THE PEOPLE OF THE STATE OF ILLINOIS v. TYREACH STONE
No. 1-18-0029
Appellate Court of Illinois, First Judicial District
September 23, 2020
2020 IL App (1st) 180029-U
THIRD DIVISION. NOTICE: This order was filed under
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court of Cook County is reversed; postconviction counsel‘s failure to amend defendant‘s pro se postconviction petition by attaching the affidavit of a witness the petition argued could provide exculpatory testimony but who was not called to testify or contacted before defendant‘s trial, or to explain the absence of such an affidavit, affirmatively rebutted the presumption that postconviction counsel complied with
¶ 2 The State charged defendant, Tyreach Stone, with armed robbery with a firearm. Following a jury trial, defendant was convicted and sentenced to 27 years’ imprisonment—12 years’ imprisonment for armed robbery and a mandatory 15-year sentence enhancement for possession of a firearm during the commission of the offense. This court affirmed defendant‘s conviction and sentence on direct appeal. People v. Stone, 2013 IL App (1st) 112933-U.
¶ 3 For the following reasons, we reverse.
¶ 4 BACKGROUND
¶ 5 This court previously stated the evidence adduced at defendant‘s trial and other pertinent information concerning his conviction and direct appeal in our disposition of defendant‘s direct appeal in Stone, 2013 IL App (1st) 112933-U. The following is taken directly from that disposition and restated here for purposes of providing context for this appeal and to relay the information regarding defendant‘s underlying conviction and appeal necessary to our resolution of the issues raised herein.
¶ 6 Prior to trial, during jury selection, the trial court asked the potential jurors, in three separate groups, the following questions regarding “the Zehr principles” (see People v. Sebby, 2017 IL 119455, ¶ 6):
- I am going to ask all of you individually if you will be able to adhere to those principles of our legal system.
- Would each of you be able to follow the principles of law I said here today?
- Do you agree to apply the principles of law in this case?
When the trial commenced the victim in the underlying case, Steven Tigner, testified that on October 16, 2010, at approximately 5:00 p.m., he was studying at Kennedy-King College in
¶ 7 The security guard who had told the victim it was time for the school to close also testified that at approximately 5:00 p.m. he observed the robbery. The security guard testified he saw a man he later identified as defendant “punch Tigner in the head, grab a bag from him and then walk away briskly with the other men.” Id. ¶ 13. Police arrested defendant and one other man soon after the offense occurred but did not recover a weapon.
- “[T]he State failed to prove beyond a reasonable doubt that defendant had a firearm during the commission of the robbery and, therefore, no rational trier of fact could have found that defendant possessed a firearm at the time of the robbery;”
- “[T]he trial court improperly enhanced his sentence by 15 years pursuant to
720 ILCS 5/18-2(b) (West 2008)) ” because our supreme court found that section unconstitutional and thus it was ”void ab initio and could not be applied in this case;” and - “[T]he trial court denied his right to a fair and impartial jury by: (1) failing to admonish the jurors that the defendant‘s failure to testify cannot be held against him, and (2) failing to ascertain whether the jurors understood and accepted the admonishments that the trial court judge did read to the jurors.”
As to the final argument defendant failed to preserve the issue for appeal. Id. ¶ 40. This court addressed the issue under the plain error rule and first determined that the trial court had erred in failing to comply with the requirements of
¶ 9 After this court affirmed defendant‘s conviction on direct appeal defendant filed the pro se petition for postconviction relief that is the subject of this appeal. On July 29, 2014, defendant filed the pro se postconviction petition. The petition alleged, in pertinent part, that the “issues presented by the petition *** were not included in defendant‘s direct appeal due to the ineffective assistance of appellаte counsel.” The petition stated defendant‘s “constitutional claims” as follows:
“Claim One:
Petitioner was denied his right to due process where petitioner‘s sentence is unfairly disproportionate to co-defendant Matthew Barnes. Barnes received a 6 year sentence and petitioner received 27 years. This discrepancy was fundamentally unfair. [Citation.]
Claim Two:
Petitioner received the ineffective assistance of trial counsel for failing to obtain video recordings, and call material witnesses. Had counsel at minimal (sic) attempted to secure the above the defense would have focused on an alternative suspect.
Claim Three:
Petitioner received the ineffective assistance of appellate counsel for failing to present issues that were raised and preserved in petitioner‘s post-trial motion. And ignored the requests petitioner made regarding claims with the above arguments.
Claim Four:
Petitioner was denied his right to a fair trial when the State was allowed to introduce perjured testimonies.”
