People v. Bass

2022 IL App (1st) 210249

216 N.E.3d 1144

466 Ill.Dec. 311

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

v.Charlie BASS, Defendant-Appellant.

No. 1-21-0249

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 2, 2022

Dean C. Morask, of Park Ridge, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Matthew Connors, and Noah Montague, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant Charlie Bass appeals the second-stage dismissal of his postconviction petition alleging ineffective assistance of counsel in plea negotiations and at trial. Bass's chief claim is that his counsel never met with him privately and misinformed him about the State's evidence. Bass alleges that as a result of counsel's failure, he rejected a 20-year plea offer and, instead, proceeded to trial where a jury found him guilty of first degree murder. The circuit court later sentenced Bass to 55 years in prison (30 years for first degree murder plus 25 years for personally discharging a firearm).

¶ 2 Because we conclude that Bass has alleged a substantial showing of a constitutional violation on his claim related to counsel's failure to privately consult and to inform him of the evidence against him, we reverse the dismissal of those claims and remand for an evidentiary hearing. As to the other claim dismissed, we affirm.

¶ 3 I

¶ 4 On the afternoon of July 26, 2009, Netisha Stroger overheard her live-in boyfriend, Charlie Bass, talking on the phone with his other girlfriend, Rita Mullins. As it turns out, Mullins would visit Bass almost every day while Stroger was at work. Stroger told Bass that she would not write, call, or visit him in jail on his pending burglary case or send him money.

¶ 5 That evening, Bass went out with his cousin, Tierre Randle, and together they spent the evening drinking and driving around Chicago's west side. When Bass returned home, he said he found Stroger unconscious on the floor of the locked apartment, bleeding from the mouth and nose. Stroger had been shot.

¶ 6 Bass made three phone calls to 911 starting around 3:15 a.m. Curiously, phone records show that Bass called Randle (at 3:12 a.m. and 3:14 a.m.) before making the first call to 911. When Chicago police arrived around 3:25 a.m., Randle was sitting in a white Cadillac parked in the alley behind the apartment.

¶ 7 Surveillance footage of imperfect quality from area security cameras showed a light color vehicle arriving in the alley at 2:45 a.m. A person exited the passenger side of the vehicle and ran toward the Bass-Stroger apartment. At 3:15 a.m., surveillance footage also showed that the back lights of the Dodge Charger that Bass shared with Stroger flashed as if activated by a remote. A person could be seen approaching the driver's side door and then proceeding toward the apartment.

¶ 8 Later that day, Stroger's sister found a handgun underneath the driver's seat of the Dodge Charger. Testing confirmed that the bullet that killed Stroger came from that gun. Bass's left hand tested positive for gunshot residue.

¶ 9 Based on this and other evidence, a jury convicted Bass of first degree murder. 720 ILCS 5/9-1 (West 2008). The circuit court sentenced Bass to 30 years in prison for first degree murder plus 25 years for personally discharging a firearm, for a total sentence of 55 years. On direct appeal, we affirmed. People v. Bass , 2015 IL App (1st) 130904-U.

¶ 10 Bass subsequently petitioned for postconviction relief, asserting ineffective assistance of counsel. 725 ILCS 5/122-1 (West 2014). The circuit court advanced his petition to the second stage, and the State moved to dismiss. After briefing and argument, the circuit court dismissed the petition, and this timely appeal followed. Ill. S. Ct. Rs. 606, 651 (eff. July 1, 2017).

¶ 11 II

¶ 12 Bass contends that the circuit court erred in dismissing his petition at the second stage because he properly alleged two grounds for ineffective assistance of counsel. First, he contends that trial counsel's failure to consult with him privately resulted in a lack of meaningful discussion regarding the State's evidence. He asserts that counsel misinformed him about the order of the phone calls to 911 and mischaracterized the significance of Mullins's testimony. This caused him to turn down a plea offer from the State. Second, Bass challenges counsel's failure to call Grace Ross at trial.

¶ 13 The Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2014)) provides a means for individuals to assert that their criminal convictions were the result of a substantial denial of their rights under the state or federal constitutions.

People v. Hodges , 234 Ill. 2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) (citing 725 ILCS 5/122-1 et seq. (West 2006)).

