People v. Halerewicz

2017 IL App (4th) 160342-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. JOHN J. HALEREWICZ, Defendant-Appellant.

NO. 4-16-0342

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 29, 2017

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 Circuit Court of Sangamon County

No. 11CF594

Honorable Leslie J. Graves, Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court.

Justices Steigmann and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's second-stage dismissal of defendant's amended pro se postconviction petition.

¶ 2 In February 2012, a jury found defendant, John J. Halerewicz, guilty of driving while under the influence (DUI), aggravated DUI with a revoked license, and driving while his license was revoked. In April 2012, the trial court sentenced defendant to concurrent terms of 10 years' imprisonment for aggravated DUI and 3 years for driving while his license was revoked. Defendant filed a direct appeal, and this court affirmed his conviction and sentence. People v. Halerewicz, 2013 IL App (4th) 120388, 2 N.E.3d 333.

¶ 3 In September 2015, defendant filed an amended pro se postconviction petition. In January 2016, the trial court dismissed defendant's petition. The office of the State Appellate Defender (OSAD) was appointed to represent defendant on appeal. In October 2017, OSAD filed a motion to withdraw as defendant's counsel on appeal citing to Pennsylvania v. Finley, 481 U.S. 551 (1987). This court granted defendant leave to file a response to OSAD's motion by November 8, 2017. Defendant did not file a response. After reviewing defendant's pro se petition and the record in this case, we grant OSAD's motion to withdraw and affirm the trial court's second-stage dismissal of defendant's pro se amended postconviction petition.

¶ 4 I. BACKGROUND

¶ 5 In February 2012, a jury found defendant guilty of driving under the influence of alcohol (DUI), aggravated DUI with a revoked license, and driving while his driver's license was revoked. His DUI and aggravated DUI convictions merged for sentencing purposes. The trial court sentenced defendant to concurrent terms of 10 years' imprisonment for aggravated DUI and 3 years' imprisonment for driving while his license was revoked.

¶ 6 On direct appeal, defendant made the following arguments: (1) the trial court erred in refusing to define "ordinary care" for the jury; (2) the court erred in sentencing him as a Class X offender; and (3) the court abused its discretion in sentencing defendant. Halerewicz, 2013 IL App (4th) 120388, ¶ 2. This court affirmed defendant's conviction and sentence. Halerewicz, 2013 IL App (4th) 120388, ¶ 2.

¶ 7 On July 28, 2014, defendant filed a pro se postconviction petition. The trial court appointed counsel for defendant on November 6, 2014. On November 7, 2014, defendant filed a supplement to his pro se petition, which contained unsigned affidavits from alleged witnesses. On June 24, 2015, defendant filed a motion to dismiss his appointed counsel.

¶ 8 On July 14, 2015, the State filed a motion to dismiss defendant's petition for postconviction relief. In July 2015, the trial court granted defendant's request to dismiss counsel, and defendant proceeded pro se.¶ 9 On September 18, 2015, defendant filed an amended pro se postconviction petition, claiming the trial court judge was biased against him and he received ineffective assistance of counsel. Defendant based his claim of judicial bias on the trial judge's statement she had personally been affected by alcohol. Defendant also points to the trial court's comments regarding defendant's lack of remorse and defendant and his family's hostility toward the court.

¶ 10 Defendant also argued other trial court rulings showed bias by the court. For example, the trial court allowed the State to amend the charging instrument and did not scold the State for the defects in the charging instrument. The court would not define the term "ordinary care" in response to a question from the jury. Further, the court denied (1) his motion for a directed verdict, (2) his third motion in limine, (3) his motion to sever his charge of driving while his license was revoked, and (4) his motion to bar the State from introducing evidence regarding the status of his driver's license.

