People v. McClellan

2014 IL App (4th) 120945-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC McCLELLAN, Defendant-Appellant.

NO. 4-12-0945

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

September 24, 2014

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 Champaign County

No. 08CF1008

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE POPE delivered the judgment of the court.

Justices Knecht and Turner concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court did not err in summarily dismissing defendant's pro se postconviction petition.

(2) Cause remanded for imposition of fines by the trial court and application of defendant's $500 pretrial-incarceration credit.

¶ 2 On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective assistance. On September 7, 2012, the trial court summarily dismissed defendant's petition. Defendant appeals, arguing his postconviction petition should not have been summarily dismissed because it presented an arguable claim his trial counsel provided him ineffective assistance by failing to locate and subpoena a witness whose alleged testimony arguably couldhave changed the outcome of the case. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In June 2008, the State charged defendant by information with one count of aggravated battery, alleging defendant made physical contact of an insulting or provoking nature with Officer David McLearin by placing his hands on McLearin's chest and pushing, knowing McLearin was a police officer engaged in the execution of his official duties. 720 ILCS 5/12-3, 12-4(b)(18), 12-4(e)(2) (West 2008). Later that month, a grand jury indicted defendant on the same charge.

¶ 5 In July 2008, in the pretrial-discovery order, the trial court ordered the State to provide the names and last known addresses of the persons whom the State intended to call for trial. In its answer, the State listed Officers David McLearin and Marshall Morris as witnesses, indicating the last known address for each of them as the Champaign police department.

¶ 6 At the beginning of the November 2008 jury trial, upon questioning by the trial court, defense counsel advised the court she had been unable to locate Morris, whom she believed had relocated to Arizona. Counsel stated:

"I did get a cell phone number from the police department. They believed it was a contact number for him. I called on multiple occasions, and the person who answered the phone stated it was the wrong phone number. I think I've done everything that I possibly can to find this witness and was unsuccessful in doing so."

The State advised the court:

"Judge, I did the same checking with the Champaign [p]olice [d]epartment. They have a phone number and they know what State he's in, and that's all."

Defense counsel advised the court she was ready for trial.

¶ 7 At the jury trial, Officer McLearin testified he was on duty in the early morning hours of May 31, 2008. He testified he was in his full Champaign police-officer uniform and was riding by himself in a fully marked squad car. According to his testimony, McLearin was called to a fight in progress on North Randolph Street at 3 a.m. He was the first of three officers on the scene. When he arrived, 10 people were in the yard, but they ran into an apartment. It sounded to McLearin like the fight continued inside. After investigating the fight, the officers on the scene arrested Leman Smith. McLearin testified he had to struggle with Smith to get him handcuffed. Defendant was upset and yelling, asking why Smith was being arrested. McLearin testified he told defendant he needed to leave the area, which defendant eventually did.

¶ 8 At 4:20 a.m. the same day, McLearin was dispatched on a welfare check to the 50th block of East Bradley Avenue. Defendant was standing on the corner. McLearin testified he did not intend to arrest defendant when he first exited his vehicle and walked toward defendant, but rather, was simply checking on his welfare.

¶ 9 McLearin was the first officer on the scene by 30 to 45 seconds. McLearin exited his vehicle and asked defendant what he wanted. According to McLearin, defendant said " 'what's my brother's mother fucking bond.' " McLearin told defendant he did not know and his brother would go before a judge in the morning. Defendant moved toward him as he was walking up to the sidewalk, called McLearin a " 'bogus bitch,' " and said whenever he got achance he would " 'take care of [McLearin's] ass.' " Defendant was within arm's length at that point. Defendant was upset, put his hands on McLearin's chest, and pushed him. McLearin testified he braced himself and grabbed defendant's hands and pushed him back.

¶ 10 According to McLearin, defendant then clenched his fists and came toward McLearin again. McLearin sprayed defendant with pepper spray. Although not noted in his report, McLearin testified defendant continued to come toward him. McLearin then tackled defendant, who continued to struggle and tried to punch McLearin. At that point, McLearin told defendant he was under arrest. McLearin grabbed defendant's arm when defendant tried to punch him and flipped defendant onto his stomach. Defendant tucked his hands under his chest. McLearin and Officer Morris, who arrived during the confrontation, had to get defendant's hands from underneath him so he could be cuffed.

