THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ARTURO WILLIAMS, Petitioner-Appellant.
No. 1-19-1615
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
December 17, 2021
2021 IL App (1st) 191615
SIXTH DIVISION
OPINION
¶ 1 Petitioner, Arturo Williams, appeals from the circuit court of Cook County‘s summary dismissal of his pro se postconviction petition. He argues his petition alleged arguable claims of ineffective assistance of trial and appellate counsel for failing to argue that an aggravated vehicular hijacking conviction for an offense he committed as a juvenile could not be used as a qualifying predicate offense for an armed habitual criminal conviction. The State addresses the merits of petitioner‘s argument while also asserting petitioner forfeited the issue he raises on appeal. We affirm the circuit court‘s judgment.
I. BACKGROUND
¶ 3 In 2014, petitioner was charged with one count of armed habitual criminal (AHC), two counts of unlawful use of a weapon by a felon (UUWF), and six counts of aggravated UUWF. At his bench trial, the State introduced evidence that, while being chased by police, defendant pulled a loaded handgun from his waistband and threw it over his shoulder. At trial, the State introduced certified prior convictions for aggravated vehicular hijacking (case No. 00 CR 17676 (01)) and manufacture/delivery of a controlled substance (case No. 10 CR 20465 (01)). The circuit court found petitioner guilty of AHC and of one count of UUWF. On direct appeal, we affirmed petitioner‘s AHC conviction over his contention that the circuit court improperly limited his cross-examination of the State‘s eyewitness, and we vacated the UUWF conviction under the one-act, one-crime rule. People v. Williams, 2018 IL App (1st) 160469-U.
¶ 4 Petitioner filed a pro se postconviction petition and made the following allegations relevant to this appeal. Petitioner was 32 years old at the time of trial on the AHC, aggravated UUWF, and UUWF charges. His conviction for aggravated vehicular hijacking was for an offense committed in 2000, when he was 17 years old. The State did not prove all the essential elements of AHC because his aggravated vehicular hijacking conviction was more than 10 years old and could not be used to support his AHC conviction under People v. Montgomery, 47 Ill. 2d 510 (1971). His trial counsel was ineffective for failing to raise any argument under Montgomery and to preserve the issue for appeal, and his appellate counsel on direct appeal was ineffective for failing to argue trial counsel‘s ineffective assistance.
¶ 5 The circuit court summarily dismissed the petition in a written order, finding the claims raised in the petition frivolous and patently without merit. Petitioner filed a timely notice of appeal.
II. ANALYSIS
¶ 7 On appeal, petitioner argues his pro se petition sufficiently stated the gist of arguable claims of ineffective assistance of trial and appellate counsel for failing to
¶ 8 At the first stage of proceedings under the Post-Conviction Hearing Act, a pro se petition must present the gist of a constitutional claim. People v. Boclair, 202 Ill. 2d 89, 100 (2002). At the first stage, a pro se petitioner is not required to allege facts supporting a constitutional claim and the petition should be given a liberal construction. People v. Thomas, 2014 IL App (2d) 121001,
¶ 60. “Where defendants are acting pro se, courts should review their petitions ‘with a lenient eye, allowing borderline cases to proceed.’ ” People v. Hodges, 234 Ill. 2d 1, 21 (2009) (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (1983)). In the context of a claim of ineffective assistance of counsel, the petition must set forth an arguable claim that counsel‘s performance was constitutionally deficient, and an arguable claim that petitioner was prejudiced. People v. Tate, 2012 IL 112214, ¶ 19. Summary dismissal is appropriate where the claims in the petition are frivolous or patently without merit. Hodges, 241 Ill. 2d at 11-12. We review de novo the circuit court‘s summary dismissal of a postconviction petition. Tate, 2012 IL 112214, ¶ 10.
