THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON L. HILLS, Defendant-Appellant.
NO. 4-22-0141
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
January 9, 2023
2023 IL App (4th) 220141-U
Appeal from the Circuit Court of Adams County No. 18CF450 Honorable John C. Wooleyhan, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Turner and Doherty concurred in the judgment.
ORDER
Held: The appellate court reversed and remanded, holding the trial court erred in summarily dismissing defendant‘s postconviction petition because defendant stated the gist of a claim that his trial counsel was ineffective for failing to investigate the State‘s expert‘s opinion that the victim suffered from post-traumatic stress disorder.
¶ 2 Defendant, Jason L. Hills, appeals the summary dismissal of his postconviction petition at the first stage of postconviction proceedings. Defendant contends the trial court erred in finding that the five claims of ineffective assistance of trial counsel raised in his petition should have been raised on direct appeal and were consequently forfeited. Defendant further argues he stated the gist of a constitutional claim of ineffective assistance of counsel with respect to all five claims asserted in the petition. We reverse and remand.
¶ 3 I. BACKGROUND
¶ 5 At trial, J.A.W. testified that on the night of the incident, she allowed defendant to come to her residence to use her shower. She had socialized with defendant in the past. J.A.W. told defendant she was having sciatic nerve problems, and he brought her two pills, which he indicated were ibuprofen and tramadol. She took both pills. J.A.W. testified she also took three “little sip[s]” of whiskey defendant had brought. J.A.W. and defendant sat on the couch and talked for a while, and J.A.W. became tired. J.A.W. looked at her phone and saw that it was 2:11 a.m. J.A.W. did not remember anything else until her son woke her up later that morning. When J.A.W. woke up, she was lying on her back, naked, and covered by a robe. She tried to stand, but she was dizzy, disoriented, and found it difficult to walk. She observed her front door was unlocked. She then went into the bathroom and observed that it was in disarray, the floor was wet with water, and there were towels and clothes that did not belong to her. Later that day, J.A.W. went to the hospital and underwent a sexual assault evidence collection evaluation. She noticed at that time her legs and arms were bruised “pretty badly.” She did not have these bruises prior to defendant‘s visit and did not know how she got them. Later, J.A.W. remembered defendant dragging her from the bathroom to the couch on the night of the incident.
¶ 6 The nurse who performed J.A.W.‘s sexual assault examination testified J.A.W. told her that she consumed three shots of whiskey, an ibuprofen pill, and a tramadol tablet given to her by a friend on the evening of the incident. The nurse testified tramadol was a pain medication that should not be taken with alcohol because alcohol “heighten[ed] the effects” of
¶ 7 The State presented forensic evidence showing the vaginal and anal swabs collected during J.A.W.‘s examination contained deoxyribonucleic acid (DNA) for which defendant could not be excluded as a contributor. With regard to the most complete male DNA profile, the likelihood that someone other than defendant was the contributor was 1 in 470 sextillion.
¶ 8 Malinda Vogel, a licensed clinical professional counselor, testified as an expert in the field of clinical psychology with training in the areas of trauma and post-traumatic stress disorder (PTSD). Vogel testified that the state‘s attorney‘s office referred J.A.W. to her for a psychological evaluation approximately two years after the incident occurred. During the evaluation, J.A.W. reported she had been raped. J.A.W. discussed the details of the sexual assault and indicated she did not remember some of the incident. According to Vogel, J.A.W.‘s description of the sexual assault qualified as a traumatic event for purposes of a PTSD diagnosis. J.A.W. also described having the following symptoms of PTSD: intrusive experiences due to the sexual assault, avoiding things that reminded her of the sexual assault, negative changes in her mood, and changes in her level of physiological arousal. During her testimony, Vogel gave specific examples of each of these symptoms. Based on her evaluation, Vogel found the sexual assault had a severe impact on J.A.W.‘s life. After considering all this information, Vogel concluded that J.A.W. suffered from PTSD. Vogel‘s evaluation report was admitted into evidence.
¶ 9 On cross-examination, Vogel stated she met with J.A.W. twice for one hour each time in conducting her evaluation. J.A.W. was her only source of information. Some of her
¶ 10 Defendant testified that J.A.W. invited him to her house to use her shower on the night of the incident. She also asked him to bring her some pills for her back pain, and defendant brought her two ibuprofen tablets. Defendant and J.A.W. sat in her living room and talked for several hours. They both had two or three shots of whiskey. J.A.W. did not seem intoxicated. Defendant and J.A.W. then engaged in consensual sexual activities in both the shower and J.A.W.‘s bedroom. Afterward, J.A.W. walked back to the couch and draped defendant‘s jacket over her. Defendant noticed the sun was starting to rise, and he told J.A.W. she needed to get up. They had a brief conversation, but J.A.W. did not get up. Defendant took his jacket and draped J.A.W.‘s robe over her. He then left.
¶ 11 The jury found defendant guilty of both counts, and the trial court imposed consecutive sentences of five years’ imprisonment on each count.
¶ 12 On direct appeal, defendant argued the State failed to prove him guilty beyond a reasonable doubt and the trial court erred by giving Illinois Pattern Jury Instruction, Criminal, No. 3.14 (approved Oct. 17, 2014). People v. Hills, 2021 IL App (4th) 200220-U, ¶ 2. We affirmed the judgment of the trial court. Id. ¶ 49.