The petition further stated, in pertinent part, that “[p]etitioner asked counsel on various occasions to contact the witnesses he knew would be crucial to his defense. Counsel failed at a minimal (sic) to contact the witnesses. *** Appellate counsel‘s performance wаs deficient because counsel did not investigate and brief Petitioner‘s meritorious claims. The issue(s) that were briefed were clearly and significantly weaker than petitioner‘s claims.”
¶ 10 Defendant attached two of his own affidavits to the petition. The first affidavit stated, in pertinent part, as follows:
“2. Defense counsel was asked to send investigators on December 29, 2010, to see if a video cameras (sic) could be located at the scene of the alleged crime (armed robbery) and to speak with my witness. She plainly refused. See 65-N O-25 Exhibit [illegible].2
3. Defense counsel was asked to object to the
Illinois Supreme Court Rule 431(b) admonishments at trial nor did counsel raise the issue in a post-trial motion. She plainly refused.
4. I asked Appellate (sic) counsel to look into the above matters, however, appellate counsel did not investigate the claim nor briefed (sic) these claims as requested.”
The second affidavit by defendant stated, in pertinent part, as follows:
“3. On October 16, 2010, shortly before 5:00 p.m., I was walking down 64th & Halstead (sic) to go to 63rd & halsted (sic) to meet Brenda Green at the Chicago Transit Authority metra station (sic) to give her, her cigarettes she asked me to get for her prior to when she was getting on the train.
4. When I reached the Chicago Transit Authority metra station I stood outside to wait for her and the process of waiting I observed Matthew, Eric and Peanut walking down 63rd & Halsted.
5. After I saw them they saw me at the same time and аpproached me and Matthew asked what was I doing, and I told him waiting for Brenda to get off the Metra train and I asked him what were they doing and Matthew stated: ‘we looking for someone to rob[‘] and I stated ‘good luck.’
***
7. Shortly after, Brenda came out the Chicago transit authority metra station and asked me where were her cigarettes and I stated right here and gave her the one I had lit already.
8. After I gave her her cigarettes and the one that was lit we started to walk north down 63rd & Halsted once we reached the corner of 63rd we turned east towards Kennedy-King college parking lot which is located on 63rd & Union where we was going to wait for her ride.
9. After 15 or 20 minutes of waiting Brenda‘s ride arrived and I asked hеr for a cigarette she gave me one and I said thank you and she told me don‘t be getting into no trouble out here and I said ‘Ok’ and headed north down 63rd & Union toward 62nd.
10. Several minutes later after I left Brenda I was walking down 6[illegible]nd & Union when I observed Matthew Barnes walking down 6[illegible]nd place, he asked where I was about to go and when I was about to answer the question Matthew Barnes saw the police and fled and the police got out and pursued him on foot and the other police officer got out and handcuffed me and we drove around to the alley where they had Matthew Barnes on the floor, in handcuffs, and they arrested us. Officer Blackman and Johnson.
11. After I was arrested I asked Brenda Green if she would come in and be a witness for me and she stated ‘yes’ but my public defense counsel failed to call her when we was in trial and I asked Matthew Barnes if he could do the same but he said no because he did not want to say something that could get used against him.
12. I state that I did not participate with Matthew Barnes, Eric, and Peanut in robbing Steven Tigner nor did I have any knowledge that they was going to rob Steven Tigner.”
¶ 11 On December 13, 2016, defendant‘s postconviction counsel filed a certificate pursuant to
“provides no affidavits from any witness let alone a ‘material witness’ as required by the ‘Act.’ In fact, the only witness mentioned by the defendant *** is a friend of his named Brenda Green and there is no allegation that she was even at the scene at the time of the crime. Again, the defendant provides no support for that allegation against counsel. Not only is there no contact information available for these witnesses but if the defendant now wants to present their potential testimony he is required by the ‘Act’ to present their affidavits and the failure to do so is fatal to the claim. *** Here, there are no affidavits from anyone mentioned in [defendant‘s] affidavits nor are there any affidavits from the alleged ‘material’ witnesses mentioned by the defendant in his pro se petition.”
The State concluded that “[b]ecause the defendant has failed to allege with the required specificity and support his allegations with any probative documentation his petition is subject to the State‘s motion to dismiss.” The State‘s motion to dismiss also argued that defendant‘s trial counsel was not ineffective in deciding not to object to the
¶ 13 This appeal followed.