A. Forfeiture
¶ 10 The State argues petitioner forfeited his specific appellate claim because he did not raise it in his petition. The petition asserted that trial and appellate counsel were ineffective because they failed to challenge the use of the aggravated vehicular hijacking conviction as a qualifying predicate conviction for the AHC offense under Montgomery because the conviction was more than 10 years old. On appeal, petitioner argues his trial and appellate counsel were ineffective for not challenging the use of the aggravated vehicular hijacking conviction as a qualifying predicate offense for the AHC offense because, under the amendment to the Juvenile Court Act and the reasoning Miles, petitioner was a juvenile at the time of the aggravated vehicular
¶ 11 The State is generally correct that “a claim not raised in a petition cannot be argued for the first time on appeal.” People v. Jones, 213 Ill. 2d 498, 505 (2004) (citing People v. McNeal, 194 Ill. 2d 135, 147 (2000); People v. Davis, 156 Ill. 2d 149, 158 (1993)). But here, petitioner asserts in his petition and in this court that his trial and appellate counsel were ineffective for failing to
challenge the use of his prior aggravated vehicular hijacking conviction as a qualifying predicate offense for his AHC offense. We acknowledge that petitioner has framed his appellate argument differently than he did in his petition, but the issue is the same: whether his trial and appellate counsel were ineffective for not raising any argument that his prior conviction could not be used as a qualifying predicate offense for the ACH offense because of when the ACH offense occurred.
¶ 12 In Jones, the petitioner‘s petition contained the bare assertion that he was denied his right to effective assistance of counsel, which was not reflected on the record of his direct appeal. Jones, 213 Ill. 2d at 502. The circuit court dismissed the petition. On appeal, the petitioner argued for the first time that he had not been properly admonished about his guilty plea under Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001). Id. at 508. The supreme court found the petitioner could not raise such a claim for the first time on appeal because it was not contained in his petition. Id. at 508. The court also explained that the appellate court is not free to excuse a petitioner‘s forfeiture (id. at 507), and that the proper avenue of raising the issue is to seek leave to file a successive postconviction petition (id. at 509). But here, unlike in Jones, petitioner did not make a bare assertion of ineffective assistance of counsel. Instead, he alleged he was 17 years old at the time of the aggravated vehicular hijacking offense, and his counsel was ineffective for failing to challenge the use of that conviction as a predicate felony for his armed habitual criminal charge. The petitioner in Jones attempted to argue a claim on appeal that found no support in his petition. That is not the case here.
¶ 13 We find Thomas instructive. There, the petitioner was found guilty of first degree murder. We affirmed on direct appeal over the petitioner‘s argument that the trial court erred by excluding an incarcerated minor‘s statement—“I did it“—to police, which the minor later recanted. People v. Thomas, 2011 IL App (2d) 091061-U. Thomas filed a postconviction petition asserting that his
appellate counsel on direct appeal was ineffective by failing to argue that his trial counsel was ineffective because the minor confessed to police and to a jail chaplain, and trial counsel “should have taken additional steps to ensure that the confession was admitted.” Thomas, 2014 IL App (2d) 121001, ¶ 2. The circuit court summarily dismissed the petition. Id. ¶ 3. On appeal, the petitioner argued his “appellate counsel was ineffective for failing to argue that the trial court erred in excluding [the minor‘s] conversations with the chaplain and for failing to argue that the chaplain‘s testimony would have corroborated [the minor‘s] statement to the detectives.” (Emphasis in original.) Id. ¶ 3. The State
“On appeal from the summary dismissal of defendant‘s pro se petition, counsel needed to tailor the arguments to the petition‘s factual allegations, which caused a modest departure from the legal conclusion contained in the petition. The present arguments are not forfeited, because the assertions in the petition need bear only ‘some relationship’ to the arguments raised on appeal.” Id. ¶ 87 (citing People v. Mars, 2012 IL App (2d) 110695, ¶ 32).
¶ 14 The State argues Thomas is distinguishable because there, we were “concerned with interpreting the defendant‘s allegations as to whether it constituted trial counsel error, ineffective assistance of trial counsel[,] or ineffective assistance of appellate counsel.” The State relies on
People v. Devin Reed, 2014 IL App (1st) 122610. There, the petitioner‘s postconviction petition asserted in part that his appellate counsel was ineffective for failing to challenge the admissibility of an alleged inculpatory statement on hearsay grounds (id. ¶ 28), but he argued on appeal that his appellate counsel was ineffective for failing to challenge the admissibility of the inculpatory statement on grounds that police violated his fifth amendment rights to counsel and to remain silent (id. ¶ 41). We found the petitioner forfeited his appellate argument, and explained
“Although both claims nominally address Reed‘s statement to the police, the claim in the petition is that Reed‘s ‘alleged’ statement may not have been his statement at all (or not inculpatory), whereas the claim asserted on appeal is that Reed provided a statement, but the statement was illegally obtained, regardless of whether it was inculpatory. These arguments are not necessarily inconsistent, but they are distinct from each other.” Id. ¶ 59.
