Opinion
1-18-2113
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LATHERN LAMPKINS, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 06 CR 8798 Honorable James Michael Obbish, Judge Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Harris and Johnson concurred in the judgment.
ORDER
PIERCE, PRESIDING JUSTICE
¶ 1 Held: The circuit court did not err in summarily dismissing petitioner's pro se postconviction petition.
¶ 2 Petitioner appeals from the summary dismissal of his pro se postconviction petition and argues that the circuit court erred in dismissing his petition because he alleged an arguable claim that he received ineffective assistance of trial counsel. For the following reasons, we affirm the circuit court's summary dismissal of petitioner's petition.
¶ 3 BACKGROUND
¶ 4 On March 19, 2006, petitioner, then 17 years old, and codefendant Robert Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st Street and walk toward a vehicle parked on the street. Petitioner and codefendant approached Porter, pointed guns at his head, and demanded his wallet. Porter indicated that he did not have his wallet, and, holding him at gunpoint, they searched Porter's vehicle and then took him back into the house. After Porter opened the door to his residence, petitioner and codefendant stole several items including bank cards and jewelry. While in the house, petitioner pointed a gun at Porter's girlfriend Katherine Benson and sexually assaulted her. While holding Porter at gunpoint, they then took Porter to a bank and forced him to withdraw money from a cash station. Porter complied and gave petitioner the cash. While petitioner and codefendant took Porter to the cash station, Benson called the police. They dropped off Porter in an alley and were arrested shortly thereafter. On April 20, 2006, petitioner and codefendant were charged with numerous counts in connection with this incident, including aggravated criminal sexual assault (ACSA), home invasion, armed robbery, vehicular hijacking, kidnaping, and unlawful restraint.
¶ 5 Following a 2008 bench trial, petitioner was convicted of ACSA with a firearm, two counts of home invasion, armed robbery, and vehicular hijacking. He was then sentenced to 27 years' imprisonment for ACSA, which included a 15-year add-on for being armed with a firearm, to run consecutively to the four concurrent terms of 8 years' imprisonment imposed on his remaining convictions. This court affirmed that judgment on direct appeal after allowing direct-appeal counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). People v. Lampkins, No. 1-08-2535 (2010) (unpublished order under to Supreme Court Rule 23).
¶ 6 Petitioner filed a pro se postconviction petition on June 13, 2012, alleging, in pertinent part, that appellate counsel was ineffective for failing to raise any issues on his behalf. In particular, petitioner maintained that counsel did not raise any issue on appeal "before-during-and or after reviewing the petitioner transcripts," was in "dis-attude" when counsel stated that there were no issues of arguable merit and filed a motion to withdraw, and was ineffective for "not filing ineffective assistance on the trial counsel for not preserving issues by objecting so that the defendant could [have] had meritorious issues to raise in his appeal." According to petitioner, appellate counsel's performance fell below an objective standard of reasonableness and prejudiced him.
¶ 7 On August 3, 2012, the circuit court dismissed petitioner's petition as frivolous and patently without merit. In doing so, the court found, in relevant part, that because petitioner's underlying claims of ineffective assistance of trial counsel were without merit, the ineffective assistance of appellate counsel claim based on counsel's failure to argue ineffective assistance of trial counsel was likewise without merit. Petitioner appealed.
¶ 8 In his brief on appeal, postconviction appellate counsel raised the issue of whether direct-appeal counsel was ineffective for failing to challenge the 15-year add-on penalty to his sentence on ACS A for possessing a firearm at the time he committed the offense. We found that this issue could not be raised for the first time on appeal because it was not included in petitioner's postconviction petition, even under liberal construction, and affirmed the summary dismissal of his petition. People v. Lampkins, 2014 IL App (1st) 123519-U. We noted that petitioner was free to pursue any defaulted claims he believed to be of merit by filing a successive postconviction petition. However, on petition for rehearing, this court reversed the summary dismissal of petitioner's postconviction petition, vacated petitioner's sentence for aggravated criminal sexual assault because, pursuant to People v. Hauschild, 226 Ill.2d 63 (2007), the firearm enhancement violated the proportionate penalties clause of the Illinois Constitution and remanded for a new sentencing hearing. People v. Lampkins, 2015 IL App (1st) 123519, ¶¶ 14-15.
