People v. Reed

2020 IL 124940

182 N.E.3d 64

450 Ill.Dec. 618

The PEOPLE of the State of Illinois, Appellee,

v.Demario D. REED, Appellant.

Docket No. 124940

Supreme Court of Illinois.

Opinion filed December 3, 2020.

James E. Chadd, State Appellate Defender, Patricia Mysza and Douglas R. Hoff, Deputy Defenders, and Alexander G. Muntges, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.

Steven Drizin, of Bluhm Legal Clinic Center on Wrongful Convictions at Northwestern Pritzker School of Law, of Chicago, amicus curiae.

OPINION

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

¶ 1 This case presents the issue of whether a guilty plea prevents a defendant from asserting an actual innocence claim under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)). The Appellate Court, Fourth District, answered in the affirmative and affirmed the denial of defendant's petition on this basis. See 2019 IL App (4th) 170090, 429 Ill.Dec. 774, 125 N.E.3d 480. For the reasons below, we reject the appellate court's conclusion that a guilty plea forecloses a claim of actual innocence under the Act but nevertheless affirm the denial of defendant's claim on the merits.

¶ 2 BACKGROUND

¶ 3 On September 29, 2014, defendant was charged by information with a count of armed violence ( 720 ILCS 5/33A-2(a) (West 2014)) in that, while armed with a shotgun, defendant possessed less than 15 grams of cocaine. Defendant was also charged with unlawful possession of a weapon by a felon (id. § 24-1.1(a)), unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(c)(2) (West 2014)), and unlawful possession of a controlled substance (id. § 402(c)).

¶ 4 The charges were supported by an officer's sworn testimony to the following. While patrolling in a marked patrol car, the officer observed several subjects sitting on the front porch of a residence located in an area that was viewed as a high-crime area and where large amounts of narcotics were sold. Upon seeing an officer exiting the car to make voluntary contact with the subjects, defendant jumped up and ran inside the house. The owner of the residence later informed the officer that defendant did not have permission to enter the residence.

¶ 5 The officer further observed that, as defendant jumped up, he grabbed the right side of his right leg just above the knee and continued to do so as he ran into the residence. The police report described defendant's leg as stiff and not bending normally.

¶ 6 Soon after defendant ran inside, the second subject, Davie Callaway, fled from the couch into the dining room. The third subject stayed seated on the couch with his hands in the air. After the other subjects were secured, the officer located defendant lying facedown on a bed in a bedroom located on the southwest corner of the house.

¶ 7 The officers then searched defendant's flight path, which was described by two witnesses inside the residence. By the bed in the northwest bedroom, officers recovered a cellophane wrapper for a cigarette pack that contained 0.4 grams of crack cocaine. Under the bed, the officers discovered a sawed-off shotgun that was situated in a manner that indicated it had been thrown underneath the bed. The police report noted moisture in the area of the barrels, which indicated that the shotgun had not been underneath the bed for very long and most likely had been left outside for a period of time. The officer further explained in the police report that "firearms are often concealed outside in a location that is quickly and easily accessible by the offender, but not actually possessed by the offender should the Police arrive."

¶ 8 Upon a search incident to arrest, officers further found approximately 1.5 grams of suspected crack cocaine on Davie Callaway and a digital scale on defendant.

¶ 9 After defendant's unsuccessful motion to dismiss the charges, the parties presented to the court a plea agreement under which defendant would plead guilty to one count of armed violence in exchange for a sentence of 15 years' imprisonment. As its factual basis to support the plea, the State averred that "Officer Daniels would testify that he observed" "the defendant flee upon sight of him. The defendant was running oddly. When he entered the house, he located a shotgun and cocaine. The defendant was located in a bedroom, and the shotgun had the defendant's DNA on it." The court then properly admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). After confirming the plea was made knowingly and voluntarily, the court accepted the plea and found defendant guilty of armed violence ( 720 ILCS 5/33A-2(a) (West 2014)). On April 13, 2015, defendant was sentenced to 15 years' imprisonment. The court then granted the State's motion to dismiss and strike the remaining counts against defendant.

