Case Information
No. 2-16-0162
Opinion filed June 13, 2019 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-562
)
JUSTIN KNAPP, ) Honorable
) Sharon L. Prather, Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion.
Justice McLaren dissented, with opinion.
OPINION Defendant Justin Knapp was convicted of attempted first degree murder (720 ILCS
5/8-4(a), 5/9-1(a)(1) (West 2008)), two counts of aggravated battery (720 ILCS 5/12-4(b)(1), (b)(8) (West 2008)) and mob action (720 ILCS 5/25-1(a)(1) (West 2008)). The trial court sentenced defendant to 16 years in the Illinois Department of Corrections on the attempted first degree murder. This court affirmed defendant’s conviction in People v. Knapp , No. 2-09-0089 (2010) (unpublished summary order under Illinois Supreme Court Rule 23(c)). On November 9, 2015, defendant filed a pro se petition pursuant to the Post Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2014)). The trial court summarily dismissed defendant’s petition. Defendant appeals from the summary dismissal. Because the record positively rebuts defendant’s claim of ineffective assistance of trial counsel we affirm the summary dismissal and assess statutory State’s Attorney fees.
¶ 2 I. BACKGROUND
¶ 3 Our decision in Knapp I was a summary order. A more detailed background is necessary to dispose of this appeal. On July 3, 2008, defendant and his co-defendant, Luis Rodriguez, were indicted for attempt first-degree murder, two counts of aggravated battery and mob action in connection with the June 10, 2008, stabbing of Jorge Avitia. The State’s theory was that the defendants were members of the Nortenos 14 street gang and that the victim, Jorge Avitia, was affiliated with a rival gang, the Latin Kings. Prior to trial the State filed a motion in limine to introduce gang evidence on the issue of motive for the stabbing. The trial court deferred ruling on the motion. The State requested that two of its witnesses, Jorge Avitia and Andres Pedroza, be granted immunity regarding underage drinking. Defense counsel filed a motion to suppress a video-recorded statement defendant gave following his June 10, 2008, arrest. The State agreed to the suppression of the statement because defendant “asked for an attorney right off the bat.” Defense counsel acknowledged that the recording was accurate in the event it was coming “in for another matter.” A. The Trial Timothy Schroeder, a firefighter/paramedic with the Woodstock Fire Department,
testified that at 5:24 a.m. on June 10, 2008, he responded to the scene of a stabbing outside an Aldi store in Woodstock. Police officers were already at the scene when Schroeder arrived. The male victim, Jorge Avitia, was on the ground and another male was standing over him. Avitia’s pupils did not respond to any kind of stimuli, an early sign that his brain was beginning to shut down. Avitia’s clothes were removed, revealing that he had multiple stab wounds to his body. After the wounds were dressed, Avitia was provided advanced life support and transported to the hospital. Nineteen-year-old Andres Pedroza testified that he had been friends with the defendant
and Jorge Avitia since the third grade. On June 10, 2008, at 2:00 a.m. Pedroza was at his house in Crystal Lake along with defendant. Avitia came over to Pedroza’s house. A short time later Christian Saenz, along with Luis Rodriguez, came over to Pedroza’s house to pick the others up and drive to Woodstock. Pedroza did not know Luis Rodriguez, who sat in the passenger seat. On the way to Woodstock the group stopped at apartments in Crystal Lake. When the group arrived in Woodstock they went to a home behind the Aldi store. The group entered the home and sat in the living room. Christian Saenz left. Rodriguez and Avitia began to argue. Defendant was seated on a couch next to Pedroza. Pedroza heard Rodriguez say “F*** you, George” to Avitia. Rodriguez also called Avitia a “King killer.” Pedroza testified that he guessed this was a reference to a gang, the Latin Kings. He did not know whether defendant was in a gang, but he knew defendant had tattoos on his arm and face. Some of his tattoos had four dots, which could be associated with the Nortenos, also known as the Nortenos 14 street gang. Pedroza testified that after hearing the argument he said, “[l]et’s go” to Avitia. The two
left the house and headed toward the train station. Pedroza noticed that defendant and Rodriguez were following them. Pedroza heard Rodriguez say, “fourteen something” and also heard defendant say something. As defendant and Rodriguez closed in, they began hitting Avitia. Both men were punching Avitia in the body. Pedroza grabbed defendant and asked him and Rodriguez what they were doing. Pedroza believed Rodriguez hit Avitia one more time. Defendant and Rodriguez then left. Avitia passed out and Pedroza called 911. The police drove Pedroza back to the house where the group had gathered. He identified defendant as one of the attackers. Pedroza recalled that either Rodriguez or defendant was holding “something shiny” before or after the attack.
¶ 8 On cross-examination Pedroza admitted he had been drinking before going to the house in Woodstock but he said that he stopped drinking before arriving there. The last act between Rodriguez and Avitia was when Rodriguez kicked him and Avitia went down.
¶ 9 Officer Jeremy Mortimer of the Woodstock police department testified that Avitia was covered in blood and unconscious when he arrived on the scene. Pedroza was trying to revive Avitia. Mortimer drove Pedroza to the house on Brick street where Pedroza identified defendant. James Kelly testified that he lived at 672 Brick Street in Woodstock. Rodriguez was a
friend of Kelly’s and it was not unusual for him to bring people to Kelly’s house to party. When Kelly arrived at home the night of June 9, 2008, Rodriguez and one of his friends were at his house. Kelly went to bed at about 12:30 a.m. on June 10, 2008. He recalled being awakened in the early morning and finding defendant inside his home. Defendant was pacing in front of the door and he asked Kelly to not open the door. Kelly told defendant to sit down and opened the door to allow the police to enter. Defendant sat on the couch “freaking out” and yelling at the police. Defendant threatened the police and Kelly because Kelly would not let him smoke. Kelly recalled defendant saying “some kind of gang thing about Nortenos.” He characterized defendant as being “very aggressive.” Katrina Cardella testified that she was James Kelly’s girlfriend and lived at his house on
Brick Street. The morning of June 10, 2008, Cardella was awakened by the police banging on the house. She had never seen defendant before defendant told her to not open the door. Kelly told defendant to calm down and sit down. Defendant told Cardella and Kelly that he was going to kill them. Defendant told the police officer that “he was going to rape and murder their wives.” He was yelling “gang slogans about Fourteens and how he was a gang banger and they never die.” Defendant asked the police if they knew where their children were. Cardella noticed that there was a knife missing from a set of knives in the kitchen. She identified State’s exhibit 16, a knife recovered by the police outside the home, as the knife that was missing from the kitchen.
¶ 12 Woodstock police officer Daniel Henry was dispatched to the scene of the stabbing. Upon getting a description of the suspects he went to Brick Street. He saw defendant in front of the home at 672 Brick Street. Defendant was holding two gas cans. After seeing Henry, defendant ran inside the home. Henry knocked on the door and James Kelly allowed him inside.
¶ 13 Woodstock police officer Litner [1] was Daniel Henry’s partner and assisted in defendant’s arrest. Litner said defendant was very angry and kept repeating “Nortenos Fourteens.” Defendant was screaming and shouting. Officer Matt Harmon testified that while trying to make contact with the people inside
672 Brick Street he noticed a knife, identified as State’s exhibit 16, outside another entrance at the back of the house. The knife had grass on it but did not have any blood on it. No fingerprints were recovered from the knife. Jorge Avitia testified that he lived in Crystal Lake and he has been friends with defendant
since the fourth grade. On June 16, 2008, at about 2:45 a.m., Avitia was at Pedroza’s house when his friend Christian Saenz and another friend picked them up. Luis Rodriguez was with them. They drove to a house in Woodstock near the Aldi store. An argument broke out about “Nortenos and Kings.” Avitia heard Rodriguez say “King killer” and “Nortenos love,” which means “you get love for that gang, the street gang.” Avitia knew that defendant was a member of the Nortenos street gang. After he and Pedroza left the house to head for the train station he was attacked by defendant and Rodriguez. Before the attack he heard them say “f*** you” and “Nortenos.” Avitia yelled “f*** you” back at them. During the attack defendant was on his left and Rodriguez was on his right side. Both men were punching him. His next memory was waking up in the hospital. He suffered a puncture wound to his heart and two stab wounds to his stomach.