¶ 15 We find Devin Reed distinguishable. The nature of the petition‘s claim in Devin Reed rested on the factual premise that the petitioner may not have made the statement at all, while his appellate claim was that he did make the statement, but that his fifth amendment rights were violated. As we found, “the respects in which Reed allegedly received ineffective assistance of appellate counsel are distinctly different.” Id. ¶ 60. Here, Williams‘s petition asserted he was 17 years old at the time of the aggravated vehicular hijacking offense and his trial and appellate counsel were ineffective for failing to argue that the conviction could not serve as a qualifying predicate felony for the AHC offense. The factual basis of petitioner‘s claim has not changed between his petition and his argument on appeal, and his claim is sufficiently similar: ineffective assistance of trial and appellate counsel for failing to challenge the use of a prior conviction to support an AHC conviction. Accordingly, we find petitioner has not forfeited his appellate claim.
B. Sufficiency of Petition
¶ 17 We now turn to the merits of petitioner‘s appeal. He asserts his 2000
¶ 18 We first examine whether petitioner stated an arguable claim that his trial and appellate counsel‘s performance fell below an objective standard of reasonableness. People v. Hodges, 234 Ill. 2d 1, 17 (2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To establish deficient performance, petitioner “must show that his counsel‘s performance was so inadequate
that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment.” People v. Smith, 195 Ill. 2d 179, 188 (2000). “Counsel‘s performance is measured by an objective standard of competence under prevailing professional norms.” Id. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Strickland, 466 U.S. at 689. “[T]he relevant focus under Strickland is on the state of the law at the time of defendant‘s trial and appeal,” and whether a reasonable attorney should have taken a particular course of action. People v. Cathay, 2012 IL 111746, ¶ 26.
¶ 19 Here, much of petitioner‘s argument on the issue of counsels’ allegedly deficient performance is devoted to showing the State did not prove petitioner guilty of AHC beyond a reasonable doubt. He cites People v. Wright, 111 Ill. 2d 18, 31 (1986) for the proposition that “failing to make an argument because of a mistake about the controlling law is deficient performance.” He essentially argues that his trial and appellate counsel misunderstood the “controlling law” by failing to challenge the use of his prior aggravated vehicular hijacking conviction. Petitioner expressly—and exclusively—relies on the reasoning in Miles to show what the controlling law was at the time of his 2014 conviction.
¶ 20 In Miles, the defendant was convicted of burglary and the circuit court sentenced him as a Class X offender because
Unified Code of Corrections provided that when a defendant is over the age of 21 and is convicted of a Class 1 or Class 2 felony, Class X sentencing is mandatory if the defendant had been twice convicted “of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class felony.”
