People v. KnappPeople v. Knapp
¶ 1 Defendant Justin Knapp was convicted of attempted first degree murder (
¶ 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.”
¶ 4 A. The Trial
¶ 5 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
¶ 6 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.
¶ 7 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
¶ 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.
¶ 10 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.”
¶ 11 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
¶ 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 Litner1 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.
¶ 14 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.
¶ 15 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
¶ 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.
¶ 17 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.
¶ 18 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
¶ 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.
¶ 22 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.
¶ 23 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.
¶ 24 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.
¶ 25 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 (
¶ 29 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.
¶ 30 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
¶ 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, 365 Ill. App. 3d 402, 408 (2006).
¶ 33 A. Ineffective Assistance of Counsel
¶ 34 Defendant argues that the trial court erred in determining that his claim of ineffective assistance was procedurally barred because defendant “relies on matters that were not part of the record on direct appeal” citing People v. West, 187 Ill. 2d 418 (1999). He also argues that his petition presents the gist of a constitutional claim of ineffective assistance of trial counsel because while he “did not expressly state that he informed counsel he wanted to testify, he laid out in some detail the testimony he was prepared to present, and the reasons counsel would not allow him to testify.” Defendant acknowledges that a postconviction petition may be
¶ 35 The State does not challenge defendant‘s argument that the trial court erred in finding 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, 54 Ill. 2d 21, 24 (1973). The State argues that contrary to defendant‘s position, the record does not demonstrate that defense counsel would not allow defendant to testify, but rather that defendant chose not to testify after accepting counsel‘s advice. The State contends that where the record shows that a defendant unequivocally states that he is aware of his right to testify, but chooses to waive that right, he cannot later successfully
¶ 36 The Act establishes a three-stage process for adjudicating postconviction petitions.
¶ 37 Here, the trial court dismissed defendant‘s postconviction petition claim of ineffective 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, 384 Ill. App. 3d 209, 214 (2009). If a petition presents “legal points arguable on their merits” it is not frivolous. Hodges, 234 Ill. 2d at 11. A petition may be dismissed as being “frivolous and patently without
¶ 38 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.’ ” People v. Domegala, 2013 IL 113688, ¶ 36 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). A 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.” People v. Coleman, 183 Ill. 2d 366, 397 (1998).
¶ 39 Defendant‘s petition fails to establish even the gist of a claim that trial counsel‘s 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
¶ 40 In People v. Smith, 176 Ill. 2d 217, 234 (1997), the supreme court noted that the vast majority of states have held that “a defendant‘s waiver of his right to testify is presumed if, as in the present case, he fails to testify or notify the court of his desire to do so.” Id. at 234. In the instant case, we need not presume waiver as the court did in Smith. Here there was an on-the-record discussion regarding defendant‘s decision not to testify. There is nothing in the record that shows that at any time defendant told his lawyer that he wanted to testify despite advice to the contrary. People v. Brown, 54 Ill. 2d 21, 24 (1973). We cited Brown in Youngblood for the proposition that “[w]hen a defendant‘s postconviction claim that his trial counsel was ineffective for refusing to allow that 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.” Youngblood, 389 Ill. App. 3d at 217 (quoting Brown, 54 Ill. 2d at 24). “Absent such an allegation, defendant has not stated the gist of a claim that his right to testify was violated by counsel.” Youngblood, 389 Ill. App. 3d at 217.
¶ 42 Finally, even if we were to find deficient performance, defendant fails to establish 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.
¶ 43 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
¶ 44 C. State‘s Attorney‘s Appeal Fee
¶ 45 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
¶ 46 In order to answer the fee question, we must construe section 4-2002(a) of the Counties Code.
¶ 47 Defendant argues that the supreme court‘s decision in Johnson and In re W.W. implicitly 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.” Nicholls, 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, 45 Ill. App. 3d 312, 322 (1977)). Only Nicholls appealed. In referring to the supplemental opinion, the supreme court noted, “that costs must be taxed in the court wherein they were incurred.” Nicholls, 71 Ill. 2d at 171. The supreme court held that the legislative scheme “authorizes the assessment of State‘s Attorney‘s fees as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.” Id. at 174.