¶ 16 On cross-examination Avitia denied being a gang member. He did not know whether it was defendant or Rodriguez who stabbed him. On re-direct Avitia acknowledged that he is friends with some Latin King members and he admitted that he wears black and gold clothing, the King colors. Avitia said he had been friends with Latin King members for five years. Office Paul Olazak from the Crystal Lake police department testified that defendant told him that he was a member of the Nortenos Fourteen street gang. The Nortenos Fourteen street gang is a rival of the Latin Kings. Office Dimitri Boulahanis of the Crystal Lake police department testified as an expert on
street gangs. He provided a history of the Latin Kings and the Nortenos Fourteen. Boulahanis said that defendant had four gang tattoos, wears the Nortenos Fourteen colors and has used hand gestures demonstrating that he was a member of that gang. Boulahanis had seen Jorge Avitia wearing Latin Kings colors predominantly over the years. He had seen Avitia socializing with members of the Latin Kings in 2006 and 2007, although Avitia never admitted being of member of the Latin Kings.
¶ 19 Dr. Oscar Habab treated Avitia when he arrived at the hospital. Avitia suffered three stab wounds. The wounds were located below the left collarbone, in the left armpit and in the right lower abdomen. Avitia’s blood alcohol content was 0.18.
¶ 20 Dr. Amir Heydari performed surgery on Avitia. Avitia had lost more than 500 ccs of blood. He suffered a stab wound to the heart. During surgery Avitia’s heart stopped and he had to be fibrillated.
¶ 21 Forensic testimony established that reddish-brownish stains on defendant’s shoe and watch were not a DNA match with Avitia’s DNA. The knife recovered outside Kelly’s home was examined for fingerprints but none were found. The State rested. The defense offered certified statements of conviction to impeach two of the State’s
witnesses. Kelly had a conviction for theft by deception under $300 and Avitia had been convicted of aggravated driving under the influence of alcohol. Defendant rested. During the jury instruction conferences prior to closing arguments the State requested
that the trial court admonish defendant of his right to testify. The following exchange took place:
“THE COURT: I will. Thank you, Miss Kelly. Sir, your attorney has just rested the defense case. Have you discussed with Mr. Sugden (defense counsel) your right to testify?
THE DEFENDANT: Yes, ma’am.
THE COURT: Sir, is it your choice not to testify?
THE DEFENDANT: Yes, ma’am.
THE COURT: You discussed this thoroughly with Mr. Sugden?
THE DEFENDANT: Yes.
THE COURT: You understand that the right to testify is a decision that you and you alone have the right to make but you should make that decision only after discussing it with your attorney. You have done that?
THE DEFENDANT: Yes, ma’am.
THE COURT: It’s your choice not to testify?
THE DEFENDANT: Yes, ma’am.
THE COURT: Thank you.
DEFENSE COUNSEL: I have discussed it at great length with him and it’s his decision and I respect it.
THE COURT: Okay. The record will so reflect. Thank you. During closing argument, the State argued that the undisputed evidence showed that defendant participated in the attack on Avitia and that even if defendant did not actually do the stabbing, defendant was accountable for Rodriguez’s conduct. The State argued that defendant’s loyalty to the gang was more powerful than his friendship with Avitia that night. Defense counsel argued that the State’s evidence was weak. There was no scientific evidence to corroborate the State’s theory. “No fingerprints. No blood. No photographs.” Defense counsel argued that the State’s gang theory made no sense. Avitia was aware of defendant’s gang affiliation for years and vice versa. There was no reason for defendant to “suddenly go off.” Defense counsel argued that everyone had been drinking and no one really knew what took place. The jury found defendant guilty on all counts.
¶ 26 Defendant appealed his conviction and sentence. This court affirmed defendant’s conviction and sentence on direct appeal in People v. Knapp , No. 2-09-0089 (2010) (unpublished summary order pursuant to Illinois Supreme Court Rule 23(c)).
¶ 27 B. Post-Conviction
¶ 28 On November 19, 2015, defendant filed a pro se petition pursuant to the Act (725 ILCS 5/122 et seq. (West 2014)). Defendant’s petition raised three issues: actual innocence, involuntary waiver of his right to testify and ineffective assistance of appellate counsel. In his petition defendant alleged that his decision not to testify was induced by “his attorney illegally withholding information critical to [his] decision thus rendering his decision involuntary.” Defendant alleged that he had several pretrial conversations with defense counsel regarding his right to testify. He alleged that he told his attorney that the argument with Avitia inside the house was not about gangs but was about a female name Jackie Gutierrez. He also told his attorney that he would testify that Luis Rodriguez was not a known member of the Nortenos street gang and that he had only met Rodriguez once prior to the events of June 10, 2008. His attorney told him that his testimony regarding the argument inside the house was unnecessary, because Avitia’s statement to the police “disavowed that the incident was gang related.” He said that his attorney told him that: his proposed testimony that the argument was about a girl was not supported by independent evidence; his testimony that Rodriguez was not a known member of the Nortenos would open the door for the State’s gang expert; and his testimony that he had only met Rodriguez once before was not supported by any independent evidence. Defendant alleged that he also had “in-trial conversations” with defense counsel about
testifying. He told defense counsel that: he only removed two gas cans from where Rodriguez washed blood off his bands inside the bathroom; that he saw blood on Rodriguez’s pants; and that Jackie Gutierrez was present at Rodriguez’s house but left suddenly because of lewd comments to her by Rodriguez. As to each of these areas, defense counsel told him that his proposed testimony was unsupported by evidence. On January 28, 2016, the trial court dismissed defendant’s petition by written order. The trial court found that the claim of actual innocence was insufficient and not supported by the documents attached to the petition. The trial court recharacterized defendant’s second claim as a claim of ineffective assistance of trial counsel and found that this claim was barred by res judicata and forfeiture. The trial court found that defendant’s claim of ineffective assistance of appellate counsel was frivolous and patently without merit. Defendant timely appealed the summary dismissal of his petition. ¶ 31 II. ANALYSIS
¶ 32 On appeal, defendant argues only that the trial court erred with respect to his second
claim, that trial counsel was ineffective for not allowing defendant to testify, citing
People v.
Palmer
, 2017 IL App (4th) 150020, ¶ 17;
People v. Youngblood
, 389 Ill. App. 3d 209, 217
(2009) and
People v. Whiting
,
assistance was procedurally barred because defendant “relies on matters that were not part of the
record on direct appeal” citing
People v. West
,
that his claim of ineffective assistance of trial counsel was procedurally barred. Instead, the
State argues that we must affirm the trial court’s dismissal of defendant’s petition because
defendant did not make a “contemporaneous assertion of his right to testify” citing
Youngblood
,
389 Ill. 3d at 217 and
People v. Brown
,
ILCS 5/122-1
et seq.
(West 2014);
People v. Hommerson
, 2014 IL 115638, ¶ 7. At the first
stage, the circuit court determines whether the petition is “frivolous or is patently without merit.”
725 ILCS 5/122-2.1(a)(2) (West 2014);
Hommerson
,
assistance of trial counsel, finding that the claim was barred by
res judicata
and forfeiture. Our
review of a trial court’s dismissal of a postconviction petition is
de novo
.
People v. Hodges
,
234 Ill. 2d 1, 9 (2009). “We review the trial court’s judgment, not the reasons cited, and we
may affirm on any basis supported by the record if the judgment is correct.”
People v.
Anderson
, 401 Ill. App. 3d 134, 138 (2010). “Most postconviction petitions are drafted by
pro se
defendants, and accordingly, the threshold for a petition to survive the first stage review is
low.
People v. Allen
, 2015 IL 113135 (2015) (citing
Hodges
, 234 Ill. 2d at 9 (2009)). To
survive dismissal at the first stage the petition need only present “the gist of a constitutional
claim.”
People v. Gaultney
, 174 Ill. 2d 410, 418 (1996). In evaluating the merits of a
postconviction petition the trial court must accept all well-pleaded allegations as true, “unless the
allegations are positively rebutted by the record.”
People v. Youngblood
,
performance was deficient. Defendant acknowledges that in his petition he “did not expressly
state that he informed counsel he wanted to testify.” Instead, he asks us to infer from the details
he provided that “he communicated a desire to testify to counsel both before and during trial.”
We reject this reasoning. A defendant in a criminal case has a constitutional right to testify in
his own defense, but that right may be waived. In order to effectively waive his right to testify,
“a defendant is not required to execute a specific type of waiver, nor is the trial court required to
ascertain whether a defendant’s silence is the result of a knowing and voluntary waiver to
testify.”
In re Joshua B.
