People v. Kirchner
| Decision Date | 09 June 2020 |
| Docket Number | NO. 4-18-0475,4-18-0475 |
| Citation | 2020 IL App (4th) 180475 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM BRADLEY KIRCHNER, 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 Douglas County
Honorable Roger B. Webber, Judge Presiding.
¶ 1 Held: The appellate court affirmed, holding the defendant failed to make a substantial showing of a constitutional violation, the trial court properly denied defendant's request for forensic testing, and postconviction counsel provided reasonable assistance.
¶ 2 In February 2018, the trial court granted the State's motion to dismiss defendant William Bradley Kirchner's successive postconviction petition during the second stage of the proceedings under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-7) (West 2014)) and denied defendant's request for forensic testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/116-3) (West 2014)).
¶ 3 On appeal, defendant's argument is threefold: (1) the trial court erred in dismissing his postconviction petition because he made a substantial showing he received ineffective assistance of counsel, (2) the trial court erred in denying his request for forensic testing, and (3) postconviction counsel provided defendant unreasonable assistance. We disagree and affirm the trial court's judgment.
¶ 5 In June 1998, a jury convicted defendant of the August 1997 murders of Charles Brewer, Doris Jean Brewer, and Bonnie Brewer. Our supreme court affirmed defendant's convictions in December 2000. People v. Kirchner, 194 Ill. 2d 502, 743 N.E.2d 94 (2000). Meanwhile, defendant filed a pro se postconviction petition, arguing he received ineffective assistance of trial counsel. The trial court dismissed the petition in September 2010 and this court affirmed the decision in June 2012. People v. Kirchner 2012 IL App (4th) 100823-U. Defendant filed the instant petition—a successive pro se postconviction petition—in September 2015, alleging newly discovered evidence supported his claim of actual innocence. Defendant's petition also included a request for forensic testing pursuant to section 116-3 of the Criminal Procedure Code (725 ILCS 5/116-3 (West 2014)). Defendant attached to this petition several supporting documents, including police reports he received via Freedom of Information Act (FOIA) requests and a witness list from his appellate counsel's file.
¶ 6 After the trial court took no action on defendant's successive postconviction petition, he moved to advance the petition to the second-stage proceedings outlined in the Postconviction Act (725 ILCS 5/122-2.1 (West 2014)). In September 2016, the court advanced defendant's petition "for further consideration pursuant to 725 ILCS 5/122-4 through 122-6" and appointed defendant counsel. New counsel filed an amended postconviction petition and request for forensic testing in May 2017. Though not included in the common law record, postconviction counsel and the trial court confirmed on the record that counsel filed a Rule 651(c) certificate with the amended petition. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). The amended petition allegeddefendant received ineffective assistance from trial and appellate counsel. For trial counsel, the amended petition alleged counsel failed to present a defense that Darrell Brewer (who was named as a potential suspect in multiple police reports attached to the petition) committed the murders, not defendant. As for trial or appellate counsel (it is unclear), the amended petition alleged counsel failed to investigate (and the State failed to disclose) whether a key State witness received immunity in exchange for his trial testimony. Defendant's amended petition incorporated some of the attachments to his pro se petition, namely the police reports obtained via FOIA requests and the witness chart from appellate counsel's file.
¶ 7 Despite defendant's failure to obtain leave from the trial court to file a successive petition and make the necessary showings, the court considered the petition's merits and the State's subsequent motion to dismiss it. The court concluded defendant's trial counsel did not render ineffective assistance when counsel opted against presenting a defense that Darrell Brewer committed the murders. The court noted the "[defendant] has provided no affidavits or any other evidence suggesting that there is any actual evidence of [Brewer's] guilt." Even with the police reports mentioning Brewer and detailing the police investigation of Brewer, the court determined "there [wa]s absolutely nothing to suggest that counsel was ineffective for failing to follow-up on this theory or that [defendant] was prejudiced thereby." The trial court next concluded defendant's appellate counsel did not render ineffective assistance for failing to investigate whether a State witness received immunity. The court reasoned that since there was "no evidence that an immunity agreement in fact had been made," appellate counsel was not ineffective for failing "to investigate and prove a non-existent agreement."