¶ 11 Defendant also alleged his trial counsel was constitutionally ineffective. According to defendant, his trial counsel was ineffective for not objecting to changes to the charging instrument after the police officers testified. He also argues his trial counsel was ineffective for failing to call Kayla Nein and Betsey Kramzer as witnesses on defendant's behalf. Defendant alleged Nein, a bartender at the Converse Street Bar, would have testified defendant had four beers on the night of his arrest between 7 p.m. and 1 a.m., did not exhibit any signs of being "over served alcohol," and was capable of exercising ordinary care in operating a motor vehicle. Defendant alleged Kramzer would have testified defendant did not drink any alcohol while he was working for her.

¶ 12 Defendant also argued his trial counsel was ineffective because defendant wanted to testify but counsel threatened he would be found guilty and sentenced to six years in prison ifhe testified. Defendant alleged counsel's threat caused him not to testify.

¶ 13 Defendant also argued he believed the wrong jury instructions were read to the jury "because there was much confusion as to what instruction[s] were given and a lot of house cleaning as the judge called it." Defendant questioned whether a reasonable-doubt instruction was given to the jury. He also contends the "ordinary care" instruction (IPI, Criminal, No. 23.29) should not have been given to the jury. Instead, defendant argued the jury should have been instructed the State had to establish his blood alcohol level was above a 0.08.

¶ 14 Defendant also argued his appellate counsel was ineffective because he did not raise the issue of judicial bias in his direct appeal.

¶ 15 Defendant attached letters from Sheri Halerewicz, Kashi Halerewicz Moser, Betsy Kramzer, and Kayla Nein. Kramzer and Nein's letters were not signed. On October 6, 2015, defendant filed a supplement to his amended petition. In the supplement, defendant stated he cannot have contact with Kayla Nein because she is now a correctional officer. However, defendant stated Nein was told by defendant's trial counsel not to show up for trial after defense counsel talked to her.

¶ 16 At a hearing on December 10, 2015, defendant told the trial court he was withdrawing his original postconviction petition and asked to be heard on the amended petition.

¶ 17 On January 13, 2016, the trial court dismissed defendant's amended postconviction petition.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 Defendant appeals the second-stage dismissal of his amended postconviction petition. Based on our examination of the record, OSAD's motion to withdraw, and defendant'samended petition, we conclude, as has OSAD, that an appeal in this cause is without merit.

¶ 21 The Post-Conviction Hearing Act (725 ILCS 5/122-1 to 7 (West 2014)) "provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitutions." People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). A proceeding under the Act is a collateral proceeding and not an appeal from the defendant's conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The defendant must show he suffered a substantial deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill. 2d 79, 83, 885 N.E.2d 1044, 1046 (2008).

"Because this is a collateral proceeding, rather than an appeal of the underlying judgment, a post-conviction proceeding allows inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. [Citation.] Thus, issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are considered waived." People v. Pitsonbarger, 205 Ill. 2d 444, 455-56, 793 N.E.2d 609, 619 (2002).

¶ 22 The Act establishes a three-stage process for adjudicating a postconviction petition. English, 2013 IL 112890, ¶ 23. At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is not dismissed at the first stage, it advances to the second stage. 725 ILCS 5/122-2.1(b) (West 2014).

¶ 23 At the second stage, the trial court may appoint counsel, who may amend the petition to ensure defendant's contentions are adequately presented. People v. Pendleton, 223 Ill.2d 458, 472, 861 N.E.2d 999, 1007 (2006). During this stage, the State may file an answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2014). A petition may be dismissed at the second stage "only when the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation." People v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913, 920 (2005). A petitioner's allegations are taken as true unless the allegations are affirmatively refuted by the record. People v. Domagala, 2013 IL 113688, ¶35, 987 N.E.2d 767. At the second stage, defendant bears the burden of making a substantial showing of a constitutional violation. Domagala, 2013 IL 113688, ¶ 35. We review de novo the second stage dismissal of a postconviction petition. Pendleton, 223 Ill. 2d at 473.

¶ 24 Defendant's pro se amended postconviction petition included claims...