People v. Gwinn

2015 IL App (2d) 130193-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST E. GWINN, Defendant-Appellant.

No. 2-13-0193

No. 2-13-1113 cons.

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

May 26, 2015

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 Lake County.

No. 01-CF-879

Honorable John T. Phillips, Judge, Presiding.

JUSTICE SPENCE delivered the judgment of the court.

Justice Hutchinson concurred in the judgment.

Justice Zenoff dissented.

ORDER

¶ 1 Held: (1) The trial court erred in dismissing defendant's postconviction petition, which alleged that trial counsel was ineffective for failing to call certain witnesses, as the witnesses' affidavits, which had to be taken as true, were potentially exonerating; (2) defendant was entitled to a $1,575 credit against his fine, to reflect the 315 days he spent in presentencing custody.

¶ 2 In this consolidated appeal, defendant, Ernest E. Gwinn, appeals from the second-stage dismissal of his postconviction petition and from the denial of his motion for leave to file a successive postconviction petition. Defendant asks that we reverse the dismissal and remand the cause for an evidentiary hearing. Defendant also asks that we award him $1,575 credit againsthis fines. For the reasons that follow, we reverse the dismissal of defendant's postconviction petition and remand for further proceedings, and we modify the judgment to reflect a $1,575 credit.

¶ 3 I. BACKGROUND

¶ 4 Following a jury trial, defendant was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2000)) and sentenced to 31 years in prison. Defendant appealed, and we reversed and remanded for a new trial. People v. Gwinn, No. 2-04-0099 (2006) (unpublished order under Supreme Court Rule 23).

¶ 5 On remand, defendant elected a bench trial. The trial court found defendant guilty and sentenced him to 25 years in prison. Defendant appealed, and we affirmed. People v. Gwinn, 2011 IL App (2d) 090138-U. The evidence presented at defendant's bench trial was set out in our decision affirming defendant's conviction. A summary of the evidence relevant for purposes of the present appeal follows.

¶ 6 Detective Vince Nichols testified that, on the day of the incident, March 14, 2001, he worked as an agent with the Metropolitan Enforcement Group. That evening, Nichols interviewed Tony Robinson, an informant who had agreed to assist with a narcotics investigation, at the sheriff's department. Nichols observed Robinson use his personal cell phone to place a call to a preprogrammed number from the phone's contact list, shown as "Gene." Thereafter, Robinson told him that: he had just spoken with Gene and ordered four ounces of cocaine; Gene had agreed to deliver the cocaine to Robinson; and Gene wanted Robinson to call back in about 40 minutes. The court admitted the content of the conversation to show the course of the investigation.

¶ 7 Nichols testified further that, when Robinson called Gene back, Nichols observed Robinson again scroll through the contact list to the name Gene and push the send button. Thereafter, Robinson informed Nichols that Gene told him that he would be at the Walgreens at Lewis and Belvidere in Waukegan in about 15 minutes. Robinson also told him that Gene was a black male in his 30s with tight braided hair, that Gene drove a gold Dodge four-door, and that Gene usually traveled with his girlfriend. This testimony was admitted to show the course of the investigation.

¶ 8 Nichols further testified that he relayed this information to his supervisor, Kevin Grampo, and that agents set up surveillance near Walgreens. Because no vehicle or person matching the above description showed up at Walgreens, Robinson made a third phone call. Nichols saw Robinson scroll through the contact list to the name Gene and push the send button. Nichols saw Robinson have a phone conversation. Robinson advised Nichols that Gene was minutes away from Walgreens.

¶ 9 Police officer Tim Gretz was one of the officers conducting surveillance that night; he sat in an unmarked squad car in the Walgreens parking lot. Around 11:30 p.m., Gretz saw a gold, four-door Dodge drive slowly through the parking lot, flashing its lights. Gretz did not see anyone in the car other than the driver. The Dodge did not stop but exited the parking lot, driving south on Lewis. Shortly thereafter, Gretz was instructed by radio to look for a 5' 2" black female in her 20s. Other officers had stopped the Dodge and recovered a purse, which led them to believe that a female was involved and in the vicinity of the Walgreens. Gretz then drove to the Home Depot parking lot across the street and saw a female matching that description near the entrance to the Home Depot.

