People v. Nelson

• Decision Date: 10 March 2016
• Docket Number: No. 4–14–0168.,4–14–0168.
• Citation: 49 N.E.3d 1007
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Brandon J. NELSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

49 N.E.3d 1007

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Brandon J. NELSON, Defendant–Appellant.

No. 4–14–0168.

Appellate Court of Illinois, Fourth District.

March 10, 2016.

Michael J. Pelletier, Jacqueline L. Bullard, and Joel C. Wessol, all of State Appellate Defender's Office, Springfield, for appellant.

John Milhiser, State's Attorney, Springfield (Patrick Delfino, David J. Robinson, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice KNECHT

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Brandon J. Nelson, appeals the second-stage dismissal of his postconviction petition under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1

to 122–7 (West 2012)). Defendant argues (1) postconviction counsel failed to provide reasonable assistance by not providing necessary documentation to support his claims; (2) the Sangamon County circuit clerk, rather than the trial court, improperly imposed fines on defendant after sentencing; (3) he is entitled to 14 additional days of credit against his sentence; and (4) Illinois's statute triggering the automatic transfer of juveniles to adult court (705 ILCS 405/5–130 (West 2008) ) violates the eighth amendment's prohibition against cruel and unusual punishment (U.S. Const., amend. VIII ). We affirm but remand for the imposition of mandatory fines and applicable monetary credit against those fines.

¶ 2 I. BACKGROUND

¶ 3 In September 2007, the State charged defendant with three counts of first degree murder (720 ILCS 5/9–1(a)(1)

, (a)(2) (West 2006)), alleging defendant tossed a concrete block on Devyn Greff's head, causing Greff's death.

¶ 4 At a jury trial, testimony established Greff, the victim, was involved in a fight with defendant's uncle, Antowin Nelson. That night, Antowin, riding his bike alone, encountered Greff and Greff's roommate, Jeremy Younker. The testimony differs on the events that led to the physical altercation but shows defendant and another male arrived at some point to assist his uncle. During the dispute, Antowin punched Greff, causing Greff to fall straight back, with his head striking the concrete. Younker believed Greff was “knocked out,” because he was lying “on his back and his arms were stiff.” One witness testified Greff was motionless except his teeth were chattering. Antowin left the scene, but defendant approached Greff from “around the corner” and tossed a “cinder block” onto Greff's head.

¶ 5 Dr. Jessica Bowman, a pathologist, testified Greff died from blunt-force trauma to his head

. She opined the trauma causing Greff's death occurred when the concrete block struck Greff. Dr. Bowman stated Antowin's punch did not cause Greff's death.

¶ 6 The jury found defendant guilty. He was sentenced to a prison term of 40 years, with credit for 855 days presentence custody. Defendant pursued a direct appeal, and this court affirmed defendant's conviction and sentence. People v. Nelson, 2011 IL App (4th) 100096–U, ¶ 3, 2011 WL 10481448

. A detailed summary of the trial testimony appears in that disposition. See id.

¶ 7 In July 2012, defendant filed a pro se petition under the Act, asserting claims of ineffective assistance of counsel and actual innocence. Defendant asserted trial counsel provided ineffective assistance by not challenging Dr. Bowman's credentials. Defendant also asserted the evidence showed Greff suffered two blows to his head before he was struck by the concrete block: Antowin's punch and the resulting fall. Defendant emphasized Greff's teeth were chattering before the cinder block landed on his head, and “teeth-chattering is a sign of traumatic brain injury

.” Defendant attached to his petition multiple newspaper articles regarding Dr. Bowman and printouts from websites, showing teeth chattering may indicate traumatic brain injury (see, e.g., Tremor, Wikipedia, https://en.wikipedia.org/wiki/Tremor (last visited Feb. 29, 2016)). In August 2012, counsel was appointed to represent defendant in postconviction proceedings.

¶ 8 In October 2013, postconviction counsel filed an amended petition. Postconviction counsel argued, in part, trial counsel was ineffective for failing to hire an independent expert to rebut Dr. Bowman's testimony and appellate counsel was ineffective for not raising the issue on direct appeal. Counsel also maintained trial counsel's performance was deficient because he did not emphasize Dr. Bowman lacked board certification and Greff sustained multiple blows to his head before his death. Counsel asserted, had trial counsel retained another pathologist, “there is a reasonable probability that the jury could have determined that the killing blow was Mr. Greff's head striking the concrete immediately following [Antowin's] punch.” Counsel emphasized Dr. Bowman did not opine whether Greff could have suffered the fatal injury when his head struck the concrete driveway.

