People v. Walker

JUSTICE GORDON delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County. No. 05 CR 18000 The Honorable Thomas V. Gainer, Jr., Judge, presiding. JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Brian Walker was convicted, after a jury trial, of the first degree murder of Dehombre Barnett. The jury also found that defendant personally discharged the firearm that caused Barnett's death. Thus, defendant was sentenced to 28 years, plus an additional 25 years due to a firearm enhancement, for a total sentence of 53 years with the Illinois Department of Corrections (IDOC). ¶ 2 Defendant now appeals the first-stage dismissal of his pro se postconviction petition as frivolous and patently without merit. Although his pro se petition contained several claims, he raises only one claim on appeal: that his counsel was ineffective for failing to inform him of a mandatory 25-year firearm enhancement, thereby leading defendant to reject a 27-year plea offer from the State. For the following reasons, we do not find his arguments persuasive and affirm the first-stage dismissal.

¶ 3 BACKGROUND

¶ 4 Defendant was charged in a 12-count indictment with various offenses, including first degree murder and attempted armed robbery, stemming from the shooting death of Barnett at Barnett's barber shop on July 8, 2005, during an attempted robbery. Before trial, the State dismissed all charges except for one count, which was the count for felony murder predicated on attempted armed robbery. ¶ 5 In this appeal, defendant does not challenge either the sufficiency of the evidence against him or the admission of evidence at trial. Therefore, we incorporate by reference our prior opinion, where we described the evidence in detail. People v. Walker, 392 Ill. App. 3d 277, 279-85 (2009). In sum, the State's evidence established that defendant and Matthew Moss, an uncharged co-offender, entered the victim's barber shop shortly before the murder and ran out after two gunshots were fired. In a signed statement provided to an assistant state's attorney, defendant stated that Barnett sold marijuana from his barber shop, that Moss intended to rob Barnett, that defendant "would take any of the money or weed" that Moss "was willing to give," that the victim, Barnett, pulled out a gun, and that defendant pulled out his own gun, fired two shots at Barnett, and ran. In the signed statement, defendant admitted that the gun of his co-offender, Moss, "click[ed]" but did not fire, leaving defendant as the sole shooter. However, in a stipulation between the parties, a forensic scientist stated that, if called to testify, he would testify that a gunshot residue test performed on defendant's hands plea offer he could face a sentence of up to 60 years for first degree murder, regardless of any sentencing enhancement, yet [he] still chose to do so. Petitioner's actual sentence was not in excess of the maximum sentence he knowingly risked by rejecting the plea offer." ¶ 13 Thus, on January 4, 2016, the trial court dismissed the petition as frivolous and patently without merit, and this appeal followed. On appeal, defendant asks this court to reverse the trial court's summary dismissal and remand for second-stage proceedings. However, defendant does not specify what relief he ultimately seeks from these proceedings. From his contentions, it appears that he seeks a reversal of his conviction and a remand for the resumption of plea negotiations and a new trial, if necessary. See People v. Hale, 2013 IL 113140, ¶ 1; People v. White, 2011 IL 109616, ¶¶ 14, 31. However, even if this case was remanded as defendant seeks, there is no guarantee that the State will again make a 27-year plea offer, as defendant alleges it previously made.

¶ 14 ANALYSIS

¶ 15 Defendant claims that the trial court erred in dismissing his pro se postconviction petition as frivolous and patently without merit. On this appeal, defendant raises one claim: that his trial counsel was ineffective for failing to advise him of a mandatory 25-year firearm enhancement, leading him to reject a plea offer by the State of 27 years. For the following reasons, we affirm.

¶ 16 I. Stages of a Post-Conviction Proceeding

¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) "provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both." People v. Hodges, 234 Ill. 2d 1, 9 (2009); People v. Tyler, 2015 IL App (1st) 123470, ¶ 143. Specifically, section 122-1 of the Act provides:

"(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:

(1) in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both[.]" 725 ILCS 5/122-1(a) (West 2016).

