People v. Mister

• Decision Date: 10 December 2019
• Docket Number: NO. 4-17-0315,4-17-0315
• Citation: 2019 IL App (4th) 170315 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVINO MISTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (4th) 170315-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVINO MISTER, Defendant-Appellant.

NO. 4-17-0315

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 10, 2019

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

No. 12CF611

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.

Justices DeArmond and Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court's summary dismissal of defendant's postconviction petition, concluding it failed to state the gist of a meritorious constitutional claim.

¶ 2 Defendant, Marvino Mister, appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-7 (West 2016)). On appeal, defendant argues this court should reverse the trial court's judgment because his petition states an arguable claim his trial counsel rendered ineffective assistance by failing to investigate and present testimony of two alibi witnesses. We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 On direct appeal, this court provided all the relevant facts in this case. People v. Mister, 2016 IL App (4th) 130180-B, ¶¶ 4-40, 58 N.E.3d 1242. We discuss only those facts necessary for the resolution of the issues on appeal.

¶ 5 A. The Charges and Jury Trial

¶ 6 On April 18, 2012, the State charged defendant by information with armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), a Class X felony. The information alleged on April 12, 2012, defendant took money from Sean Harrigan, a student at the University of Illinois in Champaign-Urbana, by threatening the imminent use of force while armed with a gun.

¶ 7 At defendant's jury trial in December 2012, Sean Harrigan testified that on April 11, 2012, he and two friends drove in Harrigan's car to Par-A-Dice Hotel and Casino in Peoria, Illinois. Harrigan played craps the entire night and into the early morning hours of April 12, 2012. Over the course of the evening, Harrigan won $23,000. At 4:29 a.m., a security guard escorted Harrigan and his friends to Harrigan's car parked in the casino's parking lot. Around 6 a.m., Harrigan drove into an underground parking garage at his apartment at 512 South Third Street in Champaign, where he was robbed at gunpoint.

¶ 8 Other evidence presented at trial showed defendant and his alleged accomplice, John Williamson, were at Par-A-Dice Casino on April 12, 2012, and they played craps at the same table as Harrigan. According to surveillance video footage, defendant and Williamson stopped gambling at 1:50 a.m., but remained at the casino. Additional footage showed at 4:03 a.m., defendant entered a silver sedan in the casino parking lot and remained there until 4:30 a.m. At that point, Williamson can be seen following Harrigan out of the casino. Williamson entered the driver's side door of the silver sedan and followed Harrigan across the street to a gas station and then toward Interstate 74.

¶ 9 Detective Donald Shepard of the Champaign Police Department testified he interviewed defendant. Defendant said he drove to the casino in a rental vehicle. He was later joined by his sister, Alicia Mister, and her boyfriend, but they left in the boyfriend's vehicle. Defendant could not recall where he rented the vehicle from because "[h]e had somebody rent the vehicle" and "he didn't know who they were." Detective Shepard also testified he asked defendant for his sister's contact information:

"I asked what her phone number was. He said, oh, it's disconnected. It's out of service. And then he recited a number. He said that he didn't know where she lived. He doesn't know her birthday. I researched that through records in Peoria. He said she lived in Peoria, but he didn't know where. And I researched the records in Peoria with the police department for the utilities. If you live in Peoria and you have water or utility services, they have your records there. They had no record of the name of the woman that he gave me."

Detective Shepard was unable to find defendant's sister. Defendant also told Detective Shepard his girlfriend's name was Tonica Williams, but Detective Shepard found her and discovered her name was Tonica Fullilove. Neither Fullilove nor Alicia testified at trial.

¶ 10 Detective Robb Morris of the Champaign Police Department testified he obtained Williamson's cell phone records. Data from those records was used to pinpoint Williamson's cell phone location between April 11, 2012, and April 12, 2012, which showed movement along Interstate 74 between Peoria and Champaign. The data also indicated Williamson's phone was in the vicinity of Champaign at the time of the robbery and that Fullilove placed a call to Williamson's phone around 7:30 a.m. Defendant's phone records showed his phone was turned off or not in service beginning at 3:12 a.m.¶ 11 At the close of the State's evidence, defense counsel moved for a directed verdict, which the trial court denied. Defendant did not testify or present any evidence. Following deliberations, the jury found defendant guilty of armed robbery. In January 2013, the trial court sentenced him to 30 years in prison.

