People v. Cook

2019 IL App (4th) 170206-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. SHITAVIOUS J. COOK, Defendant-Appellant.

NO. 4-17-0206

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 22, 2019

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Macon County

No. 11CF1257

Honorable James R. Coryell, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Cavanagh and Harris concurred in the judgment.

ORDER

¶ 1 Held: Pursuant to Anders v. California, 386 U.S. 738 (1967), the appellate court granted counsel's motion to withdraw because no meritorious issues could be raised on appeal.

¶ 2 This case comes to us on the motion of the Office of the State Appellate Defender (OSAD) to withdraw as counsel. In December 2016, defendant, Shitavious J. Cook, filed a postconviction petition raising several issues. The trial court summarily dismissed the petition, and defendant appealed. In December 2018, OSAD filed a motion to withdraw. In its brief, OSAD contends that an appeal of this case presents no potentially meritorious issues for review. We agree, grant OSAD's motion to withdraw as counsel, and affirm the trial court's judgment.

¶ 3 I. BACKGROUND

¶ 4 A. Procedural History

¶ 5 In September 2011, the State charged defendant with first degree murder, attempted murder, and aggravated battery with a firearm. For the next few years, defendant's case was delayed while defendant cooperated as a witness in other cases for the State. In June 2014, the State dismissed the first degree murder charge and added a charge of dismembering a human body.

¶ 6 On January 16, 2015, as part of a negotiated plea agreement, defendant pleaded guilty to attempted murder (720 ILCS 5/8-4(a), 9-1(a) (West 2010)) and dismembering a human body (id. § 5/12-20.5(a)) in exchange for a sentence of 12 years and 10 years, respectively, with the sentences to run consecutively. As part of the agreement, the State dismissed all other pending charges against defendant. The trial court admonished defendant that if he wished to appeal, he was required to file a motion in the trial court requesting the court to vacate the judgment and for leave to withdraw the guilty plea within 30 days of the date on which the sentence was imposed and informed him that failure to raise an issue in such a motion would result in waiver of the issue. Defendant stated that he understood these admonishments.

¶ 7 On January 22, 2015, defendant pro se filed a "Notice to Appeal." Then, on February 27, 2015, defendant filed a "Motion to Withdraw Guilty Plea and Appointment of Counsel" in the trial court, claiming he pleaded guilty because his counsel provided him with "incorrect information." In response, the State filed a motion to dismiss in which it argued defendant's motion to withdraw was untimely because it was not filed within 30 days of his guilty plea. In December 2015, the trial court granted the State's motion to dismiss.

¶ 8 B. The Postconviction Petition

¶ 9 In January 2017, defendant filed a postconviction petition which consisted essentially of two arguments: (1) defendant's attorneys provided ineffective assistance of counsel which deprived him of the opportunity to make an informed decision regarding the plea offer and (2) defendant should have been able to withdraw his guilty plea due to counsel's errors and thetrial court's improper admonitions. Regarding his ineffective assistance of counsel claims, defendant asserted that his trial counsel failed to (1) adequately investigate his case, (2) adequately communicate with defendant, (3) discuss certain mitigating factors with the State during plea negotiations, and (4) order a psychiatric evaluation. Defendant also claimed that due to his counsel's ineffectiveness, his guilty plea was not knowing and voluntary.

¶ 10 In February 2017, the trial court summarily dismissed defendant's postconviction petition. In its written order, the court explained that defendant did not specify which documents trial counsel should have provided him, which witnesses trial counsel should have interviewed, or which mental health issues affected him. In addition, the court observed that defendant acknowledged in his affidavit that he committed the acts for which he was convicted and that his complaints were due to the fact that "he didn't like the deal his lawyers made." Accordingly, the court concluded that defendant's petition was frivolous and patently without merit.

¶ 11 C. The Current Appeal and OSAD's Motion To Withdraw

¶ 12 In March 2017, defendant filed a notice of appeal, and OSAD was appointed to represent defendant on appeal. In December 2018, OSAD filed a motion to withdraw and served a copy on defendant. Defendant has not filed a response.