,
¶ 41 The record also positively rebutted defendant’s claim that trial counsel refused to allow
him to testify. The State asked the trial court to admonish defendant regarding his right to
testify. In
People v. Whiting
, 365 Ill. App. 3d 402, 410 (2006), this court stated that “[b]y
creating a record that the defendant was aware that the right and decision to testify were his
alone, a trial court would avoid creating a situation *** in which there is substantial doubt as to
whether the defendant knowingly and voluntarily waived the right to testify on his or her own
behalf.” Throughout the admonitions in this case defendant made no mention of any pressure
from counsel. He stated clearly that he understood the decision was his and his alone. The
record shows a knowing and intelligent waiver of the right made in consultation with counsel.
We conclude that the trial court properly dismissed defendant’s postconviction petition at the
first stage of proceedings because defendant made no contemporaneous assertion of the right to
testify. We also hold that his claim that counsel refused to allow him to testify “is particularly
rebutted by the record.”
People v. Palmer
,
prejudice. Essentially, defendant’s proposed testimony would have provided an alternative motive for the attack, i.e. , that the argument inside Rodriguez’s house was over lewd comments made by Rodriguez to Jackie Gutierrez, who left shortly after the comments. At oral argument we asked counsel what difference defendant’s testimony would have made and he said, “I don’t know.” Defendant did not indicate in his petition that had he been called to testify he would have denied participating in the attack. The dissent accuses us of relying upon “outdated and inapplicable case law.” Infra ,
¶ 70. Yet the dissent does not bother to identify which cases are “outdated” or “inapplicable.” Regardless of which stage a postconviction case reaches, when a defendant’s claim is rebutted by the record, the claim has no merit. Here, defendant was thoroughly admonished by the trial court regarding his right to testify and that it was his decision to make. The dissent’s position is completely contrary to an opinion authored by the dissenting justice. In People v. Whiting , 365 Ill. App. 3d 402, 405 (2006), the defendant filed a post-trial motion alleging ineffective assistance of trial counsel. Whiting alleged that despite her desire to testify, trial counsel “told her that she could not testify on her own behalf.” Whiting raised the issue prior to sentencing and her testimony regarding her desire to testify was uncontroverted. In reversing the defendant’s conviction the majority in Whiting recommended that trial courts “place the matter on the record” and thus avoid creating a situation “where there is substantial doubt as to whether the defendant knowingly and voluntarily waived the right to testify on his or her own behalf.” Id . at 410. The record in this case is free from doubt. What more would the dissent recommend to trial courts? Going beyond verifying that the defendant’s decision not to testify is knowingly and voluntarily made would invade the attorney-client privilege.
¶ 44 C. State’s Attorney’s Appeal Fee After this case was submitted for decision, on our own motion we directed the parties to
file supplemental briefs “addressing the State’s request for statutory State’s Attorney’s fees
pursuant to 55 ILCS 5/4-2002(a) and
People v. Nicholls
, 71 Ill. 2d 166 (1978), and also what
effect, if any, the supreme court’s decisions in
In re W.W.
, 97 Ill. 2d 53 (1983) and
People v.
Johnson
,
Code. 55 ILCS 5/4-2002(a) (West 2016)) (State’s attorney fees in counties under 3,000,000).
In construing a statute, “our primary objective is to ascertain and give effect to the intent of the
legislature, given its plain and ordinary meaning.”
Johnson
,
overruled the supreme court’s decision in
Nicholls
. We begin with
Nicholls,
where the supreme
court held that the “State’s Attorney is entitled to his fee when a convicted defendant is partially
successful on appeal.” , 71 Ill. 2d at 178. That case involved an appeal from the
denial of Nicholls’ postconviction petition. After Nicholls lost his appeal in the appellate court,
the State filed petitions in 28 criminal cases, including Nicholls’, seeking fees from defendants
who were unsuccessful in the appellate court. The appellate court issued a supplemental
opinion, holding “that the State is entitled to have the State’s Attorney’s fees assessed against
unsuccessful criminal appellants, including indigents.”
People v. Nicholls
,
appeal fee
could be assessed against
habeas corpus
petitioners.” (Emphasis added.)
Defendant argues that in
Johnson
, the supreme court observed that “the legislature could have
expanded section 4-2002(a) to include section 2-1401 petitions and postconviction petitions, but
it has not done so.” See
Johnson
, 2013 IL 114639, ¶ 12. Defendant’s arguments miss the
mark completely. In
Johnson
, the supreme court was interpreting a fee awarded in the
trial
court
under section 4-2002.1 of the Counties Code. 55 ILCS 5/4-2002.1(a) (West 2008)
(State’s Attorney fees in counties of 3,000,000 or more population). The fee at issue was
awarded by the trial court following a hearing on a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (West 2008). The
appellate court affirmed.
People v. Johnson
, 2012 IL App (1st) 111378. The supreme court
allowed Johnson’s petition for leave to appeal. In that appeal, Johnson argued that the $50 fee
awarded by the trial court was not statutorily authorized since section 4-2002.1(a) of the
Counties Code does not mention petitions for relief from judgment.
Johnson
,
We also reject defendant’s argument that has been implicitly overruled by the supreme
court’s decision in
In re W.W.
,
“State’s attorneys shall be entitled to the following fees: * * *
For each case of appeal taken from his county or from the county to which a change of venue is taken to his county to the Supreme or Appellate Court when prosecuted or defended by him, $50.” (Emphasis added.) 55 ILCS 5/4-2002(a)) (West 2008) (State’s attorney fees in counties under 3,000,000 population). Unlike in Johnson , this statutory language does not limit the fee to certain types of
appeals. In this case, the State’s Attorney Appellate Prosecutor (SAAP) prosecuted defendant’s appeal on behalf of the State’s Attorney. As the supreme court stated in People v. Kitch , 239 Ill. 2d 452 (2011), under the applicable statutory scheme where SAAP prosecutes the appeal, it is proper to grant the State its $50 statutory assessment. Id . at 471. The State’s request that defendant be assessed $50 as costs for this appeal is well taken. Several appellate court decisions support our determination that the State’s Attorney’s
appeal fee applies to appeals in postconviction cases. In People v. Compton , 77 Ill. App. 3d 1008 (1979), the defendant was sentenced to probation. The State filed a petition to revoke probation. The defendant was arrested on a warrant on the alleged violation and was also charged with a burglary. The defendant was unable to post pond on either the petition or the burglary count. At the conclusion of the hearing on the petition the trial court found that the State had proved the violation, however, the defense moved to dismiss because the State did not bring the defendant to a hearing within 14 days (see Ill. Rev. Stat. 1978, Supp., ch. 38, ¶ 1005-6-4(b)). The trial court dismissed the petition to revoke probation. The appellate court reversed and remanded. The State requested that the appellate court “tax costs accordingly.” Compton , 77 Ill. App. 3d at 1009. The defendant argued that under , “costs in the appellate court cannot be assessed to a defendant in cases where the State, rather than a criminal appellant, has taken the appeal.” Id. The appellate court agreed with the State that does not preclude the imposition of costs. Quoting the language of the statute (formerly Ill. Rev. Stat. 1977, ch. 53, ¶ 8) the court stated that “[t]he above language expressly authorizes the assessment of costs in cases in which the State has prosecuted an appeal. This language, we believe, is sufficiently broad to encompass a State appeal from an adverse ruling in a probation revocation proceeding.” The appellate court also said, “ Nicholls involved among other matters an appeal by a defendant in a post-conviction proceeding which, we note, is civil in nature.” Id. at 1010. The appellate court held that if costs may be assessed “against a defendant in a post-conviction proceeding, we find no justification for denying costs to the State upon its successful appeal from the trial court’s dismissal of a petition to revoke a defendant’s probation.” Id.
¶ 52 As the supreme court noted in
People v. Agnew
, 105 Ill. 2d 275 (1985), the legislature
reexamined the statute after
Nicholls
. Upon its reexamination the legislature did not limit the
State’s Attorney’s fee on appeal to direct appeals following conviction.
Id.
at 279-80.
Therefore, we must conclude that the interpretation of the statute in reflects the
legislative intent.
