People v. Addison

2021 IL App (2d) 180545

174 N.E.3d 166

447 Ill.Dec. 475

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dion ADDISON, Defendant-Appellant.

No. 2-18-0545

Appellate Court of Illinois, Second District.

Opinion filed February 8, 2021

Rehearing denied March 4, 2021

James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of State Appellate Defender's Office, of Chicago, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Mary Beth Burns, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Dion Addison, appeals the second-stage dismissal of his petition filed under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)) in connection with his convictions of unlawful possession of a stolen motor vehicle ( 625 ILCS 5/4-103(a)(1) (West 2010)), possession of a converted motor vehicle (id. ), theft ( 720 ILCS 5/16-1(a)(1) (West 2010)), and forgery (id. § 17-3(a)(2)). He contends that his appointed postconviction counsel provided unreasonable assistance, leading to forfeiture of his postconviction claims and dismissal of his petition. Defendant specifically alleges that counsel failed to (1) submit defendant's affidavit swearing that his statements to the police were involuntary and (2) allege ineffective assistance of appellate counsel. We reverse and remand with directions to appoint new counsel and allow defendant to replead his postconviction petition.

¶ 2 I. BACKGROUND

¶ 3 Defendant was indicted on February 22, 2012, in connection with his use of counterfeit money to purchase a motorcycle. Defendant failed to appear for a September 6, 2012, status date and arrived late to the January 10, 2013, pretrial conference. The court admonished defendant that, if he failed to appear, he could be tried in absentia.

¶ 4 At the pretrial conference, defendant moved in limine to bar statements that he made to the police. He alleged in part that his confession to knowingly using counterfeit bills to purchase a motorcycle was in exchange for a promise from a United States Secret Service (Secret Service) special agent that he would release defendant if he confessed. Both the hearing on the motion and the first day of trial were set for January 14, 2013. Defendant failed to appear for the hearing, and the court granted the State's motion to try defendant in absentia.

¶ 5 At the hearing on the motion in limine , Special Agent Shannon McDowell testified that he spoke with defendant at the Geneva, Illinois, police station. McDowell read Miranda warnings (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ) to defendant, and defendant signed a waiver form. McDowell testified that he made no promises to defendant and did not tell him that he would not be charged if he confessed. After defendant made his statement, McDowell talked to defendant about the potential of working with the Secret Service. The Geneva police then asked McDowell for his recommendation regarding defendant's custody status. McDowell explained to them that defendant could be charged or instead released "if he was going to obtain further information or [if] he was going to assist [the Secret Service]." To McDowell's knowledge, defendant was released from custody.

¶ 6 Defense counsel did not present any evidence, noting that he was unable to do so because defendant was absent. Counsel argued that the fact that defendant was released from custody implied that he was promised release in exchange for his confession. The court denied the motion.

¶ 7 At the jury trial, the State presented evidence that defendant was involved in the purchase of a motorcycle using counterfeit money. McDowell testified about defendant's confession, which included information that defendant purchased counterfeit bills from a man in Chicago. McDowell acknowledged that he asked defendant to assist in obtaining additional counterfeit money from that source. McDowell stated that, before defendant's confession, they never discussed the possibility of defendant avoiding charges in exchange for cooperation. McDowell also acknowledged that defendant was ultimately charged because he failed to provide any information about the source.

¶ 8 Defendant presented no evidence and was found guilty. New counsel was appointed, who filed a posttrial motion that was denied. Defendant was sentenced in absentia. On June 1, 2013, defendant was arrested. He moved to reconsider the sentence—that motion was denied. On direct appeal, appellate counsel moved for a summary order to correct the mittimus to reflect two additional days of sentencing credit. Appellate counsel raised no other issues and no briefs were filed. The motion was unopposed, and we granted it in a minute order.