¶ 21 Miles rejected the State‘s argument that defendant‘s 2006 conviction fell within the “prior conviction” exception that could be used to enhance a sentence (see People v. Jones, 2016 IL 119391, ¶ 42 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000))) because section 5-4.5-95(b) was “silent with regard to adjudications of delinquency.” Miles, 2020 IL App (1st) 180736, ¶ 14. Miles also rejected the State‘s reliance on People v. Banks, 212 Ill. App. 3d 105 (1991) and People v. Bryant, 278 Ill. App. 3d 578 (1996) for the proposition that, under the Habitual Criminal Statute, any conviction may be used as a former conviction. Miles reasoned that those cases “rested on the Banks court‘s finding that nothing in the Juvenile Court Act or the Criminal Code of 1961 indicated
that criminal convictions of a minor should be treated any differently than criminal convictions of an adult” (Miles, 2020 IL App (1st) 180736, ¶ 21), and both cases predated the 2016 amendments to the Juvenile Court Act (id.). Because the defendant‘s 2005 offense would have landed him in juvenile court, the offense “would have led to a juvenile adjudication rather than a Class 2 felony conviction” and was not an “offense now *** classified as a Class 2 or greater Class felony” that could be used for the purposes of Class X sentencing. Id. ¶ 22.1
¶
¶ 23 The Fourth District, however, reached a different conclusion in People v. Darius Reed, 2020 IL App (4th) 180533, ¶¶ 24-27, pet. for leave to appeal pending, No. 126750 (filed Dec. 15,
2020).3 There, the defendant, facing numerous criminal charges in different cases, entered into a global plea agreement. He agreed to plead guilty to one count of possession of a controlled substance with intent to deliver between 1 and 15 grams of cocaine (16 CF 807), a Class 1 felony, for an offense that occurred on June 21, 2016. Id. ¶ 3. He also agreed to plead guilty to possession of a controlled substance with intent to deliver and to being armed habitual criminal, both of which were Class X felonies. Id. ¶ 4. The plea agreement capped defendant‘s sentence at 20 years’ imprisonment, and provided that the Class X sentences would run concurrently and would run consecutive to the Class 1 sentence. Id. ¶ 4. At sentencing, the State and defense counsel agreed that the defendant was subject to Class X sentencing in 16 CF 807. The defendant had an extensive criminal background, including a burglary conviction for an offense he committed when he was 17 years old. Id. ¶ 7. The circuit court sentenced the defendant to eight years’ imprisonment in 16 CF 807, followed by consecutive nine-year prison terms for the Class X offenses. Id. The defendant moved to withdraw his guilty pleas. The circuit court denied the motion and the defendant appealed.
¶ 24 On appeal, Reed relied on Miles to argue, in relevant part, that he was not
on persons under 18 years of age should be considered juvenile adjudications” (id. ¶ 25 (citing
¶ 25 Here, petitioner tailors the reasoning in Miles to his situation and makes the following assertions. In 2014, the legislature changed the definition of juvenile to provide that, with specific exceptions, no minor under the age of 18 years old could be prosecuted under the criminal laws. See Pub. Act. 98-61 (amending
he was 17 years old. In October 2014, a 17-year-old arrested for aggravated vehicular hijacking with a dangerous weapon other than a firearm would not have been prosecuted in criminal court, and the charges would have proceeded through the juvenile court, resulting in a juvenile adjudication rather than a conviction. Furthermore, relevant here, the AHC statute in 2014 required prior convictions for “a forcible felony as defined by”
¶ 26 We do not agree with petitioner that his trial counsel or appellate counsel failed to provide objectively reasonable assistance by failing to advance arguments consistent with Miles. In 2014, the legislature amended section 5-120 to provide
“Proceedings may be instituted under the provisions of this Article concerning any minor who prior to his or her 18th birthday has violated or attempted to violate, regardless of where the act occurred, any federal, State, county or municipal law or ordinance. Except as provided in Sections 5-125, 5-130, 5-805, and 5-810 of this Article, no minor who was under 18 years of age at the time of the alleged offense
may be prosecuted under the criminal laws of this State.” Pub. Act. 98-61 § 5 (eff. Jan. 1, 2014) (amending
705 ILCS 405/5-120 ).
The legislature expressly stated: “The changes made to this section by this amendatory Act *** apply to violations or attempted violations committed on or after the effective date of this amendatory Act.”
¶ 27 After the amendment to the Juvenile Court Act and before Miles, a reasonable attorney would have been guided by the available caselaw examining the use of a minor‘s conviction in subsequent proceedings. In Fitzimmons v. Norgle, 104 Ill. 2d 369 (1984), our supreme court considered whether a criminal defendant, Christopher C. Borg, was eligible for probation under section 5-5-3(c)(2)(F) of the Code of Corrections (Ill. Rev. Stat. 1981 ch. ¶ 1005-3-3(c)(2)(F)).
