People v. Pingelton

2021 IL App (4th) 180751

177 N.E.3d 1169

448 Ill.Dec. 818

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

v.John PINGELTON, Defendant-Appellant.

NO. 4-18-0751

Appellate Court of Illinois, Fourth District.

FILED August 3, 2021

Rehearing denied August 23, 2021

James E. Chadd, Catherine K. Hart, and Edward J. Wittrig, of State Appellate Defender's Office, of Springfield, for appellant.

Daniel K. Wright, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Benjamin M. Sardinas, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following a November 2006 jury trial, defendant, John Pingelton, was convicted of two counts of criminal sexual assault ( 720 ILCS 5/12-13(a)(1) (West 2004)). The trial court later sentenced him to 10 years in prison on each count, to be served consecutively.

¶ 2 In December 2015, defendant pro se filed a postconviction petition alleging, in pertinent part, that he received ineffective assistance of both trial and appellate counsel because his counsel allowed physicians to provide improper expert opinions. Later that month, the trial court advanced the petition to the second stage and appointed counsel to represent defendant.

¶ 3 In March 2016, the State filed a motion to dismiss defendant's petition.

¶ 4 In January 2018, postconviction counsel filed a motion to withdraw as counsel that included (1) a memorandum addressing defendant's claims and (2) a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).

¶ 5 On May 8, 2018, the trial court made a docket entry indicating that the case was set for a status hearing the following day. At that hearing, the State and postconviction counsel appeared personally, and defendant appeared via telephone. The court heard arguments from the State, postconviction counsel, and defendant and then took the matter under advisement. The court later wrote an order in which it granted (1) postconviction counsel's motion to withdraw and (2) the State's motion to dismiss.

¶ 6 Defendant appeals, arguing that (1) the trial court erred by dismissing his petition without providing him sufficient notice and opportunity to be heard and (2) postconviction counsel provided unreasonable assistance because he failed to advance the potentially meritorious claim that defendant received ineffective assistance of trial and appellate counsel when trial counsel failed to object to unqualified doctors providing improper expert opinions and appellate counsel failed to raise that argument on direct appeal. We affirm.

¶ 7 I. BACKGROUND

¶ 8 A. The Charges

¶ 9 In October 2005, the State charged defendant with two counts of criminal sexual assault ( 720 ILCS 5/12-13(a)(1) (West 2004)), alleging that defendant used force to commit acts of sexual penetration, namely, placing his penis in the vagina of K.S. and placing his finger in the vagina of A.H.

¶ 10 B. The Trial

¶ 11 Because the majority of the evidence presented at trial is not relevant to this appeal, we focus primarily on the expert testimony at issue. We previously set forth a thorough recitation of the trial testimony in our order affirming defendant's conviction on direct appeal. People v. Pingleton , 377 Ill. App. 3d 1163, 352 Ill.Dec. 156, 953 N.E.2d 92 (2007) (table) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 12 Cheryl Dowell, defendant's former spouse, testified that on July 7, 2005, she, defendant, and their children were at defendant's friend's residence. K.S. and A.H., two teenaged girls, were also present. K.S. and A.H. lived in a foster home and had previously babysat for defendant and Dowell.

¶ 13 K.S. testified that she and A.H. decided on July 7, 2005, to run away from their foster home. They met with defendant and Dowell at defendant's friend's house before going to defendant's house. At defendant's house, defendant sexually assaulted K.S. and A.H. After the assault, defendant kept trying to tell K.S. and A.H. that nothing happened.

¶ 14 Initially, K.S. and A.H. did not tell anyone about the attack. K.S. testified that defendant's attack caused her to bleed vaginally and she got a medical examination about two weeks after the attack. A.H. testified she received a medical examination about 10 days after defendant digitally penetrated her.

¶ 15 Dr. Dennis Adams testified that he was an emergency medicine physician and had examined approximately 20 victims of sexual assault. Adams stated he conducted a physical examination of A.H. and the pelvic exam portion was "unremarkable." However, Adams explained that the lack of trauma was not inconsistent with A.H.’s allegations because "in most cases [he had handled,] there was not objective evidence of trauma."