¶ 9 On remand for resentencing, the trial court appointed counsel for petitioner and ordered a new presentence investigation report (PSI). The PSI report indicated that petitioner had a pending 2006 criminal case in Macon County for aggravated battery of a pregnant person. In the PSI, petitioner described his childhood as normal and stated he was raised by his mother. He reported that he was close with his mother and his siblings. He denied any family history of abuse, including physical, mental, sexual, alcohol, or substance abuse. Petitioner stated that he attended Du Sable High School but withdrew in 9th grade because he was no longer interested in attending school. Petitioner denied having any other educational goals or experiences. He reported that he had a nine-year-old daughter who lived with her mother in Joliet. Petitioner denied any past or present gang affiliation. He reported that he was in good health and denied using alcohol or illicit drugs. He further denied that he had been referred or treated for mental health issues.
In contrast, in the first PSI report, petitioner stated that his childhood was "good and bad," he fought teachers and vandalized school property to get attention, and his neighborhood was "bad." Petitioner reported attending Du Sable High School until he was arrested on a juvenile case, and that after his release he attended an alternative school for two months but stopped attending because he "stopped liking school." Petitioner reported being placed in a special education program for a learning or behavior disorder. Petitioner reported seeing a mental health professional in grammar school, being diagnosed with depression, and prescribed Lithium and Lexapro, which he stopped taking. Petitioner reported having a behavioral clinical exam and being found fit for trial. Petitioner also reported drinking 12 beers and sometimes up to "a fifth" of alcohol per day, and smoking marijuana every day; he stated he was under the influence of alcohol and marijuana at the time of his arrest. Petitioner reported that he supported his daily marijuana habit by selling drugs. He also reported prior membership in the Gangster Disciples.
¶ 10 On August 11, 2015, the trial court held a new sentencing hearing. In aggravation, the parties stipulated that Department of Corrections' records indicated that on October 28, 2014, petitioner punched his cell mate in the face and received 15 days in segregation as discipline. The State relied on Porter's victim impact statement from the first sentencing hearing, provided the transcript from the first sentencing hearing to the trial court, and asked the court to consider it. In his victim impact statement, Porter stated that he had suffered a harsh physical and emotional reaction to the crime. Porter and Katherine tried to put the ordeal behind them, but emotionally, Porter stated, he was "still suffering from several symptoms such as lack of sleep due to flashbacks, thinking about the event and just having a gun put to my head. And being forced to withdraw funds from an ATM location and seeing [Katherine] sexually assaulted." Mr. Porter stated that the crimes had disrupted his life and caused him to be depressed. He stated he was "always looking over his shoulder. And looking at people as if they want to harm me. Even when performing basic life experiences." He sought counseling but was "in need of much more."
¶ 11 The State then informed the court that petitioner had a prior juvenile delinquency adjudication for home invasion, but the PSI report indicated that petitioner's 2003 adjudication of delinquency was for home invasion and aggravated robbery, and probation was terminated unsatisfactory in 2008. The court was also made aware that petitioner had not obtained his GED in prison or "done anything to better himself" and asked the court to consider that. The State attorney emphasized the violent nature of the offenses and the trauma suffered by the victims. She asked the trial court to impose the same 27-year term for the aggravated criminal sexual assault.
¶ 12 In mitigation, defense counsel argued that petitioner was 17 years old when he committed the offenses in this case. Defense counsel also argued that defendant's sentence on remand should be less than that originally imposed. He argued that the 12-year sentence was sufficient, especially where petitioner received consecutive 8-year terms, concurrent to each other, for armed robbery and aggravated vehicular hijacking. Defense counsel requested that the 15-year enhancement not "just be reassessed or reassigned and found somewhere else."
