People v. Tyus

2016 IL App (4th) 150687-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RYAN E. TYUS, Defendant-Appellant.

NO. 4-15-0687

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 26, 2016

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 Macon County

No. 07CF1144

Honorable Timothy J. Steadman, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Harris and Appleton concurred in the judgment.

ORDER

¶ 1 Held: The trial court properly dismissed defendant's third-stage postconviction petition, where defendant argued that appellate counsel was ineffective for failing to argue that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

¶ 2 After an August 2009 trial, the jury found defendant, Ryan E. Tyus, guilty of controlled substance trafficking and criminal drug conspiracy. The trial court later sentenced him to 25 years in prison. This court affirmed the conviction and sentence on direct appeal. In October 2012, defendant pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2012)). In his petition, defendant argued that appellate counsel was ineffective for failing to argue that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt. In support, defendant argued that the testimony of the forensic chemist did not establish that the chemist tested two bags of powder separately to determine that each contained a substance containing cocaine. The trial court denied the petition after an evidentiary hearing. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The Initial Proceedings and Direct Appeal

¶ 5 In August 2007, the State charged defendant with (1) controlled substance trafficking (100 or more but less than 400 grams of a substance containing cocaine) (720 ILCS 570/401.1 (West 2006)) and (2) criminal drug conspiracy (100 or more but less than 400 grams of a substance containing cocaine) (720 ILCS 570/405.1 (West 2006)). The charges resulted from drug interdiction officers' intercepting a package containing two bags of cocaine sent from Los Angeles, California, to a residence in Decatur, Illinois. A jury later convicted defendant of both counts, and the trial court sentenced him to 25 years in prison. We affirmed defendant's conviction and sentence on direct appeal. People v. Tyus, 2011 IL App (4th) 100168, 960 N.E.2d 624.

¶ 6 B. The Postconviction Proceedings

¶ 7 1. First Stage

¶ 8 In October 2012, defendant pro se filed a petition for postconviction relief pursuant to the Act. Defendant argued, in pertinent part, that appellate counsel provided ineffective assistance by failing to argue that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt. Defendant claimed that the evidence was insufficient because the State failed to prove that both bags of cocaine were separately tested for cocaine. Instead, defendant claimed that the cocaine from the bags was commingled before being tested.

¶ 9 In December 2012, the trial court summarily dismissed defendant's postconviction petition. Defendant appealed, and in August 2014 we reversed the trial court's judgment and remanded for further postconviction proceedings. People v. Tyus, 2014 IL App (4th) 130139-U.

We held that defendant's petition stated the gist of a claim of ineffective assistance of trial counsel. Id. ¶¶ 33-35. We expressed no opinion as to the merits of defendant's claim of ineffective assistance of appellate counsel. Id. ¶ 40.

¶ 10 2. Second Stage

¶ 11 On remand, the trial court appointed counsel, who filed an amended postconviction petition, adopting the claims from defendant's pro se petition. In response, the State filed a motion to dismiss, which the court later denied.

¶ 12 3. Third Stage

¶ 13 In August 2015, the trial court conducted an evidentiary hearing on the issues raised in defendant's amended postconviction petition. We limit our discussion of that hearing to the evidence relating to defendant's claim that appellate counsel was ineffective for failing to argue that the evidence was insufficient.

¶ 14 a. Relevant Evidence From Defendant's Jury Trial

¶ 15 Decatur police officer Steve Young testified that in August 2007, police obtained a warrant to search a suspicious package destined for a residence in Decatur, Illinois. Inside the package, police found a comforter, inside of which was a cylindrical, Saran-wrapped object coated in axel grease. Wrapped inside the Saran Wrap was a clear plastic, vacuum-sealed bag. Inside the vacuum-sealed bag were two bags—"a little larger than sandwich style bags"—each of which contained a white, powdery substance. Young testified that he emptied the contents of the two sandwich bags into two separate evidence bags, which he then sealed. He then placed those two evidence bags inside a larger evidence bag, which he also sealed. Young identified State's exhibit No. 6 as the larger evidence bag that contained the two smaller evidence bags of cocaine.