Borg pleaded guilty to burglary. The State argued Borg was not eligible for probation because he previously pleaded guilty to a burglary offense he committed when he was 14 years old, which had been transferred to criminal court. Id. at 371-72. The trial judge sentenced Borg to probation, and the State sought a
¶ 28 In Banks, 212 Ill. App. 3d 105, the defendant was convicted of burglary and sentenced to life in prison as a habitual criminal based on four prior burglary convictions. On appeal, the defendant argued that some of those prior convictions were for offenses committed when he was 15 years old, and the circuit court‘s reliance on those convictions in sentencing him as a habitual criminal amounted to an impermissible double enhancement because he had been tried as an adult, which itself was a penalty enhancement. Id. at 106. We rejected that argument, explaining
“Any conviction may be used as a former conviction under the habitual criminal statute. No exception is made for convictions obtained while the defendant was a juvenile. We see no indication in the Juvenile Court Act or the Criminal Code of 1961 that criminal convictions obtained while the defendant is a minor should be treated any differently than criminal convictions of an adult. It seems to us that a conviction is a conviction. So the supreme court held in Fitzsimmons.” Id. at 107.
¶ 29 Likewise, in Bryant, 278 Ill. App. 3d at 587, we found the Habitual Criminal Act “unambiguously states that ‘[a]ny convictions’ may be used as a former conviction under the habitual criminal statute. [Citation.] This includes convictions obtained while a defendant was a juvenile.” While Fitzimmons, Banks, and Bryant all predated the 2014 amendment to the Juvenile Court Act, they are instructive as to what guidance was available to criminal defense attorneys regarding the use of a minor‘s conviction in later proceedings. While the Miles court observed that Fitzimmons, Banks, and Bryant all predated amendments to the Juvenile Court Act, those cases are representative of how courts treated a minor‘s conviction at the time of petitioner‘s trial and direct appeal.
¶ 30 We find petitioner has failed to adequately allege that his trial and appellate counsels’ failure to challenge the use of a conviction entered in 2000 when petitioner was 17 years old amounts to deficient performance. At the time of petitioner‘s 2015 trial and 2016 direct appeal, as evidenced by Fitzsimmons, Banks, and Bryant, case law squarely supported the principle that a conviction obtained when a criminal defendant was a minor could be used as a qualifying predicate offense, and that a conviction is a conviction, regardless of the criminal defendant‘s age. Despite the 2014 changes to the Juvenile Court Act—which did not proscribe using criminal convictions obtained against 17-year-olds for any purpose—we find that the state of law at the time of petitioner‘s trial, sentencing, and direct appeal did not require counsel to challenge the use of petitioner‘s 2000 aggravated vehicular hijacking
¶ 31 Furthermore, Miles and Gray do not control the outcome here. Notably, Miles was decided five years after petitioner‘s trial, and thus was not available to his trial or appellate counsel during trial or his direct appeal. Additionally, petitioner does not direct our attention to any appellate decision foreshadowing or anticipating the reasoning in Miles. The critical difference between this
case and Miles and its progeny is its procedural posture: this case is an appeal from the dismissal of a postconviction petition alleging ineffective assistance of counsel, while Miles and its progeny were direct appeals. Regardless of whether the reasoning set forth in Miles and followed by other panels of this court is correct—an issue our supreme court will resolve in due course (see Stewart, 2020 IL App (1st) 180014-U, ¶ 32, pet. for leave to appeal allowed, No. 126116 (Jan. 27, 2021))—our focus is on whether petitioner set forth an arguable claim that his trial and appellate counsel were ineffective at the time they represented petitioner. Given the state of the law at the time of petitioner‘s 2015 trial and his direct appeal filed in 2016, we find his petition did not set forth an arguable claim that the performance of his trial and appellate counsel was objectively unreasonable. The circuit court‘s judgment dismissing petitioner‘s postconviction is affirmed.
III. CONCLUSION
¶ 33 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 34 Affirmed.
People v. Williams, 2021 IL App (1st) 191615
No. 1-19-1615
Appellate Court of Illinois, First District
Hon. Peggy Chiampas, Judge, presiding.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CR 19719. Attorney For Appellant: James E. Chadd, Douglas R. Hoff, and Anna C. Carlozzi, of State Appellate Defender‘s Office, of Chicago, for appellant. Attorneys For Appellee: Kimberly M. Foxx, State‘s Attorney, of Chicago (Allen J. Spellberg, Brian A. Levitsky, and Hareena Meghani-Wakely, Assistant State‘s Attorneys, of counsel), for the People.