¶ 14 In a noncapital case, a postconviction proceeding contains three stages. People v. Tate , 2012 IL 112214, ¶ 9, 366 Ill.Dec. 741, 980 N.E.2d 1100. At the first stage, the court must determine whether the petition is " ‘frivolous or is patently without merit.’ " Hodges , 234 Ill. 2d at 10, 332 Ill.Dec. 318, 912 N.E.2d 1204 (quoting People v. Edwards , 197 Ill. 2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001), and citing 725 ILCS 5/122-2.1(a)(2) (West 2006)). If the petition survives the first stage, it then moves to the second stage, where the circuit court must determine whether the petition makes "a substantial showing of a constitutional violation." Edwards , 197 Ill. 2d at 245-46, 258 Ill.Dec. 753, 757 N.E.2d 442 (citing People v. Coleman , 183 Ill. 2d 366, 381, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998) ). The State may then file a motion to dismiss, and the court may hold a hearing on that motion. People v. Johnson , 2021 IL 125738, ¶ 27, 450 Ill.Dec. 916, 182 N.E.3d 728. At the third stage, the trial court conducts an evidentiary hearing. People v. Makiel , 358 Ill. App. 3d 102, 104, 294 Ill.Dec. 319, 830 N.E.2d 731 (2005) (citing 725 ILCS 5/122-6 (West 2000) ). When a postconviction petition is dismissed without an evidentiary hearing, the trial court's decision is reviewed de novo. People v. Jones , 2021 IL App (1st) 182392, ¶ 39, 457 Ill.Dec. 569, 195 N.E.3d 705.

¶ 15 In evaluating a motion to dismiss, the trial court is concerned only with determining whether the petitioner's allegations sufficiently show a constitutional infirmity that would necessitate relief under the Post-Conviction Hearing Act. 725 ILCS 5/122-2 (West 2014). "[A]ll well-pleaded facts that are not positively rebutted by the trial record are to be taken as true." (Internal quotation marks omitted.) People v. Snow , 2012 IL App (4th) 110415, ¶ 15, 358 Ill.Dec. 117, 964 N.E.2d 1139.

¶ 16 Here, Bass argues that he was denied effective assistance of counsel in violation of the sixth amendment. See U.S. Const., amend. VI. Under the familiar standard for evaluating claims of ineffective assistance established in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that counsel's performance was deficient and that the defendant suffered prejudice as a result. To establish deficient performance, the defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

¶ 17 To establish prejudice under Strickland , "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. In the context of a plea, our supreme court has held that the defendant "must establish that there is a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer." People v. Hale , 2013 IL 113140, ¶ 18, 374 Ill.Dec. 912, 996 N.E.2d 607.

¶ 18 A. Counsel's Failure to Conduct a Private Consultation

¶ 19 Bass alleges that his trial counsel never held a private consultation with him—either in person or over the phone. All discussions between Bass and counsel took place in the holding cell behind Judge Kazmierski's courtroom, with other detainees present. Bass contends that this failure led him to be misinformed regarding the evidence against him: (1) counsel told him that he phoned 911 before he phoned his cousin when, in fact, Bass phoned his cousin twice before calling 911, and (2) counsel mischaracterized the significance of Mullins's likely testimony by describing it as "more helpful than hurtful."

¶ 20 A hallmark of the attorney-client relationship in our adversarial system is full and open communication between a client and his lawyer. This relationship of trust and confidence allows the client to obtain informed legal advice, and it provides the attorney with the information necessary to provide competent representation. Virtually every role a lawyer fulfills depends on communication with the client, be it as an advisor, an advocate, a negotiator, or an evaluator. Ill. R. Prof'l Conduct (2010), Preamble, ¶ 2 (eff. Jan. 1, 2010). The Illinois Rules of Professional Conduct further amplify the need for communication and confidentiality. Ill. R. Prof'l Conduct (2010) R. 1.4 cmt. 1 (eff. Jan. 1, 2016) ("Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation."); R. 1.6(e) (eff. Jan. 1, 2016) ("A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.").

¶ 21 Running hand in glove with these professional duties is the attorney-client privilege, the oldest of the common law evidentiary privileges. 8 John H. Wigmore, Evidence in...