¶ 14 ANALYSIS
¶ 15 On appeal from the second-stage dismissal of his pro se postconviction petition defendant argues postconviction counsel “provided an unreasonable level of assistance when counsel neither amended [defendant‘s] petition to include required affidavits nor filed a motion to withdraw, and counsel permitted the [trial] court to misconstrue a valid claim as waived.” We agree with defendant that postconviction counsel failed to provide the level of assistance required by the Act with regard to the failure to amend defendant‘s pro se petition and/or to include certain affidavits. For the following reasons we reverse the trial court‘s judgment granting the State‘s motion to dismiss and remand for further proceedings with new appointed counsel.
“The instant case involves the second stage of postconviction proceedings, during which the dismissal of a petition is warranted only when the allegations in the petition, liberаlly construed in light of the original trial record, fail to make a substantial showing of a constitutional violation. [Citation.] At this stage, ‘all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true.’ [Citation.] The defendant ‘bears the burden of making a substantial showing of a constitutional violation.’ [Citation.] We review de novo
the trial court‘s dismissal of defendant‘s postconviction petition without an evidentiary hearing. [Citation.]” Shaw, 2019 IL App (1st) 152994, ¶ 19.
¶ 17 Before getting to the merits of the petition, however, we must address appointed counsel‘s representation of defendant and the challenge to her compliance with
“There is no constitutional right to the assistance of counsel in postconviction proceedings; the right to counsel is wholly statutory (see
725 ILCS 5/122-4 (West 2000)) , and petitioners are only entitled to the level of assistance provided for by the [Act] (725 ILCS 5/122-1 et seq. (West 2000)) . [Citation.] The Act provides for a reasonable level of assistance. [Citation.] To ensure that postconviction petitioners receive this level of assistance,Rule 651(c) imposes specific duties on postconviction counsel. The rule provides as follows:‘Upon the timely filing of a nоtice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner‘s attorney, that the attorney has consulted with petitioner
either by mail or in person to asсertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner‘s contentions.’ [Citation.]” (Emphases added.) Suarez, 224 Ill. 2d at 42.
¶ 18 In this case, defendant argues his appointed counsel “abdicated her duty to provide a reasonable level of assistance” because appointed counsel failed to obtain an affidavit from a potential witness named in the pro se petition (Brenda Green), failed to amend the petition to explain the absence, and failed to withdraw as counsel (if appointed counsel believed defendant‘s claims were without merit). Defendant argues his appointed postconviction counsel instead chose to stand “on an unamended, facially deficient postconviction petition without explanation.” Defendant relies on the claim in his pro se petition that defendant‘s trial counsel provided “ineffective assistance *** for failing to *** call material witnesses” coupled with defendant‘s averments concerning his interactions with Brenda Green near and at the time of the offense, and that defendant, “[a]fter [he] was arrested *** asked Brenda Green if she would come in and be a witness for me and she stated ‘yes’ but my public defense counsel failed to call her when we was in trial” and that “[d]efense counsel was asked to speak with my witness. She plainly refused.”
¶ 19 Relying on our supreme court‘s decision in People v. Johnson, 154 Ill. 2d 227, 247 (1993), defendant argues that appointed counsel has a duty under
¶ 20 Defendant, relying on People v. Schlosser (Schlosser II), 2017 IL App (1st) 150355, ¶ 38, also argues appointed counsel‘s duty under
¶ 21 Defendant acknowledges that appointed counsel‘s certificate of compliance raises a rebuttable presumption she complied with
¶ 22 The State responds defendant cannot meet his burden to establish that appointed postconviction counsel provided an unreasonable level of assistance or to overcome the presumption created by his appointed counsel‘s certificate of compliance with
¶ 23 The State also argues the trial court did not need Green‘s affidavit where the existing affidavits and record evidence permits a decision on the efficacy of defendant‘s constitutional claims. The State argues the efficacy of those claims could be determined from defendant‘s affidavits and the record because, accоrding to the State, “even if Ms. Green had testified to all the things that defendant claims in his affidavit, his conviction could still be sustained as the other evidence against him was sufficient.” Specifically, the State notes that defendant averred
¶ 24 The State is correct in its assertion that an affidavit is not required where other evidence is sufficient to make a substantial showing of a constitutional violation including claims of ineffective assistance of counsel based on an alleged failure to discover and intrоduce new witness testimony. See id. In Dupree, the appellate court “ruled, as a matter of law, that [the] defendant‘s petition was not in conformance with the requirements of section 122-2 of the Act because defendant did not attach to his postconviction petition an affidavit from the proposed witness (Morrison) and the lack of an affidavit was fatal to his claim of ineffective assistance of counsel.” Id. ¶ 30. Our supreme court disagreed, holding that,
“[i]n none of the cases cited by the State did this court create a bright-line rule or refuse to consider whether a postconviction petitioner had made a substantial showing of ineffective assistance of counsel simply because no affidavit from the proposed witness was attached to the petition.” Id. ¶ 34.
