Opinion
4-21-0411
09-08-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS MYLES, Defendant-Appellant.
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 Circuit Court of Livingston County No. 17CF172 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Zenoff concurred in the judgment.
ORDER
STEIGMANN JUSTICE.
¶ 1 Held: The appellate court grants appellate counsel's motion to withdraw and affirms the trial court's dismissal of defendant's postconviction petition at the first stage of proceedings.
¶ 2 This case comes to us on the motion of the Office of the State Appellate Defender (OSAD) to withdraw as counsel on the ground that no meritorious issue can be raised on this appeal from the trial court's dismissal of the postconviction petition at the first stage of proceedings. We grant OSAD's motion and affirm the trial court's judgment.
¶ 3 I. BACKGROUND
¶ 4 In May 2017, the State charged defendant, Dennis Myles, with three counts of aggravated criminal sexual abuse based on alleged acts of sexual conduct with the minor victims Em. C. and El. C. In March 2018, the trial court found defendant guilty following a bench trial. In September 2018, the court sentenced defendant to 36 months' probation with 180 days in jail as a condition thereof.
¶ 5 On direct appeal, defendant argued (1) he received ineffective assistance of counsel where counsel stipulated to the admission of recordings of the victims' statements made at the Child Advocacy Center (CAC) and (2) his constitutional right to be present at all critical stages of his trial was violated when the trial court privately viewed the recordings. People v. Myles, 2020 IL App (4th) 180652, ¶ 2, 184 N.E.3d 1037. This court affirmed, concluding (1) defendant failed to demonstrate defense counsel's allegedly ineffective assistance prejudiced him because the outcome of the trial would not have been different if the recordings had not been admitted into evidence and (2) his constitutional right to be present was not violated. Id. ¶¶ 54, 65.
¶ 6 In April 2021, defendant filed a postconviction petition. In an affidavit attached to the postconviction petition, defendant alleged he received ineffective assistance of counsel because defense counsel (1) did not defend him during the preliminary hearing; (2) did not allow his wife, the children's primary caregiver and grandmother, to testify; (3) failed to "pursue Grandfather or Dad;" (4) failed to call other witnesses who observed the children in his presence; (5) "did not do any rebuttals;" (6) did not use defendant's interview to prove his character or competency; and (7) failed to call the CAC interviewer as a witness. The affidavit further alleged appellate counsel failed to "address things [defendant] felt were relevant in the case." Specifically, defendant said appellate counsel addressed some but not all "Discrepancies of [Em. C.]." Defendant also raised claims regarding alleged discrepancies in the evidence, the State's closing argument, conversations defendant had with trial counsel, and defendant's interview with law enforcement. Defendant requested the trial court re-evaluate its decision. Defendant attached various trial and discovery documents, excerpts of the trial transcripts, and a recording of his interview with law enforcement.
¶ 7 In June 2021, the trial court entered an order dismissing defendant's postconviction petition at the first stage. The court noted the postconviction petition was difficult to follow due to the outline format and sentence fragments. The court noted that defendant pointed out what he viewed as errors and inconsistencies in the trial record, alleged ineffective assistance of trial counsel, and expressed dissatisfaction with appellate counsel. However, defendant failed to set forth facts or argument regarding appellate counsel.
¶ 8 The trial court also noted defendant failed to support the postconviction petition with affidavits, records, or other evidence. Instead, the only constitutional violation defendant raised was ineffective assistance of counsel, which was procedurally defaulted because the claims were or could have been raised on direct appeal.
¶ 9 The trial court further found that, to the extent defendant alleged ineffective assistance of counsel for failing to call certain witnesses, defendant failed to support the petition with affidavits from potential witnesses. Accordingly, the court found defendant's petition failed to set forth the gist of a constitutional claim and the petition was frivolous and patently without merit.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 OSAD seeks to withdraw as counsel on appeal, asserting it can make no meritorious argument that the trial court improperly dismissed defendant's postconviction petition at the first stage or failed to comply with the time period for first stage dismissal.
¶ 13 A. Postconviction Proceedings
¶ 14 The Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8 (West 2016)) provides a collateral means for a defendant to challenge a conviction or sentence for a violation of a federal or state constitutional right. People v. Jones, 211 Ill.2d 140, 143, 809 N.E.2d 1233, 1236 (2004). At the first stage of postconviction proceedings, the trial court must determine, taking the allegations as true, whether the defendant's petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). A postconviction petition may be summarily dismissed as frivolous or patently without merit "only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill.2d 1, 12, 912 N.E.2d 1204, 1209 (2009). At this stage of proceedings, the trial court acts in an administrative capacity and screens out postconviction petitions that lack legal substance or are obviously without merit. People v. Tate, 2012 IL 112214, ¶ 9, 980 N.E.2d 1100. The threshold for surviving first-stage proceedings is low because defendants with limited legal knowledge or training draft most postconviction petitions. Id. "To survive dismissal at this initial stage, the postconviction petition 'need only present the gist of a constitutional claim,' which is 'a low threshold' that requires the petition to contain only a limited amount of detail." People v. Harris, 366 Ill.App.3d 1161, 1166-67, 853 N.E.2d 912, 917 (2006) (quoting People v. Gaultney, 174 Ill.2d 410, 418, 675 N.E.2d 102, 106 (1996)). We review de novo the summary dismissal of a postconviction petition. Id. at 1167.