¶ 13 II. ANALYSIS

¶ 14 In its brief, OSAD addresses the arguments raised by the defendant that trial counsel was ineffective and that he should have been able to withdraw his guilty plea. In addition, OSAD offers two potential arguments that defendant could raise: (1) the trial court failed to comply with the procedural requirements of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1 (West 2016)) and (2) defendant's guilty plea was involuntary because he was incompetent or unfit. However, OSAD contends that appeal of this case presents no potentiallymeritorious issues for review. We agree with OSAD, grant OSAD's motion to withdraw as counsel, and affirm the trial court's judgment.

¶ 15 We proceed first by addressing whether dismissal of defendant's postconviction petition was procedurally proper under the Act. Next, we address whether defendant's guilty plea was involuntary because he was incompetent or unfit. Then, we address whether defendant's trial counsel was arguably ineffective for failure to adequately communicate, adequately investigate, negotiate a more favorable plea, or request a psychiatric evaluation. Finally, we address whether defendant should have been allowed to withdraw his guilty plea due to receiving improper admonishments from the trial court or the ineffectiveness of counsel.

¶ 16 A. The Standard of Review and Applicable Law

¶ 17 The United States Supreme Court has set forth the procedures to be followed for an appellate attorney to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967); People v. Mares, 2018 IL App (2d) 150565, ¶ 6, 98 N.E.3d 554. Counsel's request to withdraw must be accompanied by a brief referring to anything in the record that could support an appeal. People v. Meeks, 2016 IL App (2d) 140509, ¶ 10, 51 N.E.3d 1109. After identifying issues that counsel could conceivably raise, counsel must then explain why these potential arguments are without merit. Id. A copy of this motion must be provided to the client, who will then be given an opportunity to respond to the motion to withdraw. Id. The appellate court will then review the record to determine whether the available arguments are wholly without merit. Id.

¶ 18 The Act provides a criminal defendant the means to redress substantial violations of his constitutional rights that occurred in his original trial or sentencing. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS 5/122-1 (West 2016). The Act contains a three-stage procedure for relief. People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d615; 725 ILCS 5/122-2.1 (West 2016). At the first stage, the trial court shall, within the first 90 days after the petition is filed and docketed, dismiss a petition summarily if the court determines it is "frivolous or is patently without merit ***." 725 ILCS 5/122-2.1(a)(2) (West 2016).

¶ 19 A petition may be dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. Allen, 2015 IL 113135, ¶ 25. Stated another way, "[a] post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the 'gist of a constitutional claim.' " People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996)). An appellate court reviews the first-stage dismissal of a postconviction petition de novo. People v. Couch, 2012 IL App (4th) 100234, ¶ 13, 970 N.E.2d 1270.

¶ 20 B. Procedural Error Under the Post-Conviction Hearing Act

¶ 21 In its motion, OSAD first argues that dismissal of the postconviction petition was procedurally proper and any argument to the contrary would be without merit. We agree.

¶ 22 Here, defendant's postconviction petition was filed and docketed on January 3, 2017, and the trial court dismissed the petition on February 22, 2017, well within the 90 days prescribed by the Act. There is no evidence in the record that the State offered input regarding the merits of the petition. Dismissal of the petition was thus procedurally proper and any argument to the contrary would be without merit.

¶ 23 C. Whether Defendant's Guilty Plea Was Involuntary

Because He Was Incompetent or Unfit

¶ 24 OSAD next argues that defendant's postconviction petition provides no arguable basis that his guilty plea was involuntary because he was incompetent or unfit. Defendant argued that he was not competent enough to understand the proceedings and plead guilty. OSADcontends that defendant's claim is unsupported by the trial record or supplemental information and is thus without merit. We agree.

¶ 25 A defendant is unfit to stand trial if due to a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in the defense. People v. Brown, 236 Ill. 2d 175, 186, 923 N.E.2d 748, 755 (2010). If a bona fide doubt of the defendant's fitness is raised, the trial court must hold a fitness hearing. Id. Several factors may be considered in determining whether a bona...