¶ 13 In allocution, petitioner stated that he was 17 years old "at the time these events happened" and had matured since then. He stated that he loved his family and had a nine-year-old daughter he had not seen in "about five years." He asked the trial court to give him another chance.
¶ 14 The trial court stated that it had read the PSI report "a while back" and again that morning. The court noted that petitioner had a family, was raised primarily by his mother, and that it was a stable home with no reports of physical, mental, sexual or substance abuse, or criminality or gang affiliation in petitioner's home. The court noted that petitioner had a good relationship with his mother who was in court that day. The court commented that petitioner dropped out of high school in 9th grade and told the probation officer that he was no longer interested in attending school. The court noted that petitioner had spent years in prison but had not obtained his GED.
¶ 15 The trial court commented that the aggravation in this case was "quite serious," "rather momentous," and "very memorable." The court noted that petitioner had been adjudicated delinquent for home invasion and aggravated robbery in 2003, and had received probation, which was terminated unsatisfactory. The court stated that this case had "always been one that has stuck out in [its] mind" from the time it listened to the two complaining witnesses testify and heard petitioner testify. The court stated:
"And what has always stuck out in my mind and, I guess, what makes it so memorable, Mr. Lampkins, is the depravity demonstrated by your behavior to two other human beings and the callousness with which you attempted to sort of blame the male victim when you testified, coming up with what I found to be a completely perjurious false story that somehow your behavior was brought on because the male complaining witness owed you money for some sort of cannabis deal.
This was case where around 5:30 in the morning … Mr. Porter is just trying to do what a good citizen would try to do. He's trying to leave his house, get in his car, and go to work, working man. And 5:30 in the morning, you and a codefendant appeared to be lying in wait and on a hunt for some unsuspecting individual, someone that might have money or property that you could take from them because they were a good citizen that went to work. … You chose your victim based on likelihood of success and opportunity, the unlikely factor that the person could defend themselves because they get up and go to work at 5:30 in the morning.
And you chose to put a gun to that man's head. You threatened on innumerable occasions to kill him right then and there. You then, when you couldn't be satisfied with just taking the property that he had, including his vehicle, you forced him into his own home. All the while continuously threatening him, looking for more property, if there were some kind of cards to use at a cash station machine.
You then observed the lady in the house, … who told you … that she was a grandmother. She was in her 50s I recall. She was standing there because she heard the unusual voices and noises in her house after her - the person she was living with, the gentleman had left, which she thought was gone and already left for work, and there she was standing in her nightgown at the top of the stairs, seeing that now her home and his home had been invaded by you and your codefendant.
She sees the guns. She sees and hears the threats. She's ordered downstairs, and then she's taken back upstairs, and she is sexually assaulted in a way that no person should be involuntarily ever assaulted, no matter what their age, no matter what their status. But she was 50-some years of age. She was a grandmother. She told you as she begged that you would do what you did. And then for some pleasure known only to you, you chose to assault that lady with a candle, as I recall, and insert it into … her vagina … And even as you were committing the acts upon her, she was blessing you in a way, trying to get you to stop, telling you that Jesus loves you, and that he'll forgive you. Some words to that effect. But that didn't stop you, Mr. Lampkins. You chose to continue on and then you even belittled the woman with words about - I won't even repeat here, but just very foul vial [sic] commentary as if the woman somehow owed you something, and then threatened to have her commit oral sex on you.
Quite frankly, I think the woman was only saved from more horrendous acts on your part because of your codefendant who was interested in trying to
get it over with and get out of there. I think he had the good sense to realize that this thing had gone horribly, horribly wrong and was something that even he even somebody that was willing to be an armed robbery, willing to be a home invader probably was not prepared to witness.