¶ 12 B. Direct Appeal and Postconviction Petition

¶ 13 On direct appeal, defendant argued, inter alia, (1) plain error occurred where a witness's testimony violated the silent witness theory, (2) plain error occurred where the trial court gave incorrect jury instructions, (3) trial counsel was ineffective, and (4) the State failed to prove him guilty of armed robbery. People v. Mister, 2015 IL App (4th) 130180, ¶ 1, 27 N.E.3d 97. This court affirmed defendant's conviction and sentence. Id.

¶ 14 In 2016, the Illinois Supreme Court denied defendant's petition for leave to appeal but issued a supervisory order (People v. Mister, No. 118934 (Ill. March 30, 2016) (supervisory order)), directing this court to vacate our prior judgment and reconsider our decision in light of People v. Thompson, 2016 IL 118667, 49 N.E.3d 393. On remand, this court again affirmed defendant's conviction for armed robbery. Mister, 2016 IL App (4th) 130180-B, ¶ 2.

¶ 15 In February 2017, defendant filed his pro se petition for postconviction relief, alleging ineffective assistance of trial counsel. Defendant argued trial counsel was ineffective because counsel failed to contact or obtain testimony from two potential alibi witnesses, Alicia Mister and Tonica Fullilove. Defendant attached to his petition an affidavit from Alicia, in which she stated:

"I, Alicia Mister, on April 12, 2012 I was at the Par-a-Dice Casino in Peoria, IL. I arrived roughly around 1[:]00 AM. While I was there I ran into my brother [defendant], at a cra[p]s table. We e[m]braced each other and even went to thesmoke area and had a conversation together. While I was leaving, [defendant] appeared in the parking lot where I was parked and asked if he could catch a ride with me to my house where he was paroled at. With no hesitation I said yes. After a few hours he wanted to leave my house and go to his girlfriend['s] house Tonica Fullilove. I agreed to take him and I did. I was never contacted by any detective or lawyer for a statement. Had I been interviewed or called to testify this would have been my testimony."

Defendant also attached a police report containing a statement from Fullilove. According to the report, Fullilove stated she did not recall any details from April 12, 2012, but she was "sure [defendant] would have been with her at night." When asked how she was sure, Fullilove stated defendant was "with her at night every night" and that "he helps her with the children and stays at home at night." Fullilove stated she did not recall defendant receiving any phone calls that night but remembered that he "got up out of bed and left for awhile." Fullilove stated defendant came home around 5 or 6 a.m.

¶ 16 In March 2017, the trial court entered a written order summarily dismissing defendant's postconviction petition as frivolous and patently without merit. The trial court stated the following:

"The defendant claims his counsel should have called his sister and Tonica Fullilove to establish his alibi. The appellate court *** dealt extensively with the defendant's alleged alibi. As stated in the opinion, the defendant lied about his sister's name and address to the police. He lied about his girlfriend's name. She appeared at the defendant's arraignment driving a car that resembled the one usedin the robbery. The defendant gave conflicting statements as to how and with whom he left the casino.

For an ineffective assistance of counsel claim to have merit, the defendant must show not only that counsel's performance was deficient, but that the defendant was prejudiced by such performance. In this case, given the evidence presented, including the defendant's inconsistent statements, counsel's failure to call his sister and girlfriend does not satisfy his claim."

¶ 17 In April 2017, defendant filed a motion to reconsider the trial court's summary dismissal of his postconviction petition, which the trial court denied.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant argues the trial court erred in summarily dismissing his postconviction petition because the petition stated an arguable claim of ineffective assistance of counsel. Specifically, defendant argues trial counsel was ineffective for failing to contact two potential alibi witnesses and present their exculpatory testimony at trial. We disagree and affirm.

¶ 21 The Postconviction Act (725 ILCS 5/122-1 to 122-7 (West 2016)) provides criminal defendants a means by which they may assert their convictions resulted from a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. People v. Guerrero, 2012...