¶ 16 Kristin Stiefvater testified that she was employed as a drug chemist with the Illi-nois State Police crime lab. She identified four exhibits, including State's exhibit No. 6, and stated that she had received them all from the Decatur police department in November 2007. The following exchange occurred between the State and Stiefvater about how Stiefvater weighed the contents of the various exhibits:

"Q. [The State:] Did you weigh the contents of the these [sic] exhibits?

A. [Stiefvater:] Yes, I did.

Q. And how did you weigh the contents of the exhibits?

A. I weighed the contents on a digital balance. What I do is I take a clean weigh boat, I zero the balance and I then empty the contents of the package into that clean weigh boat and record the weight."

To test the identity of the exhibits, Stiefvater testified, she performed two separate tests "on each of the items"—a color test and a mass spectrometry test. The following exchange occurred about the opinion Stiefvater reached about exhibit No. 6:

"Q. [The State:] Based upon the testing you conducted and your expertise starting with People's Exhibit Number 6 were you able to form an opinion to [a] reasonable degree of scientific certainty as to the weight and identity of the substance in People's Exhibit Number 6?

A. [Stiefvater:] People's Exhibit Number 6 contains 246.8 grams of white powder which was contained in two separate plastic bags and those contained cocaine."

¶ 17 b. The Trial Court's Decision

¶ 18 After the evidentiary hearing, the trial court denied relief on all the claims in defendant's amended postconviction petition.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 Defendant argues that the trial court should have granted relief on his postconviction claim that appellate counsel was ineffective. We disagree.

¶ 22 A. The Post-Conviction Hearing Act and the Standard of Review

¶ 23 The Act provides a multistage process by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their constitutional rights. People v. Tate, 2012 IL 112214, ¶ 8, 980 N.E.2d 1100. At the first stage, the trial court takes the defendant's factual allegations as true and determines whether the petition is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10, 912 N.E.2d 1204, 1208-09 (2009). If the court does not dismiss the petition as frivolous or patently without merit, the petition advances to the second stage. 725 ILCS 5/122-4 (West 2012). At the second stage, counsel may be appointed to file an amended petition. Id. The State then has the opportunity to respond by filling a motion to dismiss or an answer. 725 ILCS 5/122-5 (West 2012).

¶ 24 If the trial court denies the State's second-stage motion to dismiss, the proceedings advance to the third stage, in which an evidentiary hearing is conducted. 725 ILCS 5/122-6 (West 2012). After the hearing, the court determines whether the defendant has established a substantial denial of his constitutional rights.

¶ 25 Defendant acknowledges that, generally, we review a third-stage postconviction judgment under the manifest-weight-of-the-evidence standard. However, defendant argues thatde novo review is appropriate in this case because the evidence is not contested and the issue is one of law. We need not resolve this issue because, under either standard of review, we would affirm the trial court.

¶ 26 B. Ineffective Assistance of Counsel

¶ 27 In his amended postconviction petition, defendant argued that appellate counsel was ineffective for failing to argue on appeal that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

¶ 28 When a defendant raises an ineffective-assistance-of-counsel claim, he must show (1) that counsel's alleged error was objectively unreasonable and (2) a reasonable probability that, but for the error, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Appellate counsel is not required to raise every conceivable issue on appeal. People v. West, 187 Ill. 2d 418, 435, 719 N.E.2d 664, 674 (1999). That is, appellate counsel does not err by refraining to raise issues "which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." Id. at 435, 719 N.E. 2d at 674-75. Likewise, unless the underlying issue is meritorious, a defendant cannot establish prejudice for counsel's failure to raise the issue on appeal. Id. at 435, 719 N.E.2d at 675.

¶ 29 Therefore, to determine whether appellate counsel provided ineffective assistance, we determine whether the sufficiency-of-the-evidence claim would have been meritorious on direct appeal.

¶ 30 C. Sufficiency of the Evidence

¶ 31 Defendant argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt of trafficking more than 100...