You then took the gentleman after you got the numbers to their cash station accounts, their pins, and forced that gentleman with you to the cash station to get money, which you achieved all gunpoint, constantly threatening to kill the gentleman, always talking about blowing his brains out, having him kneel down and blow his brains out and kill him. I mean, just, it's hard to imagine for someone who has not experienced a gun to their head and the threats that you were doing, about what it does to a person.
Mr. [Porter] wrote a victim impact letter, which I read again now, he almost minimized it. That is a life-changing moment, is what you're thinking about because why would he believe that you weren't going to do it based on your behavior. I can't imagine why he would think for a moment that you wouldn't do it.
Eventually though, you, after getting the money and all the sudden seeing the police, you tried to flee the police officers, you managed to get rid of the weapon that you were carrying, the firearm that you were carrying, as I recall, but you were arrested by good police work.
You gave a statement. And then as I said earlier, when you testified, you tried to blame the complaining witness, the gentleman, that it was his fault because you were allegedly in a pot deal with him, and that's the reason you
were trying to collect money and you were mad, an absurd defense. You couldn't have sold a person to believe that story if the only people listening to it were in the lock up with you, Mr. Lampkins, but you attempted to pass it on to me to get me to believe it, but it shows that you've never accepted responsibility for what you've done.
When you were sentenced, Mr. Lampkins, I have to tell you, your sentence was structured in such a way so that you, quite frankly, didn't get any more time because the - and I remember this as if I did it yesterday - that what I always felt that the only mitigation in this particular case was that you didn't kill that woman and you didn't kill that man.
When that's the only mitigation you can really find in a case, that's not good for [petitioner] when he comes … asking the Court for mercy in the sentence here. Because of your age, I attempted to try to protect society for a reasonable period of time since you were not a first offender and to try to select a sentence that at least would give you, at some point in time, a chance to make amends and do something with your life, but after a very, very significant period of incarceration.
But, Mr. Lampkins, when I chose the sentence that I did in this particular case, it was based on the facts of the case, and it was designed in such a way to accomplish a particular number, which I felt was appropriate then and I feel is appropriate now.
I did not sentence you to greater periods of time on the home invasion, armed robbery vehicular hijacking counts because I knew of what I believed at
the time was going to have to be the sentence on the criminal sexual assault. But that case could very easily have carried with it exactly that same sentence because it is a Class X offense, and - but since I knew I have to give you consecutive time, and I knew I had to give you at least a 15 year period in there for the gun, sort of like a double enhancement thing since the gun is what makes it aggravated.
But in any event, I don't believe you're entitled to any reduction in your sentence, Mr. Lampkins. You haven't done anything even in the Illinois Department of Corrections to demonstrate that somehow you are a changed person. You've sat down there just doing your time, taking advantage of the court's system and you're the benefit of some decisions, which have reinterpreted the law correctly. But your case stands out in my mind to this day, and I don't believe you deserve any reduction. It was one of the more depraved cases I have ever seen, what you did to those two people, without remorse in any way and without acceptance of responsibility in any way, without anything."
¶ 16 The trial court sentenced petitioner on count 8, aggravated criminal sexual assault with a firearm, to 27 years' imprisonment. The trial court commented again that had it known how the law would be interpreted, it would have imposed greater sentences for the home invasion, armed robbery, and aggravated vehicular hijacking, so that the sentence would still be the same aggregate sentence. Petitioner filed a motion to reconsider sentence, which the trial court denied stating that this was one of the "most disgusting crimes and demonstration of man's inhumanity" it had seen. Petitioner appealed.
¶ 17 On appeal, petitioner argued that: 1) he was entitled to a new sentencing hearing under amended provisions to the juvenile sentencing code; 2) his resentencing attorney was ineffective for failing to present mitigating evidence related to his youth, mental health, family background, and social and educational history; and 3) his mittimus needed to be corrected to reflect the correct conviction. This court corrected petitioner's mittimus to reflect the correct conviction but affirmed the judgment of the trial court. See People v. Lampkins, 2017 IL App (1st) 152875-U.