The Act permits a person under a criminal sentence to challenge his or her conviction or sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)). ¶ 18 To be entitled to postconviction relief, a petitioner bears the burden of establishing that a substantial deprivation of his constitutional rights occurred "in the proceedings that produced the conviction or sentence being challenged." Pendleton, 223 Ill. 2d at 471; People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004); 725 ILCS 5/122-1(a) (West 2016). ¶ 19 In noncapital cases, the Act contemplates three stages. Pendleton, 223 Ill. 2d at 471-72. At the first stage, the trial court has 90 days to review a petition and may summarily dismiss it, if the trial court finds that the petition is frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss the petition within that 90-day period, the trial court must docket it for further consideration. 725 ILCS 5/122-2.1(b) (West 2016); Pendleton, 223 Ill. 2d at 472. ¶ 20 If the petition survives this initial review, the process moves to the second stage, where the trial court appoints counsel for a petitioner who cannot afford counsel. 725 ILCS 5/122-4 (West 2016). Appointed counsel may make any amendments that are "necessary" to ¶ 22; People v. Daniel, 2013 IL App (1st) 111876, ¶ 37 ("we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct").

¶ 24 II. Ineffective Assistance of Counsel

¶ 25 Defendant claims that the trial court erred in dismissing his petition at the first stage because he made a nonfrivolous claim of ineffective assistance of trial counsel. ¶ 26 Every Illinois defendant has a constitutional right to the effective assistance of counsel under the sixth amendment to the United States Constitution and under the Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala, 2013 IL 113688, ¶ 36. Claims of ineffective assistance are judged against the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois)). To prevail on a claim of ineffective assistance, a defendant must show both (1) that counsel's performance was deficient and (2) that this deficient performance prejudiced defendant. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687). ¶ 27 To establish the first prong, that counsel's performance was deficient, a defendant must show "that counsel's performance was objectively unreasonable under prevailing professional norms." Domagala, 2013 IL 113688, ¶ 36. To establish the second prong, that this deficient performance prejudiced the defendant, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694). "[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome—or put another way, that counsel's deficient performance rendered the result of the trial unreliable or fundamentally unfair." People v. Evans, 209 Ill. 2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135 (2007). ¶ 28 Although the Strickland test is a two-prong test, our analysis may proceed in any order. Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a trial court may dismiss the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264, 283 (1992). Thus, if a court finds that defendant was not prejudiced by the alleged error, it may dismiss on that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476 (2003); Albanese, 104 Ill. 2d at 527.

¶ 29 III. Strickland in the Plea Bargain Context

¶ 30 In the plea bargain context, to show prejudice, a defendant must establish certain factors, as we discuss below. Our supreme court found that the factors listed in People v. Curry, 178 Ill. 2d 509, 529-30 (1997), no longer control and that the factors set forth in Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), are the ones that now control. Our supreme court clearly stated: "Frye and Cooper, rather than Curry, control and the factors set forth in those cases must now be relied upon in deciding if prejudice has been shown where a plea offer has lapsed or been rejected because of counsel's deficient performance." Hale, 2013 IL 113140, ¶ 20. ¶ 31 According to Hale, Frye, and Cooper, to show prejudice in the plea bargain context, a defendant must show a reasonable probability (1) that, but for his counsel's deficient advice, he would have accepted the plea offer, (2) that the plea would have been entered without the prosecution cancelling it, (3) that the trial court would have accepted the bargain, assuming that it had discretion under state law to accept or reject it, and (4) that "the end result of the a plea offer as objective evidence supporting defendant's claim. Hale, 2013 IL 113140, ¶ 18. However, as we explained above, this consideration does not help defendant here. Thus, even if we accept his contention that his attorney failed to inform him of the enhancement, he cannot show prejudice on the facts observed in this case. ¶ 37 Our supreme court in Hale concluded that it would be unnecessary to review the other arguments of the State since we have already concluded that defendant cannot establish the prejudice prong of defendant's claim of ineffective assistance of trial counsel. Hale, 2013 IL 113140, ¶ 30 ("we find it unnecessary to examine the additional factors necessary for a finding of prejudice"). ¶ 38 In conclusion, on the particular facts of this case, we find that defendant cannot show prejudice where he faced a possible 60-year sentence, even without the 25-year firearm enhancement, and where his 53-year sentence is less than the 60 years he was willing to risk.

Section 5-8-1(a)(1)(a) provides that, for first degree murder, "a term shall be not less than 20 years and not more than 60 years." 730 ILCS 5/5-8-1(a)(1)(a) (West 2004). --------

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, we affirm the trial court's first-stage dismissal of defendant's pro se postconviction petition. ¶ 41 Affirmed.