People v. Upshaw
89 N.E.3d 1049
Ill. App. Ct.2018Background
- Micah Upshaw was convicted of two counts of attempted first-degree murder for a 1996 shooting of two police officers; he was sentenced to consecutive extended terms totaling 75 years.
- After direct appeal and denial of leave to appeal (Dec. 5, 2001), Upshaw filed a pro se postconviction petition on Feb. 14, 2003; appointed counsel later filed a supplemental petition in 2010.
- Supplemental petition raised: ineffective assistance of trial counsel for failing to investigate/alibi witness Tyrone White; ineffective assistance of appellate counsel (failure to raise Apprendi challenge to extended-term sentence, failure to challenge exclusion of third-party evidence re: Marvin Williams, and failure to challenge admission of certain out-of-court statements); and newly discovered evidence of coercive interrogation by detectives.
- The circuit court dismissed the petition at the second stage as untimely and on the merits; Upshaw appealed.
- The appellate court found Upshaw made a substantial showing he was not culpably negligent in filing late (lockdowns and lost law-library materials) and preserved claims warranting an evidentiary hearing on ineffective assistance of trial counsel (failure to investigate alibi) and ineffective assistance of appellate counsel (failure to raise Apprendi challenge to extended-term sentence).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Upshaw) | Held |
|---|---|---|---|
| Timeliness of postconviction petition | Petition untimely; dismissal appropriate | Lockdowns and lost legal materials prevented timely filing; no culpable negligence | Reversed: Upshaw made substantial showing of no culpable negligence; petition not time-barred |
| Trial counsel ineffective for not investigating/calling alibi witness (Tyrone White) | Counsel’s strategy reasonable; no prejudice shown | Upshaw provided affidavits that counsel had White’s contact and failed to investigate; White’s testimony could have undercut sole inculpatory confession | Vacated dismissal; substantial showing made; remand for evidentiary hearing |
| Appellate counsel ineffective for failing to raise Apprendi challenge to extended-term sentence | Failure to object at trial invokes plain-error standard; evidence supported extended term | Counsel should have raised that extended-term finding needed jury under Apprendi; evidence did not clearly support ‘‘exceptionally brutal or heinous’’ finding | Vacated dismissal on this claim; substantial showing of prejudice; remand for hearing |
| Appellate counsel failure to raise exclusion of third‑party evidence and hearsay identifications | Trial court acted within discretion; statements admissible to show course of investigation | Exclusion of Marvin Williams evidence and admission of hearsay identifications were erroneous and prejudicial | Dismissal affirmed as to these claims; no substantial showing of ineffective assistance |
| Newly discovered evidence of detectives’ coercive practices | Evidence of pattern does not conclusively link to Upshaw or change result on retrial | New reports, affidavits, and commission records show detectives’ history of abuse that would affect suppression ruling | Dismissal affirmed as to this claim; new evidence not sufficiently conclusive to warrant retrial |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury and proven beyond a reasonable doubt)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance of counsel)
- People v. Nitz, 219 Ill. 2d 400 (2006) (extended‑term sentencing based on judge‑found brutality inconsistent with Apprendi)
- People v. Tate, 305 Ill. App. 3d 607 (1999) (failure to call alibi witnesses may show ineffective assistance when no strategic reason is shown)
- People v. Makiel, 358 Ill. App. 3d 102 (2005) (failure to contact or call witness that would contradict key testimony can warrant remand for hearing)
- Pendleton v. [State], 223 Ill. 2d 458 (2006) (at second stage, well‑pleaded facts not rebutted by record are taken as true)