¶ 16 On cross-examination, Adams acknowledged that in his experience, some cases of sexual assault show physical trauma. Adams also acknowledged he was not a gynecologist and did not use a colposcope (essentially, a specialized magnifying device) to look for trauma. He testified that he had not been trained in the use of a colposcope and had never used one before.

¶ 17 Dr. Robert Silwa testified that he was an emergency medicine physician and had conducted approximately 100 sexual assault examinations. Silwa examined K.S., did not find evidence of trauma, and stated that, even if K.S. had told him she experienced bleeding at the time of the assault, Silwa would not have expected to find evidence of trauma because of the length of time between the attack and examination.

¶ 18 On cross-examination, Silwa acknowledged he was not a gynecologist and did not use a colposcope. Silwa explained that a colposcope (1) is a magnifying tool used to examine the cervical area in great detail for signs of subtle trauma not visible to the naked eye and (2) is more commonly used to examine children. Silwa testified that he had never used a colposcope. Silwa agreed that he could not say one way or another whether K.S. was sexually assaulted.

¶ 19 The jury convicted defendant of both counts of criminal sexual assault. The trial court later sentenced him to 10 years in prison on each count, to be served consecutively.

¶ 20 C. Defendant's Postconviction Petition

¶ 21 In December 2015, defendant pro se filed a postconviction petition alleging, in pertinent part, that he received ineffective assistance of both trial and appellate counsel because (1) his trial counsel failed to prevent two State's witnesses—the physicians—from providing improper expert opinions and (2) his appellate counsel failed to raise that issue on direct appeal. Later that month, the trial court advanced the petition to the second stage and appointed counsel to represent defendant.

¶ 22 In March 2016, the State filed a motion to dismiss defendant's petition, arguing that it contained claims that were waived, conclusory, lacking in merit, and refuted by the record.

¶ 23 In January 2018, postconviction counsel filed a motion to withdraw as counsel that included (1) a memorandum addressing defendant's claims and (2) a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).

¶ 24 On May 8, 2018, the trial court made a docket entry indicating that the case was set for a status hearing the following day.

¶ 25 At that hearing, the State and postconviction counsel appeared personally, and defendant appeared via telephone. The trial court first heard argument from the State on its motion to dismiss, during which the State said it would "adopt and incorporate all of the arguments that are contained within [counsel's motion to withdraw]." The State argued further, in pertinent part, that (1) trial counsel was not ineffective because he was able to elicit favorable testimony from the State's experts and (2) the charging instrument was not defective.

¶ 26 Defendant then personally stated to the trial court that his postconviction counsel should be allowed to withdraw and that defendant should be allowed to proceed pro se. In response to defendant's remarks, postconviction counsel said that he examined defendant's claims, concluded they were meritless, and requested that he be allowed to withdraw. The court took the matter under advisement.

¶ 27 The trial court later entered a written order in which it granted (1) postconviction counsel's motion to withdraw and (2) the State's motion to dismiss. In doing so, the trial court referred to the motion to withdraw very briefly but wrote at length about why it granted the State's motion to dismiss. The court noted that (1) none "of the allegations made by the Defendant-Petitioner show unreasonable assistance by his trial counsel, nor can the Court find that he was prejudiced by these purported failures" and (2) "the Defendant's claim that he was convicted of [sic ] a defective charging instrument is also not supported by the record." The court then concluded by writing, "As Defendant has failed to make a substantial showing of any constitutional violation in his Petition, the Court allows the State's Motion to Dismiss Post-Conviction Petition."

¶ 28 This appeal followed.

¶ 29 II. ANALYSIS

¶ 30 Defendant appeals, arguing that (1) the trial court erred by dismissing his petition without providing him sufficient notice and opportunity to be heard and (2) postconviction counsel provided unreasonable assistance because he failed to advance the potentially meritorious claim that defendant received ineffective assistance of trial and appellate counsel when trial counsel failed to object to unqualified doctors providing improper expert opinions and appellate counsel failed to raise that argument on direct appeal. We affirm.

¶ 31 A. Defendant's Lack of Notice and Opportunity to Be Heard Was Harmless Error

¶ 32 Defendant first argues that the trial court erred because it failed to provide him sufficient (1) notice of the hearing and (2) opportunity to be heard at the hearing. We agree that the trial court erred by not providing defend...