¶ 9 On March 25, 2015, defendant filed a pro se postconviction petition. In it, he alleged 16 issues, including arguments that (1) his trial counsel was ineffective for failing to investigate or present evidence in connection with the motion in limine , (2) trial counsel should have filed a motion to suppress earlier in the case, and (3) the trial court erred in denying the motion in limine. He also alleged that his appellate counsel was ineffective for failing to raise the issues. Defendant included an affidavit stating that he confessed because McDowell said that he would not be charged and would be released if he named the source of the counterfeit money.

¶ 10 The trial court advanced the petition to the second stage and appointed counsel. Postconviction counsel filed an amended petition (1) noting evidence that defendant gave multiple statements to the police and to McDowell and (2) alleging that trial counsel was ineffective for (a) failing to file a motion to suppress statements based on improper Miranda warnings; (b) failing to file a motion to suppress on the basis that the confession to McDowell was involuntary; (c) failing to object to expert testimony about the counterfeit money when no expert was disclosed; and (d) failing to challenge the sufficiency of the evidence when there was a discrepancy in the number of bills recovered, inventoried, and introduced into evidence. Counsel also alleged an error in the jury instructions. Counsel made no allegations regarding ineffective assistance of appellate counsel. Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), stating that she consulted with defendant to ascertain his contentions, examined the trial court file and record of proceedings, and made any amendments to the petition as necessary for an adequate presentation of defendant's contentions.

¶ 11 Counsel attached (1) McDowell's investigation report describing defendant's cooperation with the Secret Service, (2) defendant's signed Miranda waiver, and (3) a form showing that he refused to make a written statement. Counsel did not submit an affidavit from defendant.

¶ 12 The State moved to dismiss, arguing that defendant's claims were procedurally barred because they could have been raised on direct appeal. The State also argued that defendant failed to show that any of the claims had merit and noted that there was no affidavit from defendant disputing McDowell's testimony.

¶ 13 At the hearing, the court asked postconviction counsel why she did not believe that the issues could have been raised on direct appeal. Counsel replied that appellate counsel had told defendant that issues not argued at trial could not be raised on appeal. However, postconviction counsel told the court that she felt that trial counsel truly had been ineffective. The court then stated:

"I am just—I am just asking on the waiver argument.

Everything that has been presented by way of the amended PCP are arguments that I believe could have been made on direct appeal. Arguments that you have brought forth are all matters that were in the record.

So you don't have to have an answer. I just wondered if you wished to address it.

Okay. I understand."

Counsel responded: "Other than that perhaps there was the same oversight on the appellate level the trial counsel had."

¶ 14 The trial court granted the motion to dismiss. In a written order the court found, without elaboration, that defendant failed to make a substantial showing of a violation of a constitutional right. Defendant appeals.

¶ 15 II. ANALYSIS

¶ 16 Defendant contends that he did not receive reasonable assistance from his postconviction counsel when counsel (1) failed to file an affidavit from him supporting the allegations of the amended postconviction petition and (2) failed to allege ineffective assistance of appellate counsel. The State contends that defendant forfeited collateral review by failing to appear at trial and that he cannot show prejudice from any errors.

¶ 17 We first address the State's argument that defendant forfeited collateral review by failing to appear at trial. The State points to no relevant precedent for its assertion that "a defendant who waives his presence at trial also waives collateral review of any issue that could have been resolved had he appeared." The State offers the following statement, quoting from People v. Rogers , 2015 IL App (2d) 130412, ¶ 82, 400 Ill.Dec. 922, 49 N.E.3d 70 : " ‘[W]hen a defendant's trial and subsequent conviction [were] the result of his or her own decision ***, the defendant cannot claim the protection intended for those who attack their convictions on constitutional grounds.’ " The State edits the sentence from Rogers by removing text from the middle and the end. In light of the full text of the proposition, which we quote below (infra ¶ 18), Rogers is inapplicable.

¶ 18 In Rogers , the defendant pleaded guilty and later filed a postconviction petition that the court summarily dismissed. We held that defendant's petition set forth the gist of a claim of ineffective assistance of counsel and that the trial court's...