People v. Townsend

2020 IL App (1st) 171024

174 N.E.3d 969

447 Ill.Dec. 603

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

v.Anthony TOWNSEND, Defendant-Appellant.

No. 1-17-1024

Appellate Court of Illinois, First District, SECOND DIVISION.

July 21, 2020

James E. Chadd, Patricia Mysza, and Caroline E. Bourland, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 This appeal stems from the circuit court's summary dismissal of defendant Anthony Townsend's petition for relief under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)). Townsend was convicted by jury trial of first degree murder on a theory of accountability and received a sentence of 40 years' imprisonment. He filed a direct appeal, in which this court affirmed the judgment of the circuit court. On this appeal, Townsend challenges the circuit court's summary dismissal of his postconviction petition as frivolous and patently without merit. He argues that the summary dismissal was erroneous where his petition stated an arguable claim that his trial counsel provided ineffective assistance by usurping his decision to receive a bench trial instead of a jury trial. We reverse and remand for second-stage postconviction proceedings.

¶ 2 I. BACKGROUND

¶ 3 Townsend was charged by indictment with 13 counts of first degree murder ( 720 ILCS 5/9-1(a)(1), (2), (3) (West 2006)), 2 counts of attempted first degree murder (id. §§ 8-4(a), 9-1(a)(1)), 1 count of aggravated discharge of a firearm (id. § 24-1.2(a)(2)), 2 counts of attempted armed robbery (id. §§ 8-4, 18-2(a)(2)), and 2 counts of aggravated unlawful restraint (id. § 10-3.1) arising from an incident in Chicago on December 23, 2006.¹

¶ 4 Prior to trial, Townsend was initially represented by a public defender. On October 5, 2011, the trial court asked this first attorney whether Townsend would receive a bench or jury trial, and the first attorney stated, "Jury." On January 23, 2012, the court stated that Townsend's counsel had withdrawn and a second, private attorney appeared on Townsend's behalf.

¶ 5 On March 2, 2012, the trial court asked Townsend's second attorney whether Townsend would receive a bench or jury trial. The second attorney stated, "It will likely be a jury trial date." It is not clear from the record that Townsend was present on this court date. On May 24, 2012, the trial court called Townsend's case and noted that "Anthony Townsend is here." After discussing scheduling, the court stated, "By agreement for trial September 18th. It's a jury trial." Townsend's second attorney stated, "Yes." Nothing in the record suggests that Townsend ever raised an objection to having a jury trial prior to or during the jury trial, which commenced on November 26, 2012.

¶ 6 Because the issues on appeal only concern the conduct of Townsend's counsel prior to trial, we will briefly summarize the facts presented at trial.

¶ 7 The State presented the testimony of Dameon Johnson and Jamere Smith, two employees at a barbershop located on the 8200 block of South Cottage Grove Avenue. The testimony showed that on December 23, 2006, at about 10:30 p.m., Karim Muhaiman, Johnson, and Smith were closing the barbershop for the night. Johnson and Smith exited the barbershop's back door when Townsend and another man climbed out of a dumpster with their faces partially covered and carrying firearms.

¶ 8 Johnson struggled with Townsend, and Muhaiman put his arm around Townsend's neck. Meanwhile, Smith struggled with the other man, who eventually shot his firearm toward the rear of the barbershop and walked away. Townsend's hat fell off his head during the altercation, and Townsend left the scene after Johnson pulled the firearm from Townsend's hand. Once Townsend and the other man were gone, Johnson reentered the barbershop and called the police.

¶ 9 Chicago police officers arrived at the scene and found Karim lying in the barbershop's rear doorway with multiple gunshot wounds. A black winter cap was recovered from the scene, and DNA from the cap matched Townsend's DNA from a government database. On April 21, 2010, a buccal swab was performed on Townsend. The next day, Johnson identified Townsend from a lineup; he recognized Townsend because Johnson used to cut his hair. After it was confirmed that Townsend's DNA matched the DNA from the cap found at the scene, Townsend was arrested on June 15, 2010. The parties stipulated as to an autopsy report, which showed that Karim had received three gunshot wounds and that bullets had damaged his right lung, heart, diaphragm, stomach, and spleen.

¶ 10 The State rested.

¶ 11 The defense presented testimony from a Chicago police officer and detective showing that when they arrived at the scene of the incident on December 23, 2006, Johnson did not report that he recognized the offender.