¶ 10 Defendant's initial post-conviction petition under the Act ( 725 ILCS 5/122-1 et seq. (West 2016)) asserted an actual innocence claim and an ineffective assistance of counsel claim but was summarily dismissed as frivolous. Subsequently, on January 20, 2016, defendant filed a motion for leave to file a successive post-conviction petition asserting actual innocence.¹ Defendant specifically alleges that it is undisputed that he did not reside at the residence in which the gun and drugs were found and that he has "absolutely zero knowledge of what is within that residence." Also, no DNA links defendant to the drugs. He further noted that the gun was found not on his person but under the bed in a different room from where he was apprehended.

¶ 11 Unlike his initial petition, defendant attached the affidavit of Davie Callaway to support his claim of innocence, which was dated October 15, 2015. Callaway averred that he was the sole owner of the cocaine found in the residence and that defendant had zero knowledge of the presence of cocaine in that residence. Callaway's testimony lacked any reference to the shotgun.

¶ 12 The circuit court allowed leave to file the petition. The State filed a motion to dismiss, arguing, inter alia , that defendant could not assert a freestanding claim of innocence. It relied on People v. Barnslater , 373 Ill. App. 3d 512, 527, 311 Ill.Dec. 619, 869 N.E.2d 293 (2007), rev'd on other grounds , People v. Robinson , 2020 IL 123849, ¶ 55, 450 Ill.Dec. 37, 181 N.E.3d 37, which stated in dicta that "defendant's postconviction claim of actual innocence cannot be deemed to deprive him of his due process rights in the face of the fact that the defendant previously confessed to the commission of the crime in his plea."

¶ 13 Defendant's petition proceeded to a third stage evidentiary hearing, where Callaway testified in accordance with his affidavit. On cross-examination, Callaway admitted he did not write the affidavit until he was imprisoned with defendant. He further acknowledged speaking with defendant about his intention to provide the affidavit while imprisoned together but claimed that defendant never requested him to write it. Callaway explained that he felt bad that defendant was charged with possession because of him.

¶ 14 On January 20, 2017, the circuit court denied defendant's petition. It found Callaway's testimony was new but not credible, specifically noting that he did not come forward until after he pled guilty and was in the same prison as defendant. It also found that Callaway's affidavit was not of such conclusive character that it would probably change the result on retrial because, at the time of defendant's plea, defendant knew pointing the fault at codefendants for possessing the drugs was a viable defense. Defendant appealed.

¶ 15 The appellate court affirmed but on different grounds. It found that a valid guilty plea forecloses a post-conviction claim of actual innocence. See 2019 IL App (4th) 170090, 429 Ill.Dec. 774, 125 N.E.3d 480. In support of its holding, the appellate court relied upon People v. Cannon , 46 Ill. 2d 319, 321, 263 N.E.2d 45 (1970), wherein this court stated: " ‘Before his plea of guilty was accepted, the defendant, represented by appointed counsel, was fully and carefully admonished by the trial judge, and in the light of that admonition, the defendant's present [innocence] claim cannot be entertained.’ "

2019 IL App (4th) 170090, ¶ 19, 429 Ill.Dec. 774, 125 N.E.3d 480 (quoting Cannon , 46 Ill. 2d at 321, 263 N.E.2d 45 ). Although it acknowledged this statement was obiter dicta , without an explicit decision from this court to the contrary, it found it was bound to follow Cannon . Therefore, in agreement with the First District in Barnslater , it found defendant's innocence claim cannot be entertained because he knowingly and voluntarily pled guilty to the charge of which he now claims to be innocent. Id. ¶ 17. Furthermore, the appellate court found that to allow defendant to knowingly and voluntarily plead guilty and then turn around to complain to a reviewing court that the trial court found him guilty is "paradoxical if not duplicitous." Id. ¶ 26. If there is any error, it is an error that defendant invited himself by pleading guilty to armed violence. Id.

¶ 16 We granted defendant's petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2018).

¶ 17 ANALYSIS

¶ 18 This appeal arises from defendant's post-conviction petition under the Act, which provides a statutory remedy to defendants who claim substantial violations of their rights occurred in the proceedings that resulted in their conviction. People v. English , 2013 IL 112890, ¶ 21, 369 Ill.Dec. 744, 987 N.E.2d 371. A post-conviction petition is not a substitute for appeal but, rather, is a collateral attack. Id. Accordingly, issues that were raised...