People v. Usher
| Decision Date | 15 December 2009 |
| Docket Number | No. 2-08-0008.,2-08-0008. |
| Citation | 920 N.E.2d 1135,336 Ill. Dec. 545 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jermaine USHER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Kim M. DeWitt, Office of State Appellate Defender, Elgin, IL, for Appellant.
Michael J. Waller, Lake County State's Attorney, Waukegan, IL, Robert J. Biderman, State's Attorneys Appellate Prosecutor, Kathy Shepard, State's Attorneys Appellate Prosecutor, Springfield, IL, for Appellee.
Following a bench trial, defendant, Jermaine Usher, was convicted of armed violence (720 ILCS 5/33A-2 (West 1996)) and sentenced to 40 years' imprisonment. He subsequently filed a petition under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)), alleging, among other things, that his trial counsel was ineffective for failing to file a notice of appeal. The trial court summarily dismissed defendant's petition, and defendant contests this first-stage dismissal on appeal. We reverse and remand.
Defendant was charged initially with armed violence, aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1996)), and aggravated battery (720 ILCS 5/12-4(a) (West 1996)). The charges stemmed from the drive-by shooting of Noble Blanchard on November 20, 1997, in North Chicago. Blanchard was sitting in the passenger seat of a car driven by Karinder Gordon. At defendant's bench trial on August 18, 1998, both Blanchard and Gordon testified that they saw defendant leaning out of the driver's side window of a black car, holding a gun. The men ducked and heard shots. A bullet went through the rear window of the car Gordon was driving and struck Blanchard in the back of the head. Defendant presented three witnesses who testified that although defendant was in the vicinity of the shooting and was driving a black car, he was not the person who shot Blanchard, because either he was with the witnesses or they could see him driving off when they heard the gunshots. The trial court found defendant guilty of all four counts.
On September 2, 1998, defendant filed a motion for a new trial, and on January 8, 1999, he filed a supplemental motion for a new trial. On June 4, 1999, after defendant presented additional witnesses' testimony, the trial court denied the motion. Defendant was eligible for an extended term of imprisonment based on a prior conviction, and on June 18, 1999, the trial court sentenced him to 40 years' imprisonment for the armed violence charge, finding that the remaining charges merged. The trial court then admonished defendant regarding his right to appeal.
On July 7, 1999, defendant filed a motion for a new trial and to reconsider his sentence. On August 23, 1999, trial counsel informed the trial court that after researching the issue and speaking with defendant's mother, he had decided to withdraw the motion to reconsider the sentence because he had no basis for asking the trial court to reduce the sentence other than mercy. Trial counsel admitted that he had not discussed withdrawing the motion with defendant, so the trial court ordered him to consult with defendant before withdrawing the motion. On August 27, 1999, trial counsel stated that he would go ahead with the motion because he had been unable to reach defendant. The trial court denied the motion.
Several years later, in July 2004, defendant wrote a letter to the court clerk, stating, "PLEASE BE ADVISED that I am trying to ascertain the current status of my notice of appeal." On January 3, 2005, the trial court ordered the clerk to send a letter notifying defendant that there was no notice of appeal on file. In December 2005, defendant wrote another letter to the court clerk, which asked "[h]ow to get a late notice of appeal accepted in to [sic] the courts, Being [sic] that it is not my fault why I have not fild [sic] a [sic] appeal yet!" The trial court treated this as a motion and denied it on December 21, 2005.
On February 14, 2006, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)). He alleged, among other things, that his trial counsel waived his right to appeal and that "trial counsel didn't attacked [sic] this issue [of newly discovered evidence] in the appellate court to determine if this ruling denieing [sic] the motion for a new trial could withstand a due process test." The State filed a response, and in defendant's July 2006 reply, he stated that trial counsel "refused/failed or did NOT know how to perfect my appeal in this case."