¶ 9 The State moved to dismiss defendant's petition. The State argued, in part, defendant's contentions regarding Dr. Bowman's testimony were conclusory and defendant failed to allege any facts supporting an evidentiary hearing. The trial court determined defendant provided no facts to support his allegations, found no substantial violation of defendant's constitutional rights, and dismissed the amended petition.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 A. Reasonable Assistance of Postconviction Counsel

¶ 13 On appeal, defendant first argues postconviction counsel provided unreasonable assistance when he failed to make necessary amendments to the pro se postconviction petition to present adequately his claim regarding Dr. Bowman's findings. Defendant contends counsel failed to provide reasonable assistance because he did not attach affidavits to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

.

¶ 14 The Act provides a means by which criminally convicted individuals may argue their convictions resulted from a substantial denial of their constitutional rights. People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204, 1208 (2009)

. Proceedings under the Act are initiated by the filing of a petition that “clearly set[s] forth the respects in which petitioner's constitutional rights were violated.” 725 ILCS 5/122–2 (West 2012). At this stage, although a petitioner need only provide a limited amount of detail in his petition, the petitioner is not excused from providing factual details surrounding the alleged constitutional deprivation. People v. Delton, 227 Ill.2d 247, 254, 317 Ill.Dec. 636, 882 N.E.2d 516, 519–20 (2008). Section 122–2 of the Act requires the petitioner to attach factual documentation to support the petition or explain the absence of such documentation. 725 ILCS 5/122–2 (West 2012). Such documentation “must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition's allegations.” Delton, 227 Ill.2d at 254, 317 Ill.Dec. 636, 882 N.E.2d at 520. The failure to attach such documentation or explain its absence justifies dismissal of the petition at the first stage of proceedings. People v. Collins, 202 Ill.2d 59, 66, 270 Ill.Dec. 1, 782 N.E.2d 195, 198 (2002).

¶ 15 If the petition is not dismissed at the first stage, it advances to the second stage, where, if necessary, the court appoints counsel for the petitioner. People v. Snow, 358 Ill.Dec. 117, 964 N.E.2d 1139, 2012 IL App (4th) 110415, ¶ 14

. At this stage, appointed counsel is expected to ensure the petitioner's complaints are adequately presented and to provide reasonable assistance. People v. Suarez, 224 Ill.2d 37, 42, 46, 308 Ill.Dec. 774, 862 N.E.2d 977, 979–80, 982 (2007). To meet these goals, our supreme court drafted Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). The rule requires appointed counsel to consult with the petitioner to ascertain his contentions, examine the record of the trial proceedings, and make any amendments to the pro se petition necessary for an adequate presentation of the petitioner's complaints. People v. Kuehner, 2015 IL 117695, ¶ 20, 392 Ill.Dec. 347, 32 N.E.3d 655.

¶ 16 Rule 651

's mandate requiring counsel to make necessary amendments is not limitless. For example, case law establishes counsel is “under no obligation to actively search for sources outside the record that might support general claims raised in a post-conviction petition.” People v. Johnson, 154 Ill.2d 227, 247, 182 Ill.Dec. 1, 609 N.E.2d 304, 314 (1993). Our supreme court also held, if a pro se petitioner fails to specify a particular witness to support a claim, appointed counsel is under no obligation to go on a “fishing expedition” to find a witness. Id. at 247–48, 182 Ill.Dec. 1, 609 N.E.2d at 314.

¶ 17 Analogous to this case, our supreme court held, in People v. Williams, 186 Ill.2d 55, 61, 237 Ill.Dec. 112, 708 N.E.2d 1152, 1155 (1999)

, Rule 651(c) does not require appointed counsel to provide an affidavit or other documentation from an unidentified expert witness. In Williams, the defendant, convicted of murder, filed a pro se postconviction petition, alleging, “trial counsel was ineffective for failing to obtain the assistance of a blood-type expert to type the blood on [the victim's] clothing.” Id. at 59, 237 Ill.Dec. 112, 708 N.E.2d at 1154. The trial court appointed counsel, who filed an amended postconviction petition which included the above claim, but counsel did not attach affidavits to the amended petition. Id. On appeal from the dismissal of his postconviction petition, the Williams defendant argued his postconviction counsel failed to comply with Rule 651(c) by not supporting the claims in the amended petition with affidavits or other evidence. Id. The Williams court, relying on Johnson, found postconviction “counsel clearly had no obligation to seek out a blood-type expert.” Id. at 61, 237 Ill.Dec. 112, 708 N.E.2d at 1155. The...