¶ 49 We reject defendant‘s argument that Johnson could be interpreted to implicitly overrule Nicholls. Johnson involved a completely different provision and not a fee assessed on appeal. We also reject defendant‘s argument that Nicholls has been implicitly overruled by the supreme court‘s decision in In re W.W., 97 Ill. 2d 53 (1983). Defendant argues that in In re W.W., the supreme court found that since juvenile proceedings are not criminal in nature, the $50 State‘s Attorney‘s appeal fee applying to the affirmance of criminal convictions was not applicable. Id. at 57-58. Defendant contends that postconviction proceedings are also not criminal in nature and the affirmance of a dismissal or denial of a postconviction petition is not the same thing as the affirmance of a criminal conviction, therefore, the State‘s Attorney appeal fee is not applicable. We disagree. The supreme court‘s analysis in In re W.W. was premised on the special nature of juvenile proceedings and the court‘s reluctance to characterize juvenile adjudications as convictions. Id. The special policy consideration (“humane concern for the minor“) is not at play in postconviction proceedings where convicted adult criminals seek to overturn their convictions on appeal. See People v. Lieberman, 149 Ill. 2d 1052, 1057 (1986), rev‘d on other grounds, 121 Ill. 2d 580 (1988). As the supreme court did in Johnson, we apply the statute at issue as written. Section 4-2002(a) of the Counties Code provides:
“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).
¶ 50 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.
¶ 51 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
¶ 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 Nicholls reflects the legislative intent.
¶ 53 In People v. Smith, 133 Ill. App. 3d 613, 620 (1985), the appellate court noted that under Nicholls, “the State need only successfully defend a portion of the conviction on appeal in order 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.
¶ 54 In People v. Hible, 2016 IL App (4th) 131096, the defendant appealed the trial court‘s dismissal of his petition for relief from judgment (
¶ 55 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, 71 Ill. 2d 166, 178 (1978) (the appeal fee shall be taxed as costs unless judgment is entered in favor of the accused in full).” Williams, 384 Ill. App. 3d at 342. The supreme court allowed Williams’ petition for leave to appeal to resolve a conflict in the appellate court over whether the State may recover costs on appeal when a defendant is partially successful. Williams, 235 Ill. 2d 286 (2009). The defendant relied on a series of
“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)).
¶ 57 The dissent complains that “[t]he entire Nicholls decision is based on the false premise that a postconviction petition is a criminal case.” Infra ¶ 88. The dissent also complains that the “unsuccessful criminal appellant” defined in Nicholls “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, 149 Ill. App. 3d 1052 (1986), rev‘d on other grounds, 121 Ill. 2d 580. In Lieberman, the First District Appellate Court rejected the defendant‘s reliance on In re W.W., 97 Ill. 2d 53 (1983). The First District stated:
“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
¶ 59 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.
¶ 61 The dissent‘s discussion of Johnson is puzzling. As we have pointed out (supra, ¶¶ 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 (
¶ 62 One would think that if every appellate district awarding the State‘s Attorney appeal fee 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, 2018 IL 112307. Although the defendant did not challenge the fee award, our supreme court could have noticed that the fee was erroneous if that was the case.
¶ 63 The dissent states that our decision “clearly mischaracterizes the holding in W.W.” Infra ¶ 95. We disagree. Unlike the supreme court, we do not set policy. The dissent would limit the supreme court‘s decision in W.W. to its observation that “juvenile proceedings are not criminal in nature” (W.W., 97 Ill. 2d at 57). Infra ¶ 95. Following the paragraph that the dissent quotes (infra ¶ 94), the supreme court in W.W. stated:
“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 Nicholls: ‘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.
¶ 64 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 Nicholls 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.
¶ 65 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].’ ”
¶ 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.
¶ 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.
¶ 72 Petitioner‘s Appeal.
¶ 73 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, 236 Ill. 2d 175, 184 (2010). Yet the majority concludes that petitioner‘s allegations that defense counsel misinformed defendant about the evidence in the case and the applicable
¶ 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.
¶ 75 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, 234 Ill. 2d 1, 17 (2009).
¶ 76 Quoting from People v. Coleman, 183 Ill. 2d 366, 397, the majority asserts that “[a] 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
¶ 77 Relying on another case of People v. Coleman, 2011 IL App (1st) 091005, ¶ 29 and 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, 2012 IL 112214 ¶ 22. Thus, the fact that “trial counsel discussed ‘at great length’ defendant‘s decision not to testify” is irrelevant to the analysis here, as is the majority‘s reliance on Youngblood‘s conclusion that “defendant‘s decision not to testify must be viewed as a strategy with which he agreed.” See supra ¶ 39.
¶ 78 Like the case before us, Youngblood involved a first-stage dismissal. It also made the 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, 54 Ill. 2d 21 (1972), holding:
“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, 389 Ill. App. 3d at 217.
¶ 80 In the same vein, the majority‘s reliance on Smith, 176 Ill. 2d 217 (supra ¶ 40) is 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” (id. at 235), facts that are at odds with the facts of this case. The majority fails to explain the relevance of this case.