On October 31, 2006, attorney James Schwarzbach entered an appearance on defendant's behalf. He filed a postconviction petition for defendant on May 30, 2007. In it, he alleged, among other things, that trial counsel was ineffective in that he "failed to file a notice of appeal, or to perfect the Defendant's appeal rights after the denial of Defendant's motion for reconsideration of sentence." He further alleged that: (1) defendant "was not properly advised by either the Court or his trial attorney of his appeal rights"; (2) "trial counsel failed to file a timely notice of appeal; and, in fact, a notice of appeal was never filed"; (3) defendant "made consistent efforts to ascertain the status of his appeal, in the belief that his appellate rights had been perfected; and sought notification from the court as to the status of his appeal"; and (4) defendant "at all times prior to January 2005 was led to believe that a notice of appeal, and appeal had been filed in his case." Attachments to the petition included a January 3, 2005, letter from the court clerk stating that in response to defendant's letter regarding the status of his appeal, the trial court had reviewed his file and determined that no notice of appeal had been filed.
At a hearing on June 28, 2007, attorney Schwarzbach informed the trial court that the postconviction petition was brought independently of defendant's section 2-1401 petition and was not meant to supersede it. The trial court said it would continue the section 2-1401 petition while it considered the postconviction petition.
In a written order entered on August 21, 2007, the trial court summarily dismissed defendant's postconviction petition as frivolous and patently without merit. Regarding the issue of the failure to file a notice of appeal, the trial court stated that defendant was advised of his appeal rights when he was sentenced, so he could not claim that he was not aware of his ability to file an appeal. The trial court further stated that defendant merely alleged that no appeal was filed and did not allege that he instructed his attorney to file an appeal. The trial court also ruled that defendant failed to include a supporting affidavit regarding whether he had asked his attorney to file an appeal.
On September 19, 2007, attorney Schwarzbach filed a motion to reconsider the dismissal of the postconviction petition or, alternatively, to grant leave to file additional affidavits. He argued that the trial court should construe defendant's pro se section 2-1401 petition and July 2006 reply to the State's response as verification or affidavits in support of the postconviction petition. The trial court denied the motion on December 27, 2007, and defendant timely appealed.
On appeal, defendant argues that the trial court erred by summarily dismissing his postconviction petition, because he stated the gist of a constitutional claim of ineffective assistance of counsel. The Act creates a three-stage process for the adjudication of postconviction petitions in noncapital cases. People v. Harris, 224 Ill.2d 115, 125, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007). In the first stage, the trial court independently determines, without input from the State, whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2006); People v. Boclair, 202 Ill.2d 89, 99, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002). A petition is frivolous or patently without merit only if it has no arguable basis in law or fact. People v. Hodges, 234 Ill.2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). This is true if the petition is based on an indisputably meritless legal theory, such as one that is completely contradicted by the record, or a fanciful factual allegation. Hodges, 234 Ill.2d at 16-17, 332 Ill.Dec. 318, 912 N.E.2d 1204. At the first stage, the petition's allegations, liberally construed and taken as true, need to present only "the gist of a constitutional claim." People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). The petition needs to set forth just a limited amount of detail and does not need to set forth the claim in its entirety. Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442. If the petition is frivolous or patently without merit, the trial court must dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2006). Otherwise, the proceedings move on to the second stage. Harris, 224 Ill.2d 115, 308 Ill.Dec. 757, 862 N.E.2d 960. We review de novo a trial court's first-stage dismissal of a postconviction petition. People v. Shaw, 386 Ill.App.3d 704, 708, 325 Ill.Dec. 708, 898 N.E.2d 755 (2008).
For a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hodges, 234 Ill.2d at 17, 332 Ill.Dec. 318, 912 N.E.2d 1204. The defendant must show that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) the deficient performance resulted in prejudice. Hodges, 234 Ill.2d at 17, 332 Ill. Dec. 318, 912 N.E.2d 1204. At the first stage of a...
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