¶ 10 Officer Brian Peters, also part of the surveillance team, was parked in an unmarked car in the Home Depot parking lot. Peters learned by radio that the Dodge was driving south on Lewis. He located the vehicle, observed it flash its lights several times, and effected a traffic stop. Defendant, the driver and only person in the car, provided identification upon request.

¶ 11 Police officer John Willer arrived at the scene where defendant was stopped. When he asked defendant his name, defendant answered "Ernest Gwinn." When asked if he had a middle name, defendant replied "Eugene." Willer asked for proof of insurance, and defendant said that he did not have insurance because it was a rental car. Defendant gave Willer the rental agreement, which was in the name of "Shay Causey," whom defendant said was his girlfriend. Defendant was asked to exit the vehicle, and he complied while holding his cell phone. Defendant agreed to a pat-down and placed his cell phone on the trunk of the vehicle. No weapons or narcotics were found during the pat-down.

¶ 12 To test defendant's cell phone, Willer called Nichols to request that Robinson call Gene, "the subject we had gotten earlier the information about, who was supposed to have delivered the narcotics." Nichols, who was still at the police station with Robinson, watched Robinson scroll through his contacts to Gene and press the send button. Willer observed defendant's cell phone ring. This procedure was performed a second time, and defendant's cell phone rang again.

¶ 13 Defendant consented to a search of the vehicle, and Willer found a denim purse on the floor of the passenger seat. Inside the purse was a driver's license belonging to "Quinesha Roshay Causey." When asked whom the driver's license belonged to, defendant answered that it belonged to his girlfriend, who was at home in Zion. Defendant further stated that Causey knew that he was driving her vehicle.

¶ 14 Police officer Chad Roszkowiak testified that he retrieved Causey's driver's license from Willer. He then drove to Home Depot to see whether the license belonged to the female found near the entrance to Home Depot. It was a match; the female at Home Depot was Causey. After Roszkowiak noticed a bulge in the crotch area of Causey's pants, she pulled out a black knit glove from her groin area. Inside the glove was a clear plastic bag containing cocaine.

¶ 15 When Willer learned from the other officers that they had found Causey at the Home Depot, he relayed this information to defendant. Defendant then denied knowing Causey.

¶ 16 The State rested, and defendant did not present any witnesses.

¶ 17 The trial court found defendant guilty of possessing the cocaine with the intent to deliver. In reaching its decision, the court stated that it "considered only the evidence received in this case for the substantive purpose, if it was received as substantive evidence, and I did not consider any evidence that was allowed over objection for any purpose other than the limited purpose that I permitted it to be heard." Id. ¶ 19. In particular, the court noted that "the police were at the area of Walgreens at Lewis and Belvidere based upon what they were told was arranged by an informant. I have not considered in any way what was said but only that they were there based upon information that they were investigating." Id. The court went on to say that its guilty finding was based on the following evidence: the police located a particular vehicle that entered the parking lot of Walgreens; the vehicle drove slowly and did not stop but flashed its lights; the vehicle passed by the Home Depot where Causey was found standing at the entrance, despite the store being closed; defendant, after being stopped, said that his middle name was Eugene and provided the officer with a rental agreement in Causey's name; defendant told the officer that Causey was his girlfriend and that she knew that he was driving the vehicle; defendant's cell phone rang both times Nichols observed Robinson call Gene on his cell phone; the open purse inthe vehicle contained Causey's driver's license; officers at Home Depot observed a bulge in Causey's pants; and Causey handed over a glove that contained a plastic bag with cocaine.

¶ 18 On appeal, defendant argued that the trial court erred in admitting hearsay testimony from Nichols about the substance of his conversation with Robinson and in considering unreliable hearsay testimony at sentencing and that his trial counsel was ineffective for failing to object to hearsay testimony and for failing to move for a substitution of judges. Id. ¶ 1. We held that the admission of the hearsay testimony was harmless error, that the trial court considered only relevant and reliable evidence at the sentencing hearing, and that trial counsel was not ineffective. Id. ¶¶ 40, 51, 57

¶ 19 On May 29, 2012, defendant's newly retained counsel, Thomas Brandstrader, filed a petition for postconviction relief. The petition alleged a claim of actual innocence. The petition also alleged that defendant was denied the...