Rather, “[w]here proof other than an affidavit was offered to show what the proposed witness would have testified, we considered that evidence and determined it was insufficient to make a
¶ 25 Nonetheless, our supreme court stated clearly that “[i]n cases where a postconviction petitioner raises a claim of ineffective assistance based on counsel‘s failure to call a witness, an аffidavit from the proposed witness will be required if it is essential for the postconviction petitioner to make the necessary ‘substantial showing’ to support a claim of ineffective assistance.” Dupree, 2018 IL 122307, ¶ 34. “[I]n most cases where this type of claim is raised, without an affidavit, there can be no way to assess whether the proposed witness could have provided evidence that would have been helpful to the defense.” Id. The defendant‘s own affidavit setting forth what the potential witness would have testified to is not sufficient to make a substantial showing of ineffective assistance of counsel where the affidavit and record fail to establish whether or not “the proposed witnesses could have provided any information or testimony favorable to [the] defendant’ or the record does not contain “evidence that the exculpatory evidence actually exists.” See id. ¶ 37, citing People v. Guest, 166 Ill. 2d 381, 401-02 (1995). Regardless of a defendant‘s averment that a witness “could have provided helpful
¶ 26 Thus, our supreme court subsequently held unequivocally that,
“[a] claim that trial counsel failed to investigate and call a witness must be supported by an affidavit from the proposed witness. [Citation.] In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant.” People v. Enis, 194 Ill. 2d 361, 380 (2000), citing People v. Johnson, 183 Ill. 2d 176, 192 (1998); Thompkins, 161 Ill. 2d at 163.
Then, the Dupree court noted that where “the proposed witnesses that trial counsel allegedly failed to investigate or call to testify [are] generally the only source of th[e] new evidence, without their affidavits, there [i]s no proof thаt such evidence actually exist[s] or that it would have been helpful to the defense.” Dupree, 2018 IL 122307, ¶ 40.
¶ 27 In this case, defendant asserts that Green “could account for a substantial portion of the period overlapping the robbery” and would have testified that defendant “was with her prior to the arrest, and not at a convenience store or with a group of other men robbing Tigner” raising “the substantial likelihood that the result of the trial could have been different had she testified.” We agree. See generally People v. Campbell, 332 Ill. App. 3d 721, 737 (2002) (Knecht, J., dissenting) (“the failure to subpoena witnesses known to defense counsel who could contradict
¶ 28 Green‘s testimony is the only source of this evidence. Without her affidavit, there is no way to assess whether such testimony even exists. Thus, the failure to include Green‘s affidavit or to explain its absence was fatal to defendant‘s claim of ineffective assistance. Id. See also Thompkins, 161 Ill. 2d at 162-63 (where the defendant averred he was with two potential witnesses during the period when other evidence showed he was with another witness who provided inculpatory testimony as to the defendant‘s conduct, but the defendant “failed to submit affidavits from [the witnesses] themselves,” the court was “precluded from considering [the] issue further“). In this case, defendant‘s appointed postconviction counsel chose to stand on defendant‘s pro se unamended petition that alleged ineffective assistance of counsel based on the failure to call a witness who could have provided testimony to “counter a portion of the prosecution‘s case” (Thompkins, 161 Ill. 2d at 163) and failed to amend the petition to attach the witnesses’ affidavit or to explain its absence thus precluding consideration of the issue (id.). Our supreme court
“has consistently held that remand is required where postconviction counsel failed to fulfill the duties of consultation, examining the record, and amendment of the pro se petition, regardless of whether the сlaims raised in the petition had merit. [Citations.] In Jones, this court rejected the State‘s argument that the circuit court properly dismissed the petition because its allegations were insufficient to raise a constitutional issue and it could not be made sufficient through amendment. The court noted its prior holdings that it is error to dismiss a postconviction petition on
the pleadings where there has been inadequate representation by counsel.” Suarez, 224 Ill. 2d at 47.
¶ 29 Because of our decision on this issue we have no need to address defendant‘s additional claim that postconviction counsel failed to provide the required level of assistance by permitting the сourt to misconstrue a valid claim as waived.
¶ 30 Accordingly, for the foregoing reasons, we reverse the trial court‘s judgment and remand the cause with instructions for the trial court to appoint a new attorney to serve as defendant‘s postconviction attorney, for appointed counsel to comply with
¶ 31 CONCLUSION
¶ 32 For the following reasons, the circuit court of Cook County is reversed, and the cause is remanded with instructions.
¶ 33 Reversed and remanded with instructions.