such a claim turns on whether the claim at issue was meritorious. Easley , 192 Ill. 2d at 329, 249 Ill.Dec. 537, 736 N.E.2d 975 ("[U]nless the underlying issues are meritorious, defendant has suffered no prejudice from counsel's failure to raise them on appeal.").

¶ 19 Accordingly, this court must first decide the underlying issue, namely, whether this indigent defendant's request for a free transcript of his codefendant's trial should have been granted by the trial court pursuant to the equal protection clause of...

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