¶ 18 On May 15, 2018, petitioner filed a pro se post-conviction petition arguing that counsel at the resentencing hearing was ineffective for failing to investigate evidence in the PSI prepared from the initial sentencing hearing i.e., the death of his father, the "bad" neighborhood he was raised in, being in a special education program, being seen by a mental health professional, being diagnosed with depression and taking psychiatric medication, excessive drinking of alcohol, selling drugs, and presenting this evidence in mitigation. According to petitioner, his counsel never visited him to discuss mitigation and he did not answer or return phone calls made by petitioner or his family. Petitioner also claimed that he told counsel about his mother and sister wanting to testify in mitigation and that they had certain papers they wanted to show counsel regarding petitioner's mental health history.
¶ 19 Petitioner included affidavits from his mother and sister stating that they were willing to testify but were never contacted by counsel. Petitioner's mother, Angela, averred that petitioner is the fifth of her eight children. Petitioner was a "troubled child" and had his first encounter with the juvenile justice system at age 11. He spent time in and out of juvenile detention and a behavioral center. He lost all his adult male relatives. He was diagnosed with a depressive disorder and prescribed medication.
¶ 20 Petitioner's sister Rosa also averred that she asked to testify but was not called. Rosa stated that she and petitioner were close as children. The deaths of their father, grandfather, and uncle negatively affected him.
¶ 21 Also attached to the petition was petitioner's individualized education program ("IEP") prepared on April 26, 2005, which indicated petitioner was eligible for special education services, due to a learning disability and an emotional disturbance. It was also noted that petitioner had difficulty following directions, processed information slowly, had a short auditory attention span, was easily distracted, lost focus often, spelled poorly, had trouble putting ideas on paper and understanding concepts, was disorganized and often misplaced things, had difficulty copying from the board, and was slow to switch from one task to another. He needed to be in a separate special-education classroom for the entire school week. He also required additional modifications, including extended time on tasks, testing on one concept at a time, simple directions with written examples, verbal directions in clearly stated steps, reduced load, shorter tasks, and repeated directions. It was also documented that petitioner had poor impulse control and anger management and that he tended to get frustrated easily. The IEP team attempted to assist petitioner through rewards, informal counseling, and discipline referrals. Those efforts had been inconsistent or resulted in temporary changes. The team believed illegal drugs, family problems, and negative neighborhood influences might be affecting petitioner's behavior.
¶ 22 On August 8, 2018, the circuit court summarily dismissed the petition in a written order finding it to be frivolous and patently without merit. It is from this order that petitioner now appeals.
¶ 23 ANALYSIS
¶ 24 On appeal, petitioner argues that the circuit court erred when it summarily dismissed his petition because he presented arguable claims that he received ineffective assistance of trial counsel when trial counsel failed to investigate and present mitigating evidence and failed to argue youth as a mitigating factor.
¶ 25 The Act provides a process whereby a prisoner can file a petition asserting that his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1 (West 2018); People v. Coleman, 183 Ill.2d 366, 378-79 (1998). A postconviction proceeding is not a substitute for a direct appeal, but instead, is a collateral attack upon the conviction that allows only limited review of constitutional claims that could not be raised on direct appeal. People v. Harris, 224 Ill.2d 115, 124 (2007). We review the circuit court's summary dismissal of petitioner's postconviction petition de novo. Coleman, 183 Ill.2d at 388-89. Under this standard, the reviewing court makes its own independent assessment of the allegations and is" 'free to substitute its own judgment for that of the circuit court to formulate the legally correct answer.' People v. Edwards, 197 Ill.2d 239, 247 (2001) (quoting Coleman, 183 Ill.2d at 388).