¶ 11 McLearin's squad car was equipped with working video equipment. He could not recall if the front of his squad car was facing defendant when he arrived on the scene. He did not activate the video equipment because it was generally used for traffic stops, not welfare checks.

¶ 12 McLearin testified Morris was no longer with the Champaign police department. He had taken another law-enforcement job in Arizona and moved away.

¶ 13 Defendant testified he and Leman Smith were at the home of a woman with whom defendant was involved. Two other women were also at the home. The woman with whom defendant was involved had a child. The child's father came to the home and started arguing with the mother. When the police arrived, the child's father ran off, and everyone else went back in the house. The police started knocking on the door of the home. Smith eventually opened the door. The police grabbed him, dragged him outside the house, and arrested him.

According to defendant, he and McLearin had a verbal altercation at that time.

¶ 14 Defendant testified he later mistakenly called 9-1-1, instead of the police-satellite station, to determine Smith's bond. He hung up after calling 9-1-1, but the dispatcher returned his call. Defendant identified himself and told the dispatch operator why he called. Morris arrived shortly thereafter, and he and Morris were talking about why defendant called 9-1-1. Defendant saw McLearin make a U-turn in the middle of the street and park behind Morris. According to defendant, McLearin pulled out his mace and sprayed defendant without warning or cause. Defendant testified he and McLearin had not exchanged any words when this happened. Defendant stated to McLearin, "[W]hat did I do. I ain't do nothing." At that point, McLearin told defendant he was under arrest and cuffed him. Defendant denied pushing either McLearin or Morris.

¶ 15 McLearin testified in rebuttal he was the first to arrive in response to the 9-1-1 call. Morris did not arrive on the scene until 30 to 45 seconds, or even a minute, after McLearin. Defendant was not talking to Morris when McLearin pulled up. Defendant walked up to McLearin in an aggressive manner, using profanities. He told McLearin, "I'm going to take care of your ass when I get a chance," and then defendant put his hands on McLearin and pushed him.

¶ 16 During closing argument, defense counsel noted, "Officer Morris isn't here to support [McLearin's] story. His colleague has not come to support his side, and they've explained this away as he's moved to Arizona. But regardless, he wasn't here to support his colleague in this."

¶ 17 During deliberations, the jury had three questions, one of which inquired why Morris was not present to testify. The court responded, "You have heard the testimony in thiscase. You must base your decision on the testimony that you have heard." Sometime later, the jury was given a Prim instruction (People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972)). The jury convicted defendant of aggravated battery.

¶ 18 In November 2008, defendant filed a motion for acquittal or, in the alternative, a motion for a new trial. In January 2009, the trial court denied defendant's motion.

¶ 19 On April 20, 2009, when defendant failed to appear for his sentencing hearing, the trial court sentenced defendant in absentia to 8 1/2 years' imprisonment. In its oral pronouncement of sentence, the court said nothing about fines. The written sentencing order gave defendant credit for 100 days served and indicated "the [d]efendant is ordered to pay costs of prosecution herein." The docket entry for April 20, 2009, states, in pertinent part:

"Cost Only Fee $408.90 Signed Judge DIFANIS THOMAS J.

***

Sentence: Fines and/or Costs/Penalties and Fees

***

Cost Only 396.90 Preliminary Hearing 10.00

NOTICES MAILED 1ST 2.00"

The Champaign County circuit clerk's website (https://secure.jtsmith.com/clerk/yytt331s.asp) (visited August 18, 2014), lists $408.90 in assessments, including:

" 25.00 BOND -10% BOND FEE

5.00 DOCUMENT STORAGE

5.00 AUTOMATION

100.00 CIRCUIT CLERK FEE

25.00 COURT SECURITY

10.00 ARRESTEE'S MEDICAL

50.00 COURT FINANCE FEE

30.00 STATES ATTORNEY

25.00 VICTIMS FUND-NO FIN[sic]

5.00 DRUG COURT PROGRAM

10.00 PRELIMINARY HEARING

116.90 SHERIFF FEES

2.00 NOTICES MAILED 1ST"

¶ 20 In April 2009, defense counsel filed a motion to reduce sentence. In March 2010, the court denied the motion.

¶ 21 On direct appeal, defendant alleged the trial court...