In
People v. Smith
,
to receive the fee.” (The fee in that case was an award of a per diem fee.) The Smith court said, “[t]he rule may be simply stated as follows: The successful defense of any part of a criminal judgment challenged on appeal entitles the State to a per diem fee and costs for its effort.” Id. at 620. In People v. Hible , 2016 IL App (4th) 131096, the defendant appealed the trial court’s
dismissal of his petition for relief from judgment (735 ILCS 5/2-1401 (West 2010)). On appeal, defendant challenged only that certain fines were improperly imposed by the clerk and that the defendant was entitled to presentence credit toward any new fines imposed on remand. Hible , 2016 IL App (4th) 131096, ¶ 7. The State agreed with both of the defendant’s arguments; nevertheless, the State requested a $50 fee for defending the appeal. The State argued that People v. Williams , 235 Ill. 2d 286 (2009), supported its position that the State’s Attorney’s fee should be assessed. Hible , 2016 IL App (4th), ¶ 29. The defendant argued that the State was not entitled to the fee because the State “did nothing to defend the issue on appeal” ( Id. , ¶ 30), citing People v. Denson , 407 Ill. App. 3d 1039 (2016). In Denson , the defendant raised a single issue on appeal and the State confessed error. With regard to the fee issue we said “[t]his court would have considered defendant’s contention of error even if the State had not filed an appellee’s brief.” Id . at 1041. We therefore denied the State’s request for fees. The Fourth District agreed with this court’s reasoning in Denson . Since the State failed to successfully defend any issue on appeal it was not entitled to the statutory fee. Hible , 2016 IL App (4th) 131096, ¶ 33. In People v. Williams , 384 Ill. App. 3d 327 (2008), the defendant appealed his
convictions of aggravated battery and domestic battery. The defendant raised four issues on
appeal and was successful on one. He argued in his reply brief that his success on one issue
prevented the State from seeking costs.
Id.
at 341. The Fourth District appellate court
disagreed, citing
People v. Nicholls
,
“State’s attorneys shall be entitled to the following fees:
* * *
For each case of appeal taken from his county or from the county to which a change of venue is taken to his county to the Supreme or Appellate Court when prosecuted or defended by him, $50.” (Emphasis added.) 55 ILCS 5/4-2002(a) (West 2008)). Our court has strictly construed this language and granted the State’s request for fees in
both postconviction cases and appeals from the denial of petitions for relief from judgment (735
ILCS 5/2-1401). See
People v. Monroy-Jaimes
,
that a postconviction petition is a criminal case.”
Infra
¶ 88. The dissent also complains that
the “unsuccessful criminal appellant” defined in “leads to absurd results if applied to
appeals from postconviction proceedings.”
Infra
¶¶ 96-97. Prior to our
sua sponte
order in
this case directing the parties to submit supplemental briefs on the appeal fee question, our own
research discovered only one case where an unsuccessful postconviction defendant challenged
the appeal fee.
People v. Lieberman
,
“Here, the appeal from the denial of the post-conviction petition is similar to the direct appeal from the underlying conviction. Its aim is to overturn the conviction and obtain a new trial; it is an appeal of the underlying conviction. Costs should attach.” Lieberman ,149 Ill. App. 3d at 1058 . [3]
This has been the interpretation given to the section 4-2002(a), and to , by every appellate district in our state. As we have noted, the appeal fee has been awarded in appeals from the denial of relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). See People v. Banks , 2016 Ill App (1st) 141665-U, ¶ 14-15; People v. McDaniel , 2016 Ill App (2d) 141061, ¶ 21; People v. Garry , 2017 Ill App (4th) 150373, ¶ 39). The reason the fee has been awarded is obvious. As in postconviction cases, a section 2-1401 petition seeking to overturn a criminal conviction is a “case” wherein an appeal is taken in which the State’s Attorney has “prosecuted or defended” the case on appeal (55 ILCS 5/4-2002(a) (West 2016)). The dissent states that our “conclusion that appellate fees are collectible in collateral civil
proceedings *** is not based in reality.”
Infra
¶ 116. Just the opposite is true. The
dissenting justice himself has been an author or panel member in several decisions awarding the
appeal fee in postconviction cases. See
People v. Spivey
, 2017 Ill App (2d) 140941;
People
Luzaj
, 2017 Ill App (2d) 150596-U;
People v. Richardson
, 2018 Ill App (2d) 150737;
People v.
Klein
, 2018 Ill App (2d) 151244-U. In fact, the dissenting justice, as author in a recent appeal
from the denial of a section 2-1401 petition, awarded appeal costs to the State. See
People v.
Abdullah
, 2018 Ill App (2d) 150840, ¶ 21 (McLaren, Burke, Birkett) (“As part of our judgment,
we grant the State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS
5/4-2002(a) (West 2016); see also
People v. Nicholls
,
rejected the defendant’s argument that the 30-day statutory limit to rule on a postconviction
petition after its docketing was mandatory. 149 Ill. App. 3d at 1055. In
Porter
, the supreme
court concluded that “the 30-day rule was intended to be mandatory.”
¶¶ 47-48), the fee at issue in
Johnson
was awarded in the trial court under a separate provision,
section 4-2002.1(a) of the Code (55 ILCS 5/4-2002.1(a) (West 2008) (“State’s attorney fees in
counties of 3,000,000 or more population.”). See
Johnson
,
in collateral proceedings seeking to overturn a criminal conviction was in error, someone would
have noticed. Recently, the supreme court affirmed this court’s judgment in a postconviction
case where we awarded the appeal fee. See
People v. DuPree
, 2017 IL App (2d) 141013-U,
¶ 59,
aff’d on other grounds
,
“We do not believe assessing a minor $50 for an unsuccessful appeal would further the purposes and policy expressed in the Juvenile Court Act. Nor do we find the legislature, through section 8, necessarily intended such an assessment. As this court said in : ‘In light of present-day county budgeting and accounting procedures, the provisions of section 8 (Ill.Rev.Stat.1975, ch. 53, par. 8) relating to State's Attorney fees may appear to be a relic of another era which might well merit the attention of the legislature.’ ( People v. Nicholls (1978),71 Ill.2d 166 , 179). Under these circumstances, we will not extend this provision by intendment or implication to assess State's Attorney fees on appeal against minors.” W.W. ,97 Ill. 2d at 58 .
This is clearly an expression of policy, or at the very least what the court believed the legislature intended. In stating that the State’s Attorney’s fees may not be awarded “on appeal against minors,” the supreme court refers to Nicholls , but does not express any disagreement with . The dissent disagrees with the First District’s interpretation of W.W. in Lieberman and notes that Lieberman “has never been cited for its fee analysis.” Infra ¶ 95. Until this case and our sua sponte order directing the parties to address the issue, there has been no occasion to question the application of the appeal fee in postconviction cases. We note that American Law Reports summarizes the holding of as follows:
“Where indigent defendant unsuccessfully appeal denial of post-conviction relief, costs for state’s attorney’s fee for defending appeal were properly assessed against defendant.” H. C. Lind, Annotation, Items of costs of prosecution for which defendant may be held , 65 A.L.R.2d 854, ____ (1959).
This is an accurate interpretation of the court’s holding. Postconviction proceedings are initiated by adult defendants seeking to overturn their
convictions for felonies . On appeal, whether from a first-, second-, or third-stage denial of relief, defendants in postconviction proceedings who are indigent are afforded the “ ‘ right to a transcript of the record of the postconviction proceedings and to the appointment of counsel on appeal, both without cost to [the defendant].’ ” Ill S. Ct. R. 651(b) (eff. July 1, 2017). Final judgments in postconviction proceedings are reviewed pursuant to supreme court rules. 725 ILCS 5/122-7 (West 2016). Procedures for appeals in postconviction proceedings “shall be in accordance with rules governing criminal appeals.” Ill. S. Ct. R.651(d) (eff. July 1, 2017). The State’s Attorney or the State’s Attorney Appellate Prosecutor represents the state in postconviction appeals. It is absurd to conclude that the clear language of section 4-2002(a) is not intended to cover appeals in postconviction cases. The dissent would have us not only ignore the plain language of the statute but also ignore the underlying facts in . Contrary to the dissent’s contention ( infra ¶ 91), there are decades of precedent supporting the award of fees in postconviction appeals.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we affirm the trial court’s order summarily dismissing defendant’s
postconviction claim of ineffective assistance. As part of our judgment, we grant the State’s
request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West
2016); see also
People v. Nicholls
,
¶ 68 The judgment of the circuit court of McHenry County is affirmed.
¶ 69 Affirmed.
¶ 70 Justice McLaren, dissenting.
¶ 71 I respectfully dissent from both the majority’s affirmance of the dismissal of defendant’s postconviction petition and from its award of appellate fees to the State. Neither of the majority’s actions here is supported by the established law of this state, and the majority relies on outdated and inapplicable caselaw to reach its conclusions. Petitioner’s Appeal. I first address the merits of petitioner’s appeal. At the first stage, a postconviction
petition need only present the gist of a constitutional claim; this is a low threshold, “requiring
only that the petitioner plead sufficient facts to assert an arguably constitutional claim.”