¶ 81 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, 326 Ill. App. 3d 831, 839 (2001). The first stage involves a pleading question; “[u]nless positively rebutted by the record, all well-pled facts are taken as true at this stage and the trial court‘s determination is subject to de novo review.” Id. “Substantive questions relating to the
¶ 82 Certainly, petitioner‘s allegations here were capable of objective or independent 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.”
¶ 83 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
¶ 84 Second, petitioner‘s allegation is not that counsel pressured him not to testify or did not 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.
¶ 85 Somehow, the majority misreads my use here of the rhetorical device of
reduction ad absurdum5 as a call for the use of such questioning and goes so far as to complain
¶ 86 I am unsure what to make of the majority‘s confused analysis of Whiting. See supra ¶ 43. Whiting involved a claim that counsel told the defendant “that she could not testify on her own behalf at trial.” Whiting, 365 Ill. App. 3d at 405. The majority here fails to comprehend that defendant‘s claim in this case is not that counsel refused to allow him to testify, but that counsel‘s advice to defendant was both legally and factually inaccurate such that he misled defendant into believing that his testimony would not be allowed. I still believe, as we said in Whiting, that we benefit from “a trial court‘s clarification of whether a defendant has knowingly waived this important constitutional right to testify, either by an admonishment by the court on the record, or on-the-record questioning of the defendant regarding the defendant‘s knowing waiver of that right.” Whiting, 365 Ill. App. 3d at 410. Nothing that I have said in this dissent could be read as “contrary” to this. See supra ¶ 43. What I have said is that the
¶ 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, 2012 IL 112214, ¶ 19.
¶ 88 Contrary to the majority‘s claim that defendant‘s proposed testimony would provide only 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.
¶ 89 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.”
¶ 90 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.
¶ 91 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.
¶ 92 Appellate Fees
¶ 93 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.”
¶ 94 The relevant issue as framed by the supreme court in Nicholls was whether the State‘s Attorney‘s fee “for defending an unsuccessful appeal by a convicted criminal defendant may be
¶ 95 The majority here references a “legislative scheme” in Nicholls (supra ¶ 46) but fails to mention that the scheme included other legislation in addition to the Fee Statute. It is all of those statutes that, “when read together, indicate a legislative scheme which authorizes the assessment of State‘s Attorney‘s fees as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.” Nicholls, 71 Ill. 2d at 174. The Fee Statute itself says nothing about “an unsuccessful criminal appellant upon affirmance of his conviction.”
¶ 96 I was intrigued by the fact that the State never provided a pin cite to Nicholls in its request for fees. If the holding or ratio decidendi of Nicholls regarding the applicability of the appellate fee to postconviction appeals was so strong that the appellate defender would fail to file a response
“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.) Nicholls, 71 Ill. 2d at 171.
These three sentences are the supreme court‘s perspective on the procedural status of the case.
¶ 97 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.
¶ 98 In its supplemental opinion regarding fees, it is clear that both the parties and the appellate court in Nicholls characterized the consolidated cases as “criminal” cases: “The position advanced
¶ 99 However, postconviction proceedings are civil, rather than criminal, in nature. See People v. Ligon, 239 Ill. 2d 94, 103 (2010). A postconviction proceeding is a collateral attack on the prior conviction or sentence that does not relitigate innocence or guilt. Id. The majority never addresses, let alone refutes, these facts.
¶ 100 The majority points to various procedures (appointment of counsel on appeal, free 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
¶ 101 However, it is in the trial court that the civil nature of the postconviction proceedings is manifest. For example, “after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal.”
¶ 102 The civil nature of postconviction proceedings was recognized well before Nicholls. Both courts of review in Johnson recognized that postconviction petitions are collateral proceedings. See Johnson, 2013 IL 114639, ¶ 12 (“The statutory provision that allows imposition of the $50 [habeas corpus] fee first appeared in the statute in a 1907 amendment, and has remained unchanged, despite the creation of additional collateral proceedings such as a section 2-1401 petition and a postconviction petition.” (Emphasis added.)); Johnson, 2012 IL App (1st) 111378 ¶ 13 (“the $50 State‘s Attorney [habeas corpus] fee applies to all collateral proceedings and the
¶ 103 The majority fails to explain why the holding in Nicholls applies to the situation before 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.