¶ 26 A postconviction petition may be summarily dismissed as frivolous or patently without merit if it has "no arguable basis either in law or in fact." People v. Hodges, 234 Ill.2d 1, 16 (2009). A petition lacks such an arguable basis when it is based on fanciful factual allegations or an indisputably meritless legal theory, such as a theory that is completely contradicted by the record. Id. At the summary dismissal stage, all well-pled allegations in the petition must be taken as true unless they are contradicted by the record. Coleman, 183 Ill.2d at 381-82.
¶ 27 Claims of ineffective assistance of counsel are evaluated under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Graham, 206 Ill.2d 465, 476 (2003). To support a claim of ineffective assistance of trial counsel, petitioner must demonstrate BOTH that (1) counsel's representation was deficient, and (2) as a result, he suffered prejudice that deprived him of a fair trial. Strickland, 466 U.S. at 687. Because the defendant must satisfy both prongs of this test, the failure to establish either is fatal to the claim. Id. at 697. .To establish prejudice, petitioner must show that there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Graham, 206 Ill.2d at 476. At the first stage of postconviction proceedings, allegations of ineffective assistance of counsel are judged by a lower pleading standard, and a petition raising such claims may not be summarily dismissed if it is arguable that counsel's performance fell below an objective standard of reasonableness, and it is arguable that petitioner was prejudiced. People v. Tate, 2012 IL 112214, ¶¶ 19-20.
¶ 28 A defendant cannot rely on speculation or conjecture to justify his claim of incompetent representation but must prove that the outcome of the proceeding probably would have been different if his attorney had not been ineffective. Strickland, 466 U.S. at 694. The reviewing court is obligated to indulge in a strong presumption that defendant's attorney was in fact competent, that counsel exercised sound professional judgment, and that the attorney's representation fell within the broad parameters of acceptable professional assistance. Id. at 689-90. We are also mindful that" 'the failure to offer evidence in mitigation does not, in and of itself, demonstrate incompetence.' [Citations.]" People v. Williams, 147 Ill.2d 173, 257 (1991) (quoting People v. Shum, 117 Ill.2d 317, 370 (1987).
¶ 29 Petitioner argues that he wanted counsel on resentencing to introduce his school records showing that CPS determined him to have an emotional disturbance, a learning disability, and poor impulse control. Petitioner also averred that he was a poor student in that he was significantly behind where he should have been for his age. He also wanted counsel to present mitigation regarding his mental health issues and his family background.
¶ 30 Taking defendant's allegations as true as we are required to do at this stage, we find that it is not arguable that petitioner suffered prejudice as a result of counsel's failure to investigate and present mitigating evidence. Resentencing counsel advocated for a lesser sentence for petitioner on resentencing given that defendant was a minor when he committed the offense in this case. However, the court indicated that it was very familiar with the facts of the case stating that this case "always stuck out" in the court's mind. The court remarked that this "was one of the more depraved cases I have ever seen, what you did to those two people, without remorse in any way and without acceptance of responsibility in any way, without anything."
¶ 31 Although a new PSI was ordered on resentencing, the resentencing court also had the benefit of the original PSI. When acknowledging petitioner's young age at the time of the offenses, the court stated that the only mitigation it found was that petitioner did not kill the victims. Any evidence or testimony that would have come from petitioner's mother or sister regarding defendant's social or emotional history, or from petitioner's IEP, would have been cumulative to the information contained in the two PSI reports that were available to the court.
¶ 32 Given the totality of the mitigating and aggravating evidence before the court, we cannot say petitioner has alleged a sufficient arguable claim of prejudice by counsel's alleged failures to investigate and present mitigating evidence and argue youth as a mitigating factor. As we have determined that petitioner has not established an arguable claim of prejudice, we need not determine whether counsel's performance was deficient. People v. Graham, 206 Ill.2d 465, 476 (2003); Strickland, 466 U.S. at 697. Therefore, we find that the court properly summarily dismissed petitioner's pro se petition.
¶ 33 CONCLUSION
¶ 34 Considering the foregoing, we affirm the circuit court's dismissal of petitioner's pro se postconviction petition.
¶ 35 Affirmed.