¶ 12 The jury found Townsend guilty of first degree murder and found that Townsend had discharged a firearm during the commission of the offense. The trial court denied Townsend's motion for new trial, which set forth no argument that Townsend was denied his right to waive a jury trial. Townsend then received a sentence of 40 years' imprisonment for one count of first degree murder.

¶ 13 On direct appeal, Townsend argued that (1) the evidence at trial was insufficient, (2) his trial counsel was ineffective for failing to present the testimony of an expert witness on the unreliability of identifications, and (3) he was denied a fair trial due to prejudicial statements made by the prosecutor during closing arguments.

People v. Townsend , 2015 IL App (1st) 130862-U, ¶ 2, 2016 WL 3091755. On June 1, 2016, we affirmed the judgment of the circuit court. Id. ¶ 126.

¶ 14 On February 6, 2017, Townsend filed a pro se postconviction petition, alleging that he received ineffective assistance of trial counsel when his trial counsel refused to allow him to waive a jury trial. In support of his petition, Townsend filed an affidavit, which alleged:

"1) That my counsel refused to allow me to waive a jury trial.

2) During private consultation between myself and counsel ([the public defender]), I told counsel that I wanted a bench trial, but counsel refused and told me that she was running the show and that I was getting a jury trial.

3) Had my counsel not disregarded and overrode my desire for a bench trial, if given the decision I would have waived a jury trial and proceeded to a bench trial in this case."

¶ 15 On March 22, 2017, the circuit court called Townsend's case and stated:

"There's a transcript when the case was set for trial, and his lawyer at that time was a public defender * * *. [The public defender] became a judge and [Townsend] actually hired private counsel, [who] came in, and the case was tried to a jury.

Mr. Townsend thinks that [the public defender] somehow insisted that he take a bench trial. * * * [H]is private lawyer, who came in and tried the case to a jury was never in discussion about a bench trial.

I thought the evidence was very strong against him. Had it been a bench trial, the result would have been the same, he certain[ly] would have been convicted of murder.

So I find his [pro se ] post-conviction petition is without merit and is denied."

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 A. Ineffective Assistance Claim

¶ 19 On appeal, Townsend argues that the circuit court erred in summarily dismissing his postconviction petition, where he stated an arguable claim that his first attorney provided ineffective assistance by usurping his decision to waive a jury trial. The State responds that the record positively rebuts Townsend's claim, where the case was set for a jury trial in Townsend's presence but Townsend failed to object or contemporaneously assert his right to a bench trial. The State also argues that Townsend cannot claim his first attorney affected Townsend's ability to choose a bench trial because the jury trial occurred about a year after the first attorney withdrew and Townsend never claimed he told his second attorney he wanted a bench trial.

¶ 20 While the parties do not dispute whether this issue was preserved for this appeal, we note that Townsend's ineffective assistance claim was not forfeited, as it concerns discussions between Townsend and his first attorney that are not in the record. See People v. Munson , 206 Ill. 2d 104, 124, 276 Ill.Dec. 260, 794 N.E.2d 155 (2002) (forfeiture does not foreclose a defendant from raising a claim in a postconviction petition based on matters outside the record); see also People v. Harris , 206 Ill. 2d 1, 15, 276 Ill.Dec. 419, 794 N.E.2d 314 (2002) ("[T]he doctrines of res judicata and waiver are relaxed where the facts relating to the claim do not appear on the face of the original appellate record.").

¶ 21 The Act ( 725 ILCS 5/122-1 et seq. (West 2016)) provides a remedy for criminal defendants whose constitutional rights were substantially violated at trial or sentencing. People v. Dupree , 2018 IL 122307, ¶ 28, 429 Ill.Dec. 398, 124 N.E.3d 908. At the first stage of postconviction proceedings, the circuit court must determine whether the defendant's postconviction petition is " ‘frivolous or is patently without merit.’ " People v. Boykins , 2017 IL 121365, ¶ 9, 419 Ill.Dec. 385, 93 N.E.3d 504 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2014)). The circuit court may only summarily dismiss a petition as frivolous or patently without merit where the petition "has no arguable basis either in law or in fact." People v. Hodges , 234 Ill. 2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). A petition has "no arguable basis either in law or in fact" where it "is based on an indisputably meritless legal theory or a fanciful factual allegation." Id. "An example of an indisputably meritless legal theory is one...