People
v. Brown
,
¶ 74 The majority acknowledges the fact that this case involves a first-stage dismissal of a postconviction petition, yet it pays this fact mere lip service. It cites the appropriate boilerplate law; however, it then continuously cites to second- and third-stage postconviction cases such that it is impossible to determine what standards the majority has actually applied. The majority opinion is replete with inapplicable caselaw. The majority states:
“To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was objectively unreasonable under prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” (Internal quotation marks omitted.) People v. Domegala ,2013 IL 113688 , ¶ 36.
However, as our supreme court has noted, this analysis applies to a second-stage dismissal; a “different, more lenient formulation” is applied to a first stage dismissal:
“ ‘At the first stage of postconviction proceedings under the Act, a petition alleging
ineffective assistance may not be summarily dismissed if (i) it is
arguable
that counsel's
performance fell below an objective standard of reasonableness and (ii) it is
arguable
that
the defendant was prejudiced.’ (Emphases added.)”
People v. Tate
, 2012 IL 112214,
¶ 19 quoting
People v. Hodges
,
defendant alleging ineffective assistance of trial counsel ‘must overcome the strong presumption
that the challenged action or inaction of counsel was the product of sound trial strategy and not
incompetence.’ ”
Supra
¶ 38. Again,
Coleman
involved a second-stage dismissal. At the
first stage, the defendant need not “overcome” anything; he need only present “the gist of a
constitutional claim.”
Gaultney
,
Youngblood
, 389 Ill. App. 3d 209, the majority posits that, “[a]s a general rule, advice not to
testify is a matter of trial strategy that does not amount to ineffective assistance of counsel unless
counsel refused to allow the defendant to testify.”
Supra
¶ 39. However, our supreme court
has held the “trial strategy” argument to be inappropriate for the first stage of postconviction
proceedings. See
Tate
,
same error as the majority here. In addition to employing the inappropriate “trial strategy”
analysis,
Youngblood
relied to a great extent on
People v. Brown
,
“When a defendant's postconviction claim that his trial counsel was ineffective for
refusing to allow the defendant to testify is dismissed, the reviewing court must affirm
the dismissal unless, during the defendant's trial, the defendant made a ‘contemporaneous
assertion *** of his right to testify.’
People v. Brown
, 54 Ill. 2d 21, 24, (1973).
Defendant's petition contains no allegation that he made any such assertion during the
trial. Absent such an allegation, defendant has not stated the gist of a claim that his
right to testify was violated by counsel.”
Youngblood
,
misplaced. Smith involved a direct appeal after a sentencing hearing. As the supreme court stated, “defendant does not assert that his counsel was ineffective for advising him to refrain from testifying at sentencing, nor does he indicate of what his testimony would have consisted” (i d. at 235), facts that are at odds with the facts of this case. The majority fails to explain the relevance of this case. All of this reliance on factually and legally inapposite cases leads to an improper analysis
and an incorrect result. At the first stage of postconviction proceedings, the court does not
consider the petition on the merits; it determines “whether the petition
alleges
a constitutional
infirmity which would necessitate relief under the Act.” (Emphasis in original.)
People v.
Smith
,
corroboration. Petitioner provided an affidavit in which he stated that he had spoken to his attorney before trial about testifying but was told that, “because there was no evidence to support” his story, he “could not testify.” During the trial, counsel again told him that “there had to be evidence supporting my version of events before he would let me testify. And since there still was nothing supporting me, I could not testify in my own defense.” Further, counsel did not make petitioner aware of certain physical and circumstantial evidence in his possession that tended to support the proposed testimony. Petitioner stated, “Had I known such evidence existed, or that my right to testify was not contingent on any extrinsic evidence, I never would have waived my right to testify at trial.” The majority states that the record positively rebuts petitioner’s claim that counsel
refused to allow him to testify.
Supra
¶ 41. According to the majority, defendant made no
mention of any pressure from counsel during the trial court’s admonishments; petitioner “stated
clearly that he understood the decision [regarding testifying] was his and his alone” such that the
record “shows a knowing and intelligent waiver of the right made in consultation with counsel.”
Id
. First, the majority claims the record rebuts matters that are clearly not of record. This
false conclusion is based on an enthymeme, presuming a false premise that is based upon the old
canard that the absence of evidence is evidence of absence. See
People v. Wills
, 217 IL App
(2d) 150240, ¶ 69 (McLaren, J., specially concurring);
In re Rail Freight Fuel Surcharge
Antitrust Litigation
,
speak to him about his right to testify. The claim is that counsel misled defendant by misstating the law, telling him that he could not testify if he did not have extrinsic evidence supporting his proposed testimony. In addition, counsel did not tell him that certain evidence existed that would have supported his testimony, thus making his advice to defendant both legally and factually inaccurate. The trial court did not ask defendant if counsel correctly explained the rules of law pertaining to his right to testify or accurately told him of all of the evidence relevant to the case. I submit that, in order for the majority to properly conclude that the claim was rebutted by the record, the record should have contained an inquiry similar to the following: “Have you consulted with another attorney to determine that your counsel has properly advised you regarding your right to testify?” An affirmative answer would have rebutted the claims raised. A negative answer would have left the issue unresolved. The trial court’s admonishments and questions in no way covered or addressed defendant’s postconviction claims, let alone positively rebutted these claims. Somehow, the majority misreads my use here of the rhetorical device of
reduction ad absurdum
[5]
as a call for the use of such questioning and goes so far as to complain
that such questioning “would invade the attorney-client privilege.”
Supra
¶ 43. Leaving aside
the majority’s lack of irony, and taking it at its word, I note that a defendant may waive the
attorney-client privilege through the voluntary disclosure of confidential information. See
In re
Grand Jury January 246
, 272 Ill. App. 3d 991, 997 (1995). The trial court can inquire of
defense counsel regarding dealings with the defendant in a
Krankel
inquiry when a defendant
files a
pro se
motion alleging ineffective assistance of counsel. See
People v. Ayres
, 2017 IL
120071, ¶ 12;
People v. Fields
,
¶ 43.
Whiting
involved a claim that counsel told the defendant “that she could not testify on her
own behalf at trial.”
Whiting
,
admonishments given in this case did not address, let alone positively rebut, defendant’s postconviction claims. While such admonishments are beneficial, they are not guaranteed to reach the truth in every possible claim. Whiting never said, as the majority here apparently believes, that such admonishments are a cure-all for all claims involving a defendant’s right to testify.
¶ 87 The majority also finds that, even if it found deficient performance, petitioner “fails to
establish prejudice.”
Supra
¶ 42. Again, this analysis is inappropriate; defendant need merely
show that it is
arguable
that he was prejudiced.
Tate
,
an alternative motive, defendant’s proposed testimony would arguably have attacked the credibility of both Avitia and Pedroza. For example, petitioner alleged that he wished to testify that the argument had nothing to do with gangs and was, instead, about a girl. According to petitioner, counsel told him that testimony about the lack of gang involvement was unnecessary because “Avitia’s statement to police disavowed that the incident was gang-related” and that testimony that the argument involved a girl “was not supported by the evidence.” However, at trial, Avitia testified that both the argument and the fight were gang-related. Petitioner also wanted to testify regarding his own actions related to his possession of two
gas cans just before his arrest. Various Woodstock police officers testified to seeing petitioner in front of the house at 672 Brink Street holding two red gas cans, finding the gas cans in the living room of the house when petitioner was apprehended, and the existence of a fire pit in the backyard of the house. In closing arguments, the State referred to this evidence as “the most powerful evidence that [petitioner] knew he had committed a criminal offense,” stating:
“a reasonable inference is he was clearly afraid that he has gotten some blood on his clothing and he is going to burn his clothing in that back yard where the fire pit is and that is the only reason he would have gas cans containing gasoline in his hands and Officer Henry told you this is minutes after the offense. This is 7 to 10 minutes after the offense.”
