People v. Taylor
| Decision Date | 16 November 2022 |
| Docket Number | 4-21-0748 |
| Citation | 2022 IL App (4th) 210748 U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEVITO M. TAYLOR, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County No. 17CF462 Honorable Roger B. Webber, Judge Presiding.
ORDER
¶ 1 Held: We grant the Office of the State Appellate Defender's motion to withdraw as appellate counsel and affirm the trial court's judgment finding no meritorious claims can be raised on appeal.
¶ 2 Defendant, Devito M. Taylor, appeals from the trial court's summary dismissal of his postconviction petition. On appeal, the Office of the State Appellate Defender (OSAD) moves to withdraw as appellate counsel on the ground no issue of arguable merit can be raised. We grant OSAD's motion and affirm the trial court's judgment.
¶ 4 In April 2017, the State charged defendant with two counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) (counts II and VI) and one count each of being an armed habitual criminal (id. § 24-1.7(a)) (count I), possession of a stolen firearm (id. § 24-3.8(a)) (count III), manufacture or delivery of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of a substance containing cocaine (720 ILCS 570/401 (a) (2) (A) (West 2016)) (count IV), and unlawful possession of a controlled substance with intent to deliver less than 50 grams of a substance containing hydrocodone (id. § 401(d)) (count V). The charges related to items discovered during the execution of a search warrant at defendant's residence.
¶ 5 Officer Jim Kerner of the Urbana Police Department was a member of the Street Crimes Task Force and filed the complaint and affidavit for search warrant. In March 2017 Kerner met with a confidential informant who informed investigators he had purchased cocaine from a man he knew as "Vito" at Vito's residence on Northwood Drive South in Champaign on "over one hundred occasions." Kerner matched the name Vito to defendant, whose residence was at 1212 Northwood Drive South, and the confidential informant positively identified a photograph of defendant as Vito. Kerner used the confidential informant in two separate controlled buys with defendant. Kerner supplied the confidential informant with a "video-only recording device." Investigators surveilled the controlled buys and the confidential informant was inside defendant's residence for approximately three minutes. The confidential informant told investigators he only had contact with defendant when he purchased the substance, which tested positive in a field test for cocaine. Kerner watched the video recorded by the confidential informant's camera during the purchases. During the second purchase, Kerner saw defendant "holding a plastic bag containing suspected cocaine."
¶ 6 Prior to trial, defendant filed a motion to compel supplemental discovery. Defendant argued, in part, for the release of the identity of the confidential informant. Without the confidential informant's name and criminal history, counsel was "unable to assess whether any motions would be appropriate regarding the validity of the Search Warrant and Complaint and Affidavit for Search Warrant."
¶ 7 During a hearing on the motion, counsel argued she could not "make a valid assessment as to whether or not [she] would have potentially a motion to suppress" without the confidential informant's identity and other items related to the search warrant. The State argued the request related to probable cause, not guilt or innocence, and it was not required todisclose the identity of the confidential informant. The State confirmed it did not intend to call the confidential informant as a witness.
¶ 8 The trial court denied defendant's motion. The court found under Illinois Supreme Court Rule 412(j) (ii) (eff. March 1, 2001), a confidential informant's identity did not need to be disclosed where the defendant's constitutional rights were not infringed. Because the State did not intend to call the confidential informant as a witness and the informant was solely involved in the controlled buys for which defendant was not charged, disclosure was not required.
¶ 10 In December 2017, defendant's jury trial commenced. The State proceeded only on counts I, IV, and VI.
¶ 11 Officer Kerner testified he participated in the search of defendant's residence. Defendant was the only person at home and was found "laying on his back on his bed in the southeast bedroom." Defendant confirmed he slept in the bedroom where police officers found him. Kerner identified People's Exhibit No. 1 as "36 smaller individually packaged bags" containing suspected crack cocaine and People's Exhibit No. 2 as a small "cylinder-shaped glass container" of suspected cocaine, both recovered from defendant's front right pants pocket. Kerner testified he and Officer Corey Phenicie further searched defendant's bedroom and found a Beretta .25-caliber pistol under the mattress, five individually packaged bags of suspected cocaine in the pocket of a blue bathrobe, eight individually packaged bags of suspected cocaine in the pocket of a red bathrobe, and a larger bag of suspected cocaine behind the bedroom door, which Kerner identified as People's Exhibit Nos. 3, 4, 5, and 7, respectively. Kerner also identified People's Exhibit No. 6, which was a plastic bag containing a "sizable amount" of suspected cocaine found in the hallway of the home. Based on his experience, Kerner believed the bags containing the substances were packaged for sale and their total street value to be approximately $7000.
¶ 12 Officer Matthew Ballinger testified he remained with defendant while other officers secured the residence. Ballinger stated defendant attempted to initiate a conversation and said "something in regards to,
¶ 13 Defendant testified on his own behalf and indicated his wife and 15-year-old son resided with him. Defendant also testified he and his wife occasionally slept in separate bedrooms and stated he had fallen asleep in his wife's bedroom on the day police executed the search warrant. Defendant denied previously seeing any of the bags of suspected cocaine found throughout the residence or the .25-caliber pistol seized by police. Defendant stated both bathrobes in the bedroom belonged to his wife.
¶ 14 At the conclusion of the trial, the jury found defendant guilty of manufacture or delivery of a controlled substance with intent to deliver 15 grams or more but less than 100 grams of a substance containing cocaine.
¶ 15 The trial court sentenced defendant to 30 years' imprisonment. Defendant appealed his conviction and sentence, and this court affirmed. See People v. Taylor, 2020 IL App (4th) 180300-U.
¶ 17 On August 21, 2021, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). In his petition, defendant argued he received ineffective assistance of counsel where counsel did not (1) challenge the search warrant for violating the eavesdropping statute (see 720 ILCS 5/14-5 (West 2016)), (2) argue the search warrant was the product of fraud, (3) raise an entrapment defense at trial, and (4) successfully argue for the disclosure of the confidential informant's identity.
¶ 18 On November 15, 2021, the trial court entered a written order summarily dismissing defendant's petition as frivolous and patently without merit. The court imposed a $40 filing fee and directed the Department of Corrections to collect the money from defendant's trust fund account.
¶ 19 Defendant appealed the trial court's summary dismissal of his postconviction petition. The court appointed OSAD to represent defendant on appeal. In May 2022, OSAD moved to withdraw as counsel on appeal. We granted defendant leave to file a response to OSAD's motion on or before June 14, 2022. Defendant has not done so.
¶ 21 OSAD contends no meritorious argument can be made the trial court erred in summarily dismissing defendant's postconviction petition. We agree.
¶ 22 The Act provides a mechanism for a criminal defendant to challenge his conviction or sentence based on a substantial violation of federal or state constitutional rights. People v. Morris, 236 Ill.2d 345, 354, 925 N.E.2d 1069, 1074-75 (2010). Proceedings under the Act are collateral in nature and not an appeal from the defendant's conviction or sentence. People v English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. At the first stage of proceedings, the trial court must, within 90 days and without seeking or relying on input from the State, summarily dismiss the petition if it determines the petition is frivolous or patently without merit, meaning "the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill.2d 1, 11-12 912 N.E.2d 1204, 1209 (2009); see also 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Gaultney, 174 Ill.2d 410, 419, 675 N.E.2d 102, 107 (1996). At the first stage of proceedings under the Act, all well-pleaded allegations are to be taken as true unless those allegations are positively rebutted by the record. People v. Brown, 236 Ill.2d 175, 189, 923 N.E.2d 748, 757 (2010). We review the trial court's summary dismissal of a postconviction...
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