¶ 15 B. Claims of Ineffective Assistance of Counsel
¶ 16 Claims of ineffective assistance of counsel are governed by the framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767. The deficient-performance prong requires a defendant to show counsel's performance was objectively unreasonable under prevailing professional norms. People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366. Under the prejudice prong, defendant must show a reasonable probability that but for counsel's deficient performance the outcome of the proceeding would have been different. Id. "A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Id. A defendant must satisfy both prongs to prevail on a claim of ineffective assistance of counsel. Id.
¶ 17 C. This Case
¶ 18 OSAD asserts defendant's claims of ineffective assistance of counsel lack merit because each claim lacks arguable prejudice. We agree. Defendant's postconviction petition alleged ineffective assistance of counsel because counsel failed to (1) argue that defendant was arrested without probable cause, (2) call various witnesses, and (3) make various arguments. The petition also included a claim of ineffective assistance of appellate counsel because appellate counsel failed to address all of the discrepancies in Em. C.'s testimony.
¶ 19 The allegation that defense counsel failed to argue defendant was arrested without probable cause is without merit. First, a defense counsel's failure to file a motion to suppress generally does not establish ineffective assistance when that motion would be futile. People v. Pacheco, 281 Ill.App.3d 179, 183, 666 N.E.2d 370, 373 (1996). The filing of such a motion is a matter of trial strategy, and counsel's decision will be accorded deference. Id. Moreover, "the only remedy for an illegal arrest is the exclusion of evidence resulting from that arrest." Id. at 184. Defendant's postconviction petition fails to identify any evidence that might have been suppressed had defense counsel argued defendant was arrested without probable cause.
¶ 20 Defendant's claims of ineffective assistance of counsel based on his attorney's failure to call various witnesses are also meritless. The decision whether to call particular witnesses is a matter of trial strategy and is afforded great deference. People v. Flores, 128 Ill.2d 66, 85-86, 538 N.E.2d 481, 488 (1989). Defendant also failed to demonstrate that additional witnesses would have changed the outcome of the trial. People v. Jones, 323 Ill.App.3d 451, 458, 752 N.E.2d 511, 516 (2001). Defendant's postconviction petition did not detail what these additional witnesses would testify to or how that testimony would have changed the outcome of the trial. Moreover, defendant failed to support his postconviction petition with affidavits from these additional witnesses. People v. Enis, 194 Ill.2d 361, 380, 743 N.E.2d 1, 13 (2000) ("In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.").
¶ 21 Defendant's claims of ineffective assistance based on counsel's failure to make certain arguments and alleged discrepancies in the evidence are also without merit. As is true of all defendant's claims of ineffective assistance of trial counsel, these claims could have been raised on direct appeal but were not. Accordingly, the claims are forfeited. Id. at 378.
¶ 22 Defendant's claim of ineffective assistance of appellate counsel is also without merit. Defendant does not argue appellate counsel failed to raise his claims of ineffective assistance of trial counsel. Instead, defendant argues appellate counsel failed to address all of the discrepancies in Em. C.'s testimony. "A petitioner who contends that appellate counsel rendered ineffective assistance of counsel must show that the failure to raise an issue on direct appeal was objectively unreasonable and that the decision prejudiced petitioner." People v. Childress, 191 Ill.2d 168, 175, 730 N.E.2d 32, 36 (2000). Defendant failed to demonstrate the outcome of his direct appeal would have been different had appellate counsel raised all the discrepancies in Em. C.'s testimony.
¶ 23 On direct appeal, this court noted the trial court made explicit credibility findings and found Em. C. to be credible. Myles, 2020 IL App (4th) 180652, ¶ 48. This court concluded that even if defense counsel had successfully challenged the admission of the recordings of the victims' statements, the outcome of defendant's trial would not have been different where the other evidence was sufficient to convict. Id. ¶ 47. It is the province of the finder of fact to make credibility determinations and a finding of guilt will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant's guilt. People v. Hampton, 44 Ill.2d 41, 45, 253 N.E.2d 385, 387 (1969). Defendant's postconviction petition fails to demonstrate that any additional arguments by appellate counsel would have changed the outcome of his direct appeal.
¶ 24 Finally, to the extent that defendant's postconviction petition requested the trial court to reevaluate its decision, we note that a challenge to the sufficiency of the evidence is not proper in postconviction proceedings. People v. Franzen, 251 Ill.App.3d 813, 822, 622 N.E.2d 877, 886 (1993). Defendant did not allege appellate counsel was ineffective for failing to raise a sufficiency claim on direct appeal. Moreover, as discussed above, it is the function of the trier of fact to make credibility determinations and resolve conflicts in the evidence; the reviewing court will not reverse a conviction because the evidence is contradictory or the defendant claims a witness was not credible. People v. Siguenza-Brito, 235 Ill.2d 213, 228, 920 N.E.2d 233, 242-43 (2009). Accordingly, this claim is meritless.
¶ 25 D. Timely Dismissal
¶ 26 OSAD further asserts no meritorious argument can be made that the trial court failed to comply with the statutory time period for first stage dismissal. Section 122-2.1(a) of the Postconviction Act requires the trial court to examine a postconviction petition within 90 days after the filing and docketing of the petition. 725 ILCS 5/122-2.1(a) (West 2020). If a pro se petition is not dismissed within 90 days, the court dockets the petition for further consideration and appoints counsel to represent the defendant. Id. § 122-4 (West 2020).
¶ 27 Here, defendant filed his postconviction petition on April 26, 2021. The trial court dismissed the petition on June 21, 2021. The dismissal was well within the 90-day time period for first stage dismissal under the Postconviction Act. Accordingly, no meritorious argument can be made that the trial court failed to comply with the Postconviction Act.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we grant OSAD's motion to withdraw as appellate counsel and affirm the trial court's judgment.
¶ 30 Affirmed.