The State later further argued that “the circumstance evidence shows the intent he was going to go burn his clothes or conceal the evidence in this case somehow. That's what his intentions were.” Petitioner alleged that he told defense counsel that he “merely removed the two red
plastic gas containers from near the fire pit in the backyard at 672 Brink Street after Rodriguez started a fire in an attempt to burn his bloodstained shirts.” [6] Counsel “dissuaded” petitioner from testifying because “there was no evidence supporting his claim.” Petitioner also attached photos and police reports from the Woodstock police department that, at least arguably, tie Rodriguez to the partially-burnt shirts found in the fire pit. Thus, petitioner was not able to attempt to refute what the State referred to as “the most powerful evidence that [petitioner] knew he had committed a criminal offense” based on both legally and factually inaccurate statements from his counsel. Again, petitioner need only show that arguably he was prejudiced; as the majority has applied the incorrect, higher standard, it has failed to properly address this portion of the ineffective assistance of counsel claim. The majority has failed to analyze this first-stage proceeding properly. It has applied
the wrong standards and relied on inappropriate, distinguishable caselaw throughout its opinion. Incomplete or inaccurate information given to a defendant regarding his right to testify “ ‘is arguably a factor in consideration of whether counsel was ineffective.’ ” People v. Lester , 261 Ill. App. 3d 1075, 1079 (1994) quoting People v. Nix , 150 Ill. App. 3d 48, 51 (1986). After analyzing this case pursuant to the proper standards, I conclude that petitioner pled sufficient facts to assert an arguably constitutional claim (see Brown , 236 Ill. 2d at 184) such that the petition was neither frivolous nor without merit. I would reverse the trial court’s dismissal and remand the cause for second-stage proceedings.
¶ 92 Appellate Fees Both the majority’s analysis regarding appellate fees under section 5/4-2002(a) of the
Counties Code (Fee Statute) and the State’s supplemental briefing on the issue are deficient.
Among the many (16) fees enumerated in the Fee Statute is the fee accorded to State’s Attorneys
for “each case of appeal taken from his county or from the county to which a change of venue is
taken to his county to the Supreme or Appellate Court when prosecuted or defended by him,
$50.” 55 ILCS 5/4-2002(a)) (West 2016). The issue before us in this case is whether that fee
should be awarded in an appeal involving a postconviction petition. As the allowance and
recovery of costs are unknown at common law and rest entirely upon statutory provisions, these
provisions must be strictly construed. ,
for fees. If the holding or ratio decidendi of regarding the applicability of the appellate fee to postconviction appeals was so strong that the appellate defender would fail to file a response or even an objection to the request, why would the State not reference the page or pages upon which this nugget could be found? I noted that the majority, too, failed to provide a pin cite to Nicholls ’ discussion regarding appellate fees in postconviction cases. The majority does provide a pin cite to page 178 of Nicholls for the proposition that “the supreme court held that the ‘State’s Attorney is entitled to his fee when a convicted defendant is partially successful on appeal.’ ” Supra ¶ 46. Perusing page 178, one finds the word “conviction” used four times but not a single use of “post-conviction,” “postconviction,” or even “post.” There is only one reference to post-conviction in Nicholls, in the factual scenario that led to the appeal:
“His petition for post-conviction relief was denied by the circuit court of Madison County. He appealed, in forma pauperis , and the Appellate Court for the Fifth District affirmed the denial ( People v. Nicholls (1975),33 Ill.App.3d 650 ). Shortly thereafter the State filed petitions in the Appellate Court for the Fifth District in 28 criminal cases, including that of defendant Nicholls , in which the defendants had been unsuccessful in their appeals in that appellate court.” (Emphasis added.) ,71 Ill. 2d at 171 .
These three sentences are the supreme court’s perspective on the procedural status of the case. These three sentences also constitute a counterfactual conditional. A counterfactual conditional is a subjunctive conditional containing an “if-clause” that is contrary to actual fact. [8] What is contrary to actual fact here is the statement that the case of defendant Nicholls is a criminal case. In its supplemental opinion regarding fees, it is clear that both the parties and the appellate
court in characterized the consolidated cases as “criminal” cases: “The position advanced
on behalf of the indigent defendants is that the statutes do not authorize the appellate court to
assess costs of an appeal and fees against a defendant and, alternatively, that in any event the
appellate court is without authority to assess costs or fees against a defendant
in a criminal case
after the mandate has been issued.” (Emphasis added.)
Nicholls
People v. Ligon
,
transcripts to indigent petitioners, representation of the state by the State’s Attorney or the State’s
Attorney Appellate Prosecutor) as evidence of the criminal nature of postconviction proceeding.
Supra
¶ 64. It also notes that, according to Supreme Court Rule 651(d), procedures for appeals in
postconviction proceedings “shall be in accordance with rules governing criminal appeals.”
Id.
Interestingly, Supreme Court Rule 660(a) provides that “[a]ppeals from final judgments in
delinquent minor proceedings, except as otherwise specifically provided, shall be governed by the
rules applicable to criminal cases.” As we know from
In re W.W.
,
courts of review in
Johnson
recognized that postconviction petitions are collateral proceedings.
See
Johnson
,
us. This case does not involve a criminal appellant or the affirmance of a conviction. The majority attempts a deflection by changing “affirmance of his conviction” to “failure to overturn his conviction.” A direct criminal appeal may result in the affirmance of a conviction. An appeal from the dismissal of a collateral postconviction petition never results in the affirmance of a conviction. Such an appeal can affirm the dismissal or can reverse the dismissal and remand the cause for further proceedings; either way, the conviction is never affirmed, for the conviction was never attacked. The majority notes that “involved an appeal from the denial of Nicholls’
postconviction petition.” Supra ¶ 46. However, nowhere does the majority examine the court’s analysis as to why the fee should be imposed in postconviction appeals. That failure is understandable; the supreme court never addressed the applicability of the fee to postconviction appeals. The petitioner’s status as appealing from the denial of his postconviction petition is not mentioned in the issues on appeal, is not analyzed as affecting (or not) the imposition of the fee, and is not part of the ratio decidendi of the case. Simply put, the appellant forfeited the issue by not contesting in the supreme court the appellate court’s assertion that the proceeding was a criminal case. The supreme court never addressed the issue, let alone the merits of what the majority claims is binding precedent. The majority does not cite to any authority for the proposition that a forfeited issue that is never addressed constitutes binding precedent, whereas I have cited authority to refute the anomaly created by the majority. It is difficult to comprehend how a counterfactual statement made in the appellate court, which was not contested in the supreme court, could possibly be deemed precedential when there is neither analysis, nor ratio decidendi , nor a grant of appellate fees in the supreme court. The majority relies on the twisted assumption that the absence of an objection to the request for fees in Nicholls is evidence of the merit of the request. There appear to be multiple oversights that the majority refuses to address except by citing to grants of fees in cases where the issue was forfeited by the petitioner. Our supreme court has defined “forfeited” to mean “issues that could have been raised, but were not, and are therefore barred.” People v. Blair , 215 Ill. 2d 427, 443-44 (2005). The majority curiously fails to cite to authority for its assertion that forfeiture is a dispositive ruling on the merits rather than merely a forfeiture. I could cite to cases in which fees were not granted, but that would be giving credence to the claim that the cases cited by the majority have any merit other than as proof that the appellate defender in this district (and possibly others) forfeited the issue. Apparently, the failure of the supreme court to award fees in and Johnson seems to be mere oversight or aberration to the majority. See supra ¶ 59. However, the failure of the appellate defender to object to a request for fees appears to the majority to be acquiescence or an admission. The State refers to as “our supreme court’s most recent determination on the
issued [
sic
] raised by this Court’s question, and it is axiomatic that where the supreme court has
‘declared the law on any point’ this court is ‘bound by such decision ***. [Citations.]’ ” The
doctrine of
stare decisis
expresses the policy of courts to stand by precedent and to avoid
disturbing settled points. See
People v. Sharpe
, 216 Ill. 2d 481, 519 (2005). Pursuant to this
doctrine, “ ‘a question once deliberately examined and decided should be considered as settled and
closed to further argument.’ ”
Wakulich v. Mraz
, 203 Ill. 2d 223, 230 (2003) quoting
Prall v.
Burckhartt
,
cases, including that of the petitioner, in which the defendants had been unsuccessful in their
appeals, seeking judgment for State's Attorneys' fees of $60 in each case, including the $50 fee at
issue here; all 28 petitions were consolidated for hearing and disposition, and the appellate court
held that the State was entitled to the fees. See
Nicholls
,
W.W.
,
“In strictly construing section 8 in favor of the minor, we do not find a clear legislative expression in its language imposing State's Attorney fees for an unsuccessful appeal against minors. In addition, there is no juvenile costs statute similar to the criminal costs statute which, when read with section 8, would indicate a legislative scheme authorizing assessment of such costs. Nor do we believe such an assessment is clearly implied from the provisions in section 8.
Section 8 specifically provides that State's Attorney fees are to be taxed as costs
and collected from the ‘
defendant
,’ if possible, upon ‘
conviction
.’ In
In re Beasley
(1977),
neither a clear legislative intent to impose the fee in appeals from juvenile proceedings nor a
juvenile costs statute that would be part of the “legislative scheme” described in .