¶ 104 The majority notes that Nicholls “involved an appeal from the denial of Nicholls’ postconviction petition.” Supra ¶ 46. However, nowhere does the majority examine the Nicholls 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
¶ 105 The State refers to Nicholls 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
¶ 106 As the Nicholls court noted, the State filed petitions in the appellate court in 28 “criminal” 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, 71 Ill. 2d at 171. The supplemental opinion of the appellate court granting the fees (45 Ill. App. 3d 312 (1977)) was filed only in Nicholls’ case. Id. at 171-72. The three issues presented to the supreme court are clearly stated; not one of them involves whether the State‘s Attorneys fee at issue before us should be granted after an unsuccessful appeal from the dismissal of a postconviction petition. We do not know whether any of the 27 other defendants had appealed from the denial of a postconviction petition; we do know that the supreme court assumed them to be criminal cases. The fact that Nicholls did not address or analyze the fact that is so central to the issue before us but merely noted its existence in one of 28 consolidated appeals repudiates Nicholls’ precedential value in this case. See U.S. Bank Nat. Ass‘n v. In Retail Fund Algonquin Commons, LLC, 2013 IL App (2d) 130213, ¶ 16
¶ 107 The generic applicability of the Fee Statute to only criminal cases was affirmed in In re W.W., 97 Ill. 2d 53 (1983). In W.W., the State was awarded the $50 State‘s Attorney appellate fee after defending in the appellate court the appeal of a minor who had been adjudicated delinquent and made a ward of the court. Our supreme court noted that the Fee Statute specifically provided
¶ 108 The majority argues that the supreme court‘s analysis in W.W. “was premised on the special nature of juvenile proceedings and the court‘s reluctance to characterize juvenile adjudications as convictions.” Supra ¶ 48. This language, though unattributed by the majority, is an almost-direct quote from People v. Lieberman, 149 Ill. App. 3d 1052, 1058 (1986), analyzing W.W.; it is not the supreme court‘s language from W.W., nor is it the majority‘s own interpretation of W.W. Let us look at what the supreme court actually said in determining that the fee did not apply to the minor‘s appeal:
“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), 66 Ill.2d 385, 389, this court said juvenile proceedings are not criminal in nature. As such, a minor is neither ‘convicted’ nor considered a ‘defendant’ or an ‘accused.’ Nor is a proceeding under the Juvenile Court Act denominated a ‘conviction.’ (In re R.R. (1979), 75 Ill. App. 3d 494.) Rather, such proceedings are to be administered in a spirit of humane concern for the minor and to promote both the welfare of the minor and the best interests of the community.
Ill. Rev. Stat. 1979, ch. 37, par. 701-2 ; In re Beasley (1977), 66 Ill. 2d 385, 389.” (Emphases added.) W.W., 97 Ill. 2d 57-58.
¶ 109 The majority‘s interpretation in our case is a deflection. The supreme court found 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 Nicholls. 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
“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.
¶ 110 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.”
¶ 111 This definition leads to absurd results if applied to appeals from postconviction 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
¶ 112 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 Nicholls 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 Nicholls?
¶ 113 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
¶ 115 Our interest in Johnson is three-fold. First, our supreme court declined to give a broad reading to the Fee Statute. Strictly construing the Fee Statute, the court noted that the statutory provision that allowed imposition of the fee first appeared in a 1907 amendment to the statute and had remained unchanged “despite the creation of additional collateral proceedings such as a section 2-1401 petition and a postconviction petition [which was created in 1949].” (Emphasis added.) Id. The legislature could have amended the Fee Statute to include fees for other collateral proceedings as they were created, but it never did so, and the court would not read words or meanings into a statute when the legislature had chosen not to include them. Id. The court also disagreed with the unexplored “assumption” of the appellate court in People v. Gutierrez, 2011 IL App (1st) 093499 that “the fee could apply to a postconviction petition.” Id.
¶ 116 Second, I note the lack of appellate fees granted in the Johnson appeals. While the 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 Nicholls 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
¶ 117 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, 2017 IL App (1st) 132719, ¶ 21, quoting People v. Vincent, 226 Ill. 2d 1, 6 (2007). Once again, the majority‘s analysis, if applied, would lead to an absurd result as applied to Johnson. The petitioner in Johnson successfully appealed his only issue in the supreme court, the imposition of the habeas corpus per diem fee. However, under the “no longer a convicted defendant following the appeal” definition of a successful appellant in Williams (see supra ¶ 84), the petitioner would still be subject to the imposition of the appellate fee, because he remained a convicted defendant after his appeal.
