People v. Simmons

• Decision Date: 20 February 2009
• Docket Number: No. 1-06-3114.,1-06-3114.
• Citation: 903 N.E.2d 437
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dalmanic A. SIMMONS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

903 N.E.2d 437

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dalmanic A. SIMMONS, Defendant-Appellant.

No. 1-06-3114.

Appellate Court of Illinois, First District, Sixth Division.

February 20, 2009.

Michael Pelletier, Deputy Defender, and Stephanie L. Horten, and Kathleeen M. Flynn, Assistant Appellate Defenders, Office of State Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney, and James E. Fitzgerald, and Michele Grimaldi Stein, Assistant State's Attorneys, County of Cook, Chicago, IL; with the help of Omar Jaleel, (graduate of the John Marshall School of Law, and a Bar Taker in the Cook County State's Attorney's Office, Criminal Division), for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Defendant, Dalmanic A. Simmons, appeals from the circuit court's denial of leave to file his third successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). For the reasons that follow, we affirm.

I. BACKGROUND

On December 8, 1990, defendant, who was 15 years old at the time, was arrested in connection with the armed robbery and first degree murder of the victim, Ki B. Nam. After being in police custody for almost seven hours, defendant gave a statement to police admitting his guilt. On August 7, 1991, pursuant to a negotiated plea, defendant pled guilty to murder and armed robbery. The trial court subsequently sentenced him to concurrent sentences of 40 years for first degree murder and 30 years for armed robbery.

As part of the negotiated plea hearing, the State presented a factual basis for the crimes charged and defendant stipulated that these would be the facts adduced if he were to proceed to trial. The State indicated that the evidence would show that on November 27, 1990, at about 12:05 p.m., defendant went to a store located at 1606 West 63rd Street in Chicago, which was owned and operated by the 53-year-old victim, Ki Nam. Defendant knocked on the door, and Ki Nam allowed him to enter the store by "buzzing him inside." Once inside, defendant told Ki Nam that he wanted to buy a watch. When Ki Nam asked defendant which watch he wanted, defendant pulled out a gun and shot him once. Ki Nam fell to the floor and defendant went to the cash register. When Ki Nam began to crawl toward the alarm, defendant shot him again. As Ki Nam continued his efforts to crawl to the alarm, defendant shot him two more times.

Defendant then grabbed about $48 from the cash register and attempted to flee but was unable to do so because Ki Nam needed to "buzz" him out of the store. Defendant shot the glass window in the front door and left. Ki Nam sustained four gunshot wounds and died approximately three days later from complications from those gunshot wounds.

Following his sentence, defendant did not seek to withdraw his guilty plea or to pursue a direct appeal. Rather, on October 8, 1992, defendant filed a pro se postconviction petition alleging, inter alia, that: (1) he could not understand the nature of the proceedings; (2) his sentence was excessive; (3) the trial court did not substantially comply with Supreme Court Rule 402 (177 Ill.2d R. 402); (4) he did not understand the constitutional rights he was waiving when he pled guilty; (5) he did not understand the consequences of his guilty plea; (6) he did not understand the charges against him; (6) he was coerced into pleading guilty and did so only after a police officer "smacked" him while he was handcuffed to a wall during questioning, and because he was "scared, confused and tired and did not know who to go to for help"; (7) his arrest was unconstitutional; (8) he was unable to confront any State witnesses; (9) his mother was not allowed to be present during his interrogation; (10) he was denied a fair trial; and (11) he was denied the effective assistance of counsel because counsel failed to communicate with him and because she "deceived" him into pleading guilty by telling him that he would only have to serve 4 years of his 40-year sentence.

On October 19, 1992, the circuit court summarily dismissed defendant's postconviction petition as frivolous and without merit, stating, "[t]he defendant was admonished with regard to his plea with regard to each and every issue he states in his said petition."