¶ 14 In the petition, defendant acknowledged Vogel‘s opinion testimony that J.A.W. suffered from PTSD was admissible under section 115-7.2 of the Code of Criminal Procedure of 1963 (
¶ 15 Defendant attached to his postconviction petition an opinion letter prepared by forensic psychologist Tetyana Kostyshyna. In the letter, Kostyshyna indicated defendant‘s postconviction counsel requested that she review a report of J.A.W.‘s examination by Vogel as well as Vogel‘s trial testimony to examine the appropriateness of Vogel‘s methodology. Kostyshyna stated she reviewed these documents and found the following deficiencies in Vogel‘s evaluation: (1) Vogel‘s evaluation lacked objectivity because it did not include any tools to assist Vogel in “controlling her bias“; (2) Vogel failed to use objective psychological tests or structured clinical interviews, which assist in ensuring accuracy by measuring exaggeration of symptoms, minimization of symptoms, and inconsistent reporting; (3) Vogel lacked proper credentials for interpreting psychological tests; (4) J.A.W.‘s verbatim examples of specific trauma-related symptoms were missing from the report; and (5) Vogel relied solely upon a partial clinical interview in making her diagnosis when multiple sources of information—e.g., structured clinical interviews, mental status examinations, psychological tests, and validity measures—are required to reach a “confident clinical opinion.”
¶ 16 In addition, defendant attached to his petition a printout from healthline.com concerning the side effects and uses of tramadol. The printout stated that common side effects of tramadol included dizziness, headache, drowsiness, nausea and vomiting, constipation, lack of energy, sweating, dry mouth, and itching. The printout also stated that the use of alcoholic beverages can increase the risk of certain side effects from tramadol, including slowed breathing, decreased heart rate, decreased blood pressure, and confusion.
¶ 18 II. ANALYSIS
¶ 19 On appeal, defendant argues the trial court erred in summarily dismissing his postconviction petition because the court erroneously found defendant could have raised his claims of ineffective assistance of counsel on direct appeal. Defendant further contends he stated the gist of a constitutional claim with respect to all five of his claims of ineffective assistance of counsel raised in the petition.
¶ 20 The Post-Conviction Hearing Act (
¶ 21 In the instant case, the postconviction petition was dismissed at the first stage of postconviction proceedings. At this stage, the trial court may dismiss the petition as frivolous or
¶ 22 A trial court may summarily dismiss a postconviction petition at the first stage on the basis that the issues in the petition are procedurally defaulted because they could have been raised on direct appeal but were not. People v. Harris, 224 Ill. 2d 115, 137 (2007). A defendant must generally raise a claim of ineffective assistance of counsel on direct review or risk forfeiting the claim. People v. Veach, 2017 IL 120649, ¶ 47. However, a defendant is not precluded from raising an issue on collateral review that depended upon facts not found in the record. Id. Accordingly, claims of ineffective assistance of counsel are better suited to collateral proceedings “when the record is incomplete or inadequate for resolving the claim.” Id. ¶ 46.
¶ 23 Here, defendant‘s postconviction petition met the low threshold of stating the gist of a claim that his trial counsel was ineffective for failing to investigate Vogel‘s opinion that J.A.W. suffered from PTSD by consulting with a forensic psychologist. In the petition, defendant asserted that if his counsel had consulted with a forensic psychologist, he would have discovered five specified problems with Vogel‘s evaluation and report. Defendant also alleged that counsel
¶ 24 Based on the foregoing allegations in the petition and Kostyshyna‘s letter, we find trial counsel‘s alleged failure to consult with a forensic psychologist concerning Vogel‘s evaluation arguably constituted performance falling below an objective standard of reasonableness. It is also arguable that if defendant had been able to challenge the validity of Vogel‘s PTSD diagnosis by presenting evidence of the deficiencies in her examination or through a stronger cross-examination, J.A.W. would have been viewed by the jury as a less credible witness and the result of the proceeding would have been different.
¶ 25 In reaching our holding, we reject the position of both the trial court and the State on appeal that defendant‘s ineffective assistance claim could have been raised on direct appeal. The claim was based on information not contained in the trial record—namely, Kostyshyna‘s opinion letter, which was procured by postconviction counsel after the trial proceedings had concluded. Without this letter, defendant would not have been able to support his claim that he was arguably prejudiced by his trial counsel‘s failure to consult with a forensic psychologist concerning Vogel‘s report because there would have been no basis in the record for concluding that there were any deficiencies in her evaluation. We find the trial record would have been inadequate for resolving this claim of ineffective assistance of counsel on direct appeal, and thus the claim was properly raised in a postconviction petition. See Veach, 2017 IL 120649, ¶ 47.
¶ 26 Because we have found that defendant stated the gist of a constitutional claim as to one of the claims in the petition, we need not consider whether the other claims in the petition
III. CONCLUSION
¶ 27 ¶ 28 For the reasons stated, we reverse the summary dismissal of defendant‘s postconviction petition and remand the matter for second-stage postconviction proceedings.
¶ 29 Reversed and remanded.