¶ 8 The trial court then considered defendant's request for forensic testing and found it "[could] not determine *** the requested testing ha[d] the scientific potential to produce new,non-cumulative evidence materially relevant to defendant's assertion of actual innocence." The court, therefore, denied defendant's request since it did not meet the statutory requirements for testing outlined in the Criminal Procedure Code. See 725 ILCS 5/116-3 (West 2014).
¶ 9 This appealed followed.
¶ 11 Defendant challenges the trial court's order on three grounds. First, he argues the trial court erred in dismissing his amended postconviction petition because he made the requisite showing to survive a motion dismiss, i.e., he made a substantial showing of two constitutional violations—ineffective assistance of counsel and a Brady violation. Second, he argues the trial court erred in denying his request for forensic testing since the testing would yield new, non-cumulative evidence supporting his actual innocence. Third, he argues postconviction counsel provided unreasonable assistance. Taking each argument in turn, we disagree and affirm the trial court's order.
¶ 13 To survive a motion to dismiss from the State at the second stage of postconviction proceedings and advance to a third-stage evidentiary hearing, the defendant's petition "must make 'a substantial showing of a violation of constitutional rights.' " People v. Wingate, 2015 IL App (5th) 130189, ¶ 24, 31 N.E.3d 75 (quoting People v. Coleman, 183 Ill. 2d 366, 381, 701 N.E.2d 1063, 1072 (1998)). "When a trial court dismisses a petition for postconviction relief at the second stage of proceedings," as it did here, this court "review[s] that dismissal de novo, taking as true all well-pleaded facts that are not positively rebutted by the trial record." Wingate, 2015 IL App (5th) 130189, ¶ 24 (citing People v. Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999, 1008 (2006)). Accordingly, we "may affirm a trial court's dismissal at thesecond stage on any grounds substantiated by the record, regardless of the trial court's reasoning." People v. Snow, 2012 IL App (4th) 110415, ¶ 17, 964 N.E.2d 1139.
¶ 15 Illinois law allows for defendants to file a postconviction petition " 'assert[ing] a freestanding claim of actual innocence based on newly discovered evidence.' " Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting People v. Ortiz, 235 Ill. 2d 319, 333, 919 N.E.2d 941, 949-50 (2009)). The law defines "newly discovered evidence" as evidence the defendant discovered after trial " 'and that the defendant could not have discovered sooner through due diligence.' " Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting Ortiz, 235 Ill. 2d at 334). "[A]ctual innocence requires that a defendant be free of liability not only for the crime of conviction, but also of any related offenses." Wingate, 2015 IL App (5th) 130189, ¶ 32. Though we will still consider his appeal, we must note defendant failed by any measure to show newly discovered evidence established his actual innocence.
¶ 16 Defendant's amended postconviction petition cites zero newly discovered evidence supporting his actual innocence. His pro se petition cited a witness list found in his appellate counsel's file and his mother's own investigation suggesting that a key State witness, Dyno Warner, received immunity for his testimony. Even if this information were true, we fail to see how it would prove defendant actually innocent of murdering the Brewers. Such information would merely impeach Dyno Warner and would not merit defendant relief. See Wingate, 2015 IL App (5th) 130189, ¶ 24 Moreover, defendant did not establish he could not have discovered this information sooner. After all, he relies upon information contained within his appellatecounsel's file. With due diligence he could have, and should have, found that witness list sooner than 2015.
¶ 17 Defendant's pro se petition also cited Illinois State Police documents as newly discovered evidence, but the petition alleged those documents established a Brady violation because they contained potentially exculpatory evidence. The petition did not allege the police records established actual...
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