People v. Upshaw
2017 Ill. App. LEXIS 671
| Ill. App. Ct. | 2017Background
- Upshaw was convicted of two counts of attempted first‑degree murder for a 1996 shooting of two police officers; the conviction rested primarily on a signed inculpatory statement he gave after ~28½ hours in custody. Trial evidence contained no eyewitness ID of Upshaw, no weapon, and limited corroboration.
- Upshaw’s direct appeal was denied; his postconviction petition was mailed ~8 months late. He alleged prison lockdowns and loss of his legal materials prevented timely filing.
- Appointed counsel later filed a supplemental postconviction petition raising (a) ineffective assistance of trial counsel for failing to investigate/alibi witness Tyrone White; (b) ineffective assistance of appellate counsel for failing to raise (i) an Apprendi challenge to an extended‑term 50‑year sentence and (ii) other evidentiary issues; and (c) newly discovered evidence of pattern coercion by detectives.
- The circuit court dismissed at the second stage as untimely and on the merits; Upshaw appealed.
- The appellate court accepted Upshaw’s lockdown/lost‑materials allegations as sufficiently specific to make a substantial showing he was not culpably negligent and reviewed the merits de novo.
Issues
| Issue | Plaintiff's Argument (Upshaw) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Timeliness / culpable negligence for late postconviction filing | Lockdowns and lost prison law‑library records prevented timely filing; began work immediately after PLA denial | Alleged lockdowns incomplete or insufficient; petitioner still negligent | Court: Allegations supported by records and affidavits; substantial showing of no culpable negligence — petition not time‑barred |
| Ineffective assistance of trial counsel — failure to investigate alibi (Tyrone White) | Upshaw gave counsel White’s contact; White’s affidavit places Upshaw at White’s home at shooting time; counsel never contacted/called him | State: counsel pursued a coercion defense; alibi might be inconsistent or unreliable | Court: Taking affidavits as true, counsel’s failure to investigate was deficient and prejudicial given thin State case (statement was primary evidence); remand for evidentiary hearing |
| Ineffective assistance of appellate counsel — failure to raise Apprendi challenge to extended term (50 yrs) | Extended‑term finding ("exceptionally brutal/wanton cruelty") should have been submitted to jury under Apprendi; no facts show brutality here | State: plain‑error standard applies because no trial objection; evidence supports sentence | Court: Appellate counsel unreasonably failed to raise Apprendi; the record lacked facts supporting an extended‑term finding — remand for hearing |
| Newly discovered evidence / pattern of detective coercion | Affidavits, news article, and Torture Inquiry records show detectives’ history of coercion; would have changed suppression ruling | State: Evidence concerns other cases and different conduct; not conclusively linked to Upshaw; res judicata applies | Held: Evidence not ‘‘strikingly similar’’ or conclusive to probably change result; claim properly dismissed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Apprendi v. New Jersey, 530 U.S. 466 (any fact increasing penalty beyond statutory maximum must be found by jury)
- People v. Nitz, 219 Ill. 2d 400 (extended‑term sentencing and Apprendi analysis)
- People v. Pendleton, 223 Ill. 2d 458 (second‑stage postconviction: accept well‑pleaded facts not rebutted by record)
- People v. Hodges, 234 Ill. 2d 1 (postconviction first‑stage dismissal standard)
- People v. Tate, 305 Ill. App. 3d 607 (ineffective assistance for failure to call alibi; remand when no strategic reason shown)
- People v. Makiel, 358 Ill. App. 3d 102 (failure to call witness can warrant evidentiary hearing when testimony would contradict key State evidence)
- People v. Gerow, 388 Ill. App. 3d 524 (second‑stage procedure; State may move to dismiss)
- People v. Wilburn, 338 Ill. App. 3d 1075 (short filing delay weighed against culpable negligence)