2020 IL App (2d) 190027
Ill. App. Ct.2020Background
- Early morning 2009 911 call reported a fight possibly involving guns; officers found Phillip Shipp and Denise Dickens walking on Miami Avenue amid significant snow/ice.
- Officer Zalaznik stopped them, asked for ID, ordered removal of hands from pockets, sought to pat down Shipp; Shipp fled, slipped, was arrested, and a loaded gun, cocaine, cannabis, and cash were recovered.
- The trial court denied Shipp’s motion to suppress; it later found Shipp was not committing a crime while walking but relied on his flight/resisting to justify the search.
- Shipp entered a stipulated bench trial (preserving the suppression issue), was convicted, and did not directly appeal the suppression ruling; he filed a postconviction petition claiming appellate counsel was ineffective for not challenging the suppression denial.
- This court previously reversed summary dismissal of that petition (finding an arguable ineffective-assistance claim) and remanded; on remand the State argued, for the first time in postconviction proceedings, that Shipp had violated a pedestrian statute by walking in the street.
- The postconviction court granted relief; on appeal this court affirmed the grant, holding (1) the State was not precluded from raising the sidewalk/streets issue on remand but (2) the record did not support that sidewalk use was practicable and (3) Shipp made a substantial showing of appellate counsel ineffectiveness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the postconviction court erred by granting relief without independently finding Shipp violated the pedestrian statute | Postconviction court should have considered that Shipp walking in the street provided probable cause and made appellate counsel reasonable | This court’s remand mandated grant or the State forfeited the sidewalk argument | Court: Remand did not mandate grant; State not precluded from raising issue, but record does not support a sidewalk-use violation; grant affirmed on other grounds |
| Forfeiture / law of the case: was the State barred from arguing sidewalk violation on remand? | State initially prevailed at suppression and may raise alternate bases on remand; not forfeited here | Shipp: State acquiesced or law of the case after prior proceedings | Court: Not forfeited; law-of-the-case did not apply because earlier ruling was at first-stage review and further factual development was appropriate |
| Whether walking in the street violated 625 ILCS 5/11-1007 given snow/ice (practicability of sidewalk) | Shipp was walking in the street and thus violated the statute; arrest and search were lawful incident to arrest | Sidewalks were blocked by plowed snow; use was impracticable, so no statutory violation | Court: Record lacks proof sidewalks were practicable; video showed snow blocking access; State failed to prove probable cause based on pedestrian statute |
| Whether appellate counsel was ineffective for not raising suppression on direct appeal | Counsel acted reasonably given potential alternate bases for upholding suppression denial | Counsel was ineffective and defendant was prejudiced because a successful suppression challenge likely would have changed the outcome | Court: Shipp made a substantial showing of ineffectiveness; appellate counsel arguably ineffective for not raising the suppression issue; grant affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard)
- People v. Pendleton, 223 Ill. 2d 458 (2006) (overview of three-stage postconviction process)
- People v. Hodges, 234 Ill. 2d 1 (2009) (third-stage evidentiary-hearing standards and review)
- People v. Janis, 139 Ill. 2d 300 (1990) (State prevailing on suppression may present contrary evidence on remand)
- People v. Williams, 138 Ill. 2d 377 (1990) (State may forfeit suppression issues by failing to timely seek reconsideration or appeal)
- People v. Linley, 388 Ill. App. 3d 747 (2009) (officers lacked particularized facts to believe defendant was armed absent reliable shots-fired report)
- People v. Caballero, 206 Ill. 2d 65 (2002) (standards for reviewing mixed questions of law and fact on postconviction review)