Further, it specifically found that, according to established law, juvenile proceedings are not
criminal in nature. The majority incorrectly characterizes as the supreme court’s
ratio decidendi
a “reluctance to characterize juvenile adjudications as convictions” (
supra
¶ 48) or a “policy”
against extending the fee against minors (
supra
¶ 62). On the contrary, the court simply and
affirmatively stated and applied the existing law. The “special nature of juvenile proceedings”
was not a basis for not imposing the fee; it was an explanation of the basis for
why
juvenile
proceedings are not criminal in nature and, thus, not amenable to the imposition of the fee. The
“policy” was also nothing new, as court had already found the lack of “a clear legislative
expression *** imposing State's Attorney fees for an unsuccessful appeal against minors.”
W.W.
,
“In strictly construing section 8 in favor of the minor, we do not find a clear legislative expression in its language imposing State’s Attorney fees for an unsuccessful appeal against minors. In addition, there is no juvenile costs statute similar to the criminal costs statute which, when read with section 8, would indicate a legislative scheme authorizing assessment of such costs. Nor do we believe such an assessment is clearly implied from the provisions in section 8.” Id.
For this same reason, I also disagree with Lieberman , which, I note, has never been cited for its fee analysis. The majority clearly mischaracterizes the holding in W.W. Because the majority ignores the civil nature and unique status of postconviction
proceedings, its position leads to absurd results. According to the Fee Statute, the $50 appeal fee
“shall be taxed as costs to be collected from the defendant, if possible, upon conviction.” 55 ILCS
5/4-2002 (West 2016.) However, “in cases of appeal *** where judgment is in favor of the
accused, the fees allowed the State’s attorney therein shall be retained out of the fines and
forfeitures collected by them in other cases.”
Id.
In
People v. Williams
,
proceedings. In appeals from first- and second-stage dismissals of postconviction petitions, the petitioners seek a remand for further proceedings on the petitions, not a reversal or vacation of the convictions. Such is the case here; petitioner requested that this court “reverse the trial court’s summary dismissal of his post-conviction petition and remand the case for second-stage post-conviction proceedings.” Had we ruled in petitioner’s favor and remanded the cause for further proceedings, most anyone would consider that to be a successful appeal. However, petitioner would still remain a “convicted defendant” after his appeal, such that, according to Williams (a direct criminal appeal), he would be considered “unsuccessful” and liable for paying the State’s Attorney’s fee. The majority fails to address this anomaly, let alone refute it. [10] Curiously, I have not been able to find a case wherein such fees were assessed by any court in any district or the supreme court in successful appeals from first or second stage dismissals. Is it merely coincidence, or is the lack of a reported case proof of the absurdity created by the counterfactual conditional in Nicholls ? See supra ¶¶ 77-79. The methodologies and definitions from Nicholls and its progeny simply do not work when applied to appeals from postconviction proceedings, because such proceedings are not criminal in nature and are not direct challenges to the criminal convictions. The majority misses the point of my argument here. I am not saying that unsuccessful
postconviction petitioners challenging the appeal fee is absurd. See supra ¶ 56. I am saying that, under the definition of “unsuccessful” as remaining a convicted defendant after the appeal, even an appellant who successfully challenges in this court the first-stage dismissal of his petition would remain a convicted defendant. Would the State then be awarded fees, since the petitioner is “unsuccessful” pursuant to ? More recently, our supreme court addressed State’s Attorneys fees in Johnson , 2013 IL
114639. The petitioner in Johnson had filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), which the trial court ultimately dismissed. The trial court also assessed numerous fees and costs against the petitioner, including a $50 fee for “each day actually employed in the hearing of a case of habeas corpus in which the people [ sic ] are interested.” 55 ILCS 5/4-2002.1(a) (West 2010) (which is similar in most respects to section 4-2002(a) but applies to Cook County). The appellate court agreed with the imposition of the fee, holding that “the statute refers to habeas corpus proceedings generically and is meant to encompass frivolous section 2-1401 petitions for relief from judgment.” People v. Johnson , 2012 IL App (1st) 111378 ¶ 13. The appellate court also held that the statute applied to all collateral proceedings, since the legislative intent was to deter frivolous filings. Id.
¶ 114 Our supreme court disagreed. Giving the term “
habeas corpus
” its plain and ordinary
meaning, the court concluded that it applied only to the various types of
habeas corpus
proceedings and rejected the State’s contention that the fee should apply generically to all
collateral proceedings.
Johnson
,
appellate court (incorrectly) affirmed the State’s request for the habeas corpus fee awarded in the trial court, I note that it declined sub silencio to grant the State’s request, made pursuant to and various statutes (including the Fee Statute) that the court “grant the People costs and incorporate as part of its judgment and mandate a fee of $100.00 for defending this appeal.” See page 8 of the State’s appellate brief in People v. Johnson , No. 1-11-1378. Thus, the appellate court, even while expansively reading the Fee Statute vis-a-vis habeas corpus fees, declined to read the Fee Statute as allowing appellate fees for the appeal of that case. Further, the State did not cross-appeal the denial of the appellate fee when the case was appealed to the supreme court, nor did it seek the appeal fee for defending the appeal in the supreme court. Third, it underscored the false premise in Nicholls that postconviction petitions are
criminal proceedings. I note that an action brought under section 2-1401 is, like a postconviction
proceeding, a civil proceeding, and it is subject to rules of civil practice “ ‘even when it is used to
challenge a criminal conviction or sentence.’ ”
People v. Miles
,
upon appeal.”
Supra
¶ 60. I agree. For
res judicata
purposes, a judgment is not final until
the possibility of appellate review has been exhausted. See
Ballweg v. City of Springfield
, 114
Ill. 2d 107, 113 (1986);
Best Coin–Op, Inc. v. Old Willows Falls Condominium Association
, 158
Ill. App. 3d 492, 496 (1987). However, with all due respect to the folk wisdom of Yogi Berra,
this petitioner’s criminal case was over a long time ago. Petitioner did not seek leave to appeal
from this court’s affirmation of his conviction in his direct criminal appeal in
Knapp
, No.
2-09-0089 (2010). As most judges know, “[p]ostconviction proceedings are not a continuation
of, or an appeal from, the original case.”
People v. Harris
, 224 Ill. 2d 115, 124 (2007).
Instead, they are a collateral attack on the underlying judgment.
People v. Evans
,
criminal proceeding and that the State was
not
entitled to the fee. The majority fails to recognize
the petitioner’s forfeiture in in order to claim prior precedent for awarding fees and then
fails to recognize the State’s forfeiture in
Johnson
in order to claim that
Johnson
doesn't apply to
appellate fees because the Supreme Court did not address their merits. This, despite the law of the
case in
Johnson
that denied appellate fees and held that no fees could be collected in a civil,
collateral proceeding unless the legislature included such proceedings in the Fee Statute.
[11]
The
majority has actually limited the holding of
Johnson
on the basis of the State’s forfeiture which, if
anything, is counterintuitive, as it allows the State to continue to collect fees despite its failure to
raise the appellate court’s denial of fees in a cross-appeal. The majority has allowed the State to
benefit from its patent and substantial forfeiture.
Johnson
’s holding was based upon an
uncontested fact, actually a fact
admitted
by the State, that the proceedings were collateral civil
proceedings. See
Johnson
,
procedures, the provisions of section 8 [citation] relating to State's Attorney fees may appear to be
a relic of another era which might well merit the attention of the legislature.” , 71 Ill. 2d
at 179. The court reiterated this in
Johnson
, noting that the statute “has remained unchanged,
despite the creation of additional collateral proceedings such as a section 2-1401 petition and a
postconviction petition.”
Johnson
,
sought to be subjected to their operation; we are to read nothing into such statutes by intendment or
implication.
W.W.
,
terms “juvenile proceedings” and “postconviction proceedings” cannot be found in the statute by
the majority. The arguments supporting the claim of “applying it as written” were raised in
W.W.
and
Johnson
. Both decisions rejected the claim that the statute “as written” contained
references to these proceedings. See,
i.e.
,
W.W.
,
interpreted in a misleading manner.
People v. Kitch
, 239 Ill. 2d 452 (2011), as the majority
states, found it proper to grant the State its $50 statutory assessment where the State’s Attorney
Appellate Prosecutor prosecuted the direct criminal appeal.
Supra
¶ 49. This is a red herring.
I have not suggested that granting a fee in a direct criminal appeal that is prosecuted by the
SAAP resulting in the affirmance of a conviction is somehow remotely similar to a collateral
proceeding.