¶ 118 The majority completely misses the point on Johnson vis-à-vis Nicholls. It finds Nicholls to be controlling on the imposition of the appellate fee on a postconviction appeal when the issue was forfeited by the petitioner therein, yet it finds Johnson distinguishable even though the State sought (and was denied) the appellate fee in the appellate court and failed to appeal the denial or to seek the fee in the supreme court. Ultimately, it is not just the supreme court‘s reversal of the trial court‘s fee award that is important in Johnson. It is also (1) the lack of an award of appellate fees in the various Johnson appeals; and (2) the supreme court‘s rationale that no fee will be awarded if it is not specifically listed in the statute. The majority completely ignores these important aspects of Johnson. The majority also fails to accept the legal and factual declaration that postconviction petitions and section 2-1401 petitions are civil collateral proceedings as recognized by the State,
¶ 119 The majority states that a felony case “ain‘t over” until the “final disposition of the case 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, 186 Ill.2d 83, 89 (1999) Smith, 326 Ill. App. 3d at 839. Failure to recognize these basic facts again leads the majority to misstate the law. The majority fails to accept the fact that, as Yogi said, “We made too many wrong mistakes.” The majority compounds the mistakes by refusing to address the patent absurdity of the premise contained in Nicholls that postconviction petitions are criminal proceedings and by going to great lengths to attempt to reconcile the absurd results flowing from that false premise.
¶ 120 Ironically, the State forfeited the issue of appellate fees in Johnson just as the petitioner in Nicholls did when he failed to claim the opposite, i.e., that the postconviction petition was not a criminal proceeding and that the State was not entitled to the fee. The majority fails to recognize the petitioner‘s forfeiture in Nicholls 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
¶ 122 This principle is also manifest in the legislature‘s recent amendment of the Fee Statute. In Nicholls, our supreme court noted: “In light of present-day county budgeting and accounting 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.” Nicholls, 71 Ill. 2d
¶ 123 Statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation; we are to read nothing into such statutes by intendment or implication. W.W., 97 Ill. 2d at 57. Here, the Fee Statute, as interpreted by Nicholls, provides for state‘s attorney fees “as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.” Nicholls, 71 Ill. 2d at 174. Strictly construing the Fee Statute in favor of petitioner, I can find no clear expression of an intent to impose the $50 appeal fee for an unsuccessful appeal from the dismissal of a civil, collateral postconviction petition. The Fee Statute generically applies to criminal cases, which a postconviction proceeding clearly is not, despite Mr. Nicholls’ forfeiture of the appellate courts’ misnomer labeling his proceeding a criminal case. Further, while the legislature has specifically provided for state‘s attorney fees in certain non-criminal proceedings, it has not done so for proceedings under the Postconviction Hearing Act. Thus, I can find no basis to impose such a fee here.
¶ 125 The majority cites a number of cases that are either immaterial, distinguishable, or 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.
¶ 127 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, 71 Ill. 2d at 174. This sounds like direct criminal appeals following conviction to me. I note that Agnew involved a direct appeal after conviction. Agnew, 105 Ill. 2d at 277. In addition, the issue before us (the $50 appellate fee) was specifically not at issue in Agnew; the defendant there conceded that the fee was proper and contested only the assessment of the per diem fee that had been awarded to the State for oral argument on appeal. Id. at 278. As I have already demonstrated, Nicholls never examined, let alone ruled on, whether the appeal fee was appropriate in an appeal from the first-stage dismissal of a postconviction petition. See Nicholls, 71 Ill. 2d at 172 for the three issues presented to the court, none of which involves postconviction proceedings. Thus, any legislative examination of the Fee Statute in light of
¶ 128 The majority raises Smith, 133 Ill. App. 3d 613, which dealt with the award of a per diem 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 Nicholls, it is being used by the majority to extend the error of Nicholls’ counterfactual conditional and, as such, detracts from the credibility of the majority‘s ability to distinguish between direct criminal appeals and collateral appeals.
¶ 129 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.”
¶ 130 In an interesting turn, I note that Hible is the mirror-image of Nicholls. The majority argues that Nicholls 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.
¶ 131 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
¶ 132 In conclusion, the majority‘s conclusion that appellate fees are collectible in collateral civil proceedings (that Nicholls mischaracterized as criminal proceedings) is not based in reality. The decision here refuses to accept the holdings in numerous supreme court cases, including Johnson, that postconviction proceedings are civil proceedings that have not been included in the Fee statute, either specifically or by implication.
¶ 133 Having addressed the deficiencies of the majority draft, I submit the following 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.
¶ 134 The State claims that People v. Nicholls is controlling and that it stands for the proposition that fees may be assessed in postconviction appeals. Nicholls 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 Nicholls 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 Nicholls 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