Defendant appealed. In a summary order, the appellate court remanded the petition for an evidentiary hearing solely on the issue of whether defense counsel coerced defendant into pleading guilty. See People v. Simmons, No. 1-93-0331, 267 Ill.App.3d 1078, 226 Ill.Dec. 125, 684 N.E.2d 1121 (1994) (unpublished order pursuant to Supreme Court Rule 23). In doing so, the appellate court stated:

"We * * * remand for a post-conviction hearing. However, our decision is based solely on defendant's allegation that his attorney coerced him into taking the guilty plea because [the] attorney told defendant that `[h]e would only do 4 years, if [he] stayed out of trouble.' If true, this statement presents a gist of a meritorious constitutional claim and entitles defendant to a hearing." People v. Simmons, No. 1-93-0331, 267 Ill.App.3d 1078, 226 Ill.Dec. 125, 684 N.E.2d 1121 (1994) (unpublished order pursuant to Supreme Court Rule 23).

Pursuant to the appellate court's order, on June 3, 1996, the circuit court conducted an evidentiary hearing to determine whether defendant's plea of guilty was the product of coercion on the part of defense counsel. During that hearing, defendant testified that a few months after his initial incarceration, he learned from some prison officers that he would have to serve 20 years of his 40-year sentence. Defendant testified that as soon as he learned this, he filed his pro se postconviction petition alleging counsel's ineffectiveness.

Defendant testified that when he was initially arrested on December 8, 1990, he was 15 years old, and that before he pled guilty, he spent eight months in police custody. According to defendant, during that time, his trial attorney, Julie Harmon, visited him on six occasions. Defendant averred that Harmon told him that he "did not have a chance to win at trial" and that "it would be in [his] best interest" to plead guilty. According to defendant, after a Rule 402 conference was held before the trial judge, Harmon spoke to defendant again, this time indicating that she was trying to negotiate a 20-year sentence for defendant, but that the State was asking for 60 years, and that the judge had indicated that he would permit a plea bargain for 40 years' imprisonment. Defendant testified that upon hearing this, he told Harmon that he wished to proceed with a jury trial. According to defendant, Harmon then told him that she would give him "some time to think about it." Defendant further averred that the next time he spoke to Harmon she again suggested that he plead guilty. Defendant testified that at this time Harmon told him that if he "took the plea bargain and went to the Department of Corrections and stayed out of trouble and got involved in every program that they offered," he would only have to serve four years of his sentence. According to defendant, it was only after this conversation with Harmon, that he decided to plead guilty.

Defendant acknowledged that he understood everything the judge told him at the plea hearing and that he heard the judge sentence him to 40 years' imprisonment. However, defendant averred that he did not question the 40-year sentence because Harmon had told him that the sentence would be 40 years, but that he would only have to serve 4 if he stayed out of trouble and got involved in every program that was offered at the correctional institution.

Defendant's aunt, Jacquelinn Walker, next testified that she was present in court for defendant's proceedings on one occasion. She averred that at that time, she and defendant's mother spoke with defendant's attorney, Julie Harmon, who told them that defendant was facing "no less than four years and not more than 40" years' imprisonment. According to Walker, Harmon warned them that if defendant chose to go to trial, the sentence "would be stretched out longer."

Julie Harmon, a Cook County public defender, next testified that in December 1990, she was assigned to the murder task force, and that she had been working in that department for about five to six years. Harmon averred that beginning in December of 1990 and continuing through 1991, she represented defendant in his pretrial and guilty plea proceedings.

Harmon testified that during her conferences with defendant, she informed him of "the nature of the witnesses against him, the fact of the court reported confession" and told him that "there were no pretrial motions that [she] was aware of that he would be eligible for." Harmon further stated that she told defendant that there was a possibility that he could be sentenced up to 60 years in prison and that there was "a potential for natural life because of the nature of the charges."

According to Harmon, following the Rule 402 conference, she informed defendant that if he pleaded guilty, the court would impose a 40-year sentence, but that this would not necessarily be the same sentence the judge would impose if defendant chose to proceed with a trial. Harmon stated that defendant then asked her whether he would get credit "for the time he had been serving in custody," and she told him that "there were other ways to achieve good time perhaps in the jail and that he should make the most of his time while he was there and he should try to finish his schooling." Harmon also told defendant that she would ask the court to permit defendant to serve his sentence at a juvenile facility until he reached the age of 17, and that there was a possibility that the court would permit him to remain in the juvenile facility until he turned 21.

Harmon denied telling defendant that he would only have to serve 4 years of the 40-year...