People v. Compton
,
was entitled to appellate fees when it, rather than the defendant, took the appeal. The majority there cited to Nicholls in the same unthinking, mechanical way as many other cases, failing again to cite specifically where Nicholls allegedly considered and ruled on the application of the Fee Statute to an appeal from a postconviction proceeding. The majority completely misinterprets People v. Agnew , 105 Ill. 2d 275 (1985).
According to the majority, the supreme court in
Agnew
stated that the legislature examined the
Fee Statute after the decision in
Nicholls
and “did not limit the State’s Attorney’s fee on appeal
to direct appeals following conviction” such that “we must conclude that the interpretation of the
statute in
Nicholls
reflects the legislative intent.”
Supra
¶ 51. Why would the legislature need
to limit the fee to direct criminal appeals following conviction?
Nicholls
never said that the fee
applied to civil or collateral appeals.
Nicholls
stated that it found “a legislative scheme which
authorizes the assessment of State's Attorneys' fees as costs in the appellate court against an
unsuccessful criminal appellant upon affirmance of his conviction.”
Nicholls
,
fee for oral argument in the appellate court on a direct criminal appeal in which the defendant was partially successful. Supra ¶ 52. The majority quotes the court’s summary of the rule of Nicholls : “ ‘The successful defense of any part of a criminal judgment challenged on appeal entitles the State to a per diem fee and costs for its efforts.’ ” Supra ¶ 52. What does this tell us about the case before us? This is another red herring, citing to a direct criminal appeal. Although it is consistent with , it is being used by the majority to extend the error of ’ counterfactual conditional and, as such, detracts from the credibility of the majority's ability to distinguish between direct criminal appeals and collateral appeals. Hible , 2016 IL App (4th) 131096, involved an appeal from the dismissal of a
section 2-1401 petition. On appeal, the State sought the imposition of the appellate fee; the defendant objected, arguing that the State was not entitled to the fee because it did not defend any issue on appeal. Id. ¶ 30. The appellate court found that “all parties, and this court, agree with the issues raised by defendant. The State is not ‘defending’ any claims made on appeal.” Id. ¶ 31. Thus, the court concluded that “the State has failed to successfully ‘defend’ any issue before this court and we deny its request for the statutory fee as costs.” Id. Again, the majority fails to explain how this is applicable to our case. The Hible court declined to impose the appellate fee for the reason raised by the defendant: the State did not defend the appeal. The issue of whether the imposition of the appellate fee would be appropriate in an appeal from a section 2-1401 petition was not raised, let alone ruled on. In an interesting turn, I note that Hible is the mirror-image of . The majority
argues that stands for the proposition that the imposition of the appellate fee in a postconviction appeal is appropriate because the defendant therein was appealing from the denial of his postconviction petition and the imposition of the fee was affirmed. If that false logic is correct, so must this argument be: Hible stands for the proposition that the imposition of the appellate fee in a section 2-1401 appeal is not appropriate because the defendant therein was appealing from the denial of his section 2-1401 petition and the imposition of the fee was denied. In both cases, the situation from which the appeal arose (postconviction petition, section 2-1401 petition) was mentioned factually but never raised as an issue, analyzed by the court, or included in the ratio decidendi or holding of the court. The State, and the majority, cannot have one without the other. However, the correct outcome is that they get neither; an unanalyzed and unruled-upon fact is not precedential. The majority also provides lists of cases in which this and other courts have granted
appellate fees in appeals involving both postconviction and section 2-1401 petitions. See
supra
¶¶ 55, 57-58. I could with ease assemble a list of just as many cases, plus one, in which courts
did
not
award appellate fees. But there is no point to such an exercise. It is enough to say that
reviewing courts, including this one,
[13]
can make mistakes, erroneously relying on “established
authority” instead of applying any real analysis. See
People v. Clark
, 2018 IL 122495, ¶ 61
(Neville, J., concurring in part and dissenting in part); see also
People v. Camacho
, 2016 IL App
(1 st ) 140604, ¶ 52, overruled in part on other grounds,
Clark
,
disposition so that other panels that would deny appellate fees in appeals from collateral civil proceedings such as postconviction petitions and 2-1401 petitions may utilize it as a template. The State claims that People v. is controlling and that it stands for the proposition that fees may be assessed in postconviction appeals. only mentions the term “post-conviction” once; in the third sentence of the opinion, the court said, “His petition for post-conviction relief was denied by the circuit court of Madison County.” 71 Ill. 2d at 171. The court then continued with the following:
“He appealed, in forma pauperis , and the Appellate Court for the Fifth District affirmed the denial ( People v. Nicholls (1975) 33 Ill.App.3d 650). Shortly thereafter the State filed petitions in the Appellate Court for the Fifth District in 28 criminal cases, including that of defendant Nicholls , in which the defendants had been unsuccessful in their appeals in that appellate court.” (Emphasis added.) Id.
The statement that the postconviction proceeding was a criminal case is not only incorrect, it has been repudiated in a plethora of cases. The most salient case is Johnson , in which the State not only conceded but affirmatively argued that section 2-1401 petitions were collateral proceedings in which the trial court could award habeas corpus per diem fees pursuant to the Fee Statute. The appellate court agreed with both propositions, but the supreme court only agreed with the characterization of section 2-1401 proceedings as civil, collateral proceedings. The supreme court held that section 2-1401 proceedings and postconviction proceedings are not the same as habeas corpus proceedings and, thus, could not be deemed as included in the Fee Statute as the equivalents of habeas corpus proceedings. All the participants in Johnson recognized what Nicholls failed to realize: postconviction proceedings are not criminal proceedings and Nicholls has no application to civil collateral proceedings since, by its own terms, it was adjudicating 28 criminal proceedings. Interestingly, in Johnson , the State not only failed to cross-appeal the denial of fees by the appellate court, it also abandoned the characterization in Nicholls that postconviction petitions are criminal cases. If is the alpha and omega, as proffered by the State, and is “followed” by the majority in this appeal, it is puzzling that the State failed to cite to in its supreme court brief in Johnson . As the supreme court held in In re W.W. , if the legislature desires to authorize fees for appeals in non-criminal cases, the legislature must act to include such proceedings in the Fee Statute. After W.W. , the legislature did enact fees in certain juvenile court proceedings but did not include appellate fees in the enactment. The only action that the legislature has taken post- Johnson is to repeal the Fee Statute in its entirety. The legislature had the opportunity to include civil collateral proceedings in the Fee Statute but did not do so. This failure to add such proceedings is an implicit ratification of the reality enunciated in Johnson that rejected and abrogated the mischaracterization perpetuated by for decades.
Notes
[1] Officer Litner’s first name does not appear in the record.
[2] In
Palmer
, the appellate court held that defendant’s postconviction allegations that
defense counsel refused to let him testify and that he contemporaneously told defense counsel of
his desire to testify were positively rebutted by the record.
Palmer
,
[3] The supreme court in
Lieberman
summarily reversed the appellate court, citing
People v.
Porter
,
[4] At the time of the Brown decision, there was no such first-stage dismissal. The State was required to answer or move to dismiss the petition within 30 days. See, i.e. , Ill. Rev. Stat. 1981 ch. 38 ¶ 122-5.
[5] Translated from the Latin as “reduction to the absurd.” “In logic, disproof of an
[6] The majority incorrectly lists this claim as “he only removed two gas cans from where Rodriguez washed blood off his bands inside the bathroom.” Supra ¶ 30.
[7] The other issues are not relevant to our decision here.
[8] The term counterfactual was coined by Nelson Goodman in 1947, extending Roderick Chisholm's (1946) notion of a “contrary-to-fact conditional.”
[9] We note that the legislature subsequently amended section 8 of the Act to include a fee for “each proceeding in a circuit court to inquire into the alleged dependency or delinquency of any child.” See 55 ILCS 5/4-2002(a) (West 2016). However, it did not include fees for all actions under the Juvenile Court Act, nor did it amend the statute to include fees for appeals from any juvenile proceedings.
[10] Consistent with this illogic, the majority author here once declined to grant appellate
fees to the State after a “successful” postconviction petitioner argued that he was not proven guilty
of predatory sexual assault, only to have the appellate court
sua sponte
find that he was instead
proven guilty of aggravated criminal sexual abuse and thereby modify his conviction. See
People
v. Guerrero
,
[11] A reviewing court “may take judicial notice of briefs filed in another case.”
People v.
Mosley
,
[12] I also find interesting that there is no indication in Agnew that the supreme court granted any appellate fees for the State’s successful defense of the defendant’s appeal to the supreme court.
[13] And this justice— mea culpa, mea culpa, mea maxima culpa !