People v. Vanpelt

2015 IL App (4th) 140904-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD M. VANPELT, Defendant-Appellant.

NO. 4-14-0904

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 22, 2015

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 Vermilion County

No. 10CF107

Honorable Craig H. DeArmond, Judge Presiding.

JUSTICE POPE delivered the judgment of the court.

Justices Turner and Steigmann concurred in the judgment.

ORDER

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

¶ 2 On August 25, 2014, defendant, Ronald M. VanPelt, filed a pro se postconviction petition, alleging numerous violations of his constitutional rights. On September 29, 2014, the trial court summarily dismissed defendant's petition. On January 20, 2015, this court allowed defendant's motion to discharge the office of the State Appellate Defender (OSAD). Defendant now proceeds pro se, arguing his postconviction petition should not have been summarily dismissed. We affirm.

¶ 3 I. BACKGROUND

¶ 4 We recently addressed the factual background of defendant's criminal case in People v. VanPelt, 2013 IL App (4th) 110600-U (unpublished order under Supreme Court Rule 23). Thus, we will refer to those facts only as necessary in the discussion of the issues raised in petitioner's postconviction petition.

¶ 5 At the May 2011 jury trial, Anthony Forman testified he was sitting in his parked car in Danville, Illinois, late in the evening on March 1, 2010, when he noticed a van "circling around" the area. He knew the van belonged to Shannon Whorrall. As Forman drove a circuitous route, the van followed him. Forman observed Whorrall was driving the van and had a passenger. Forman parked on the street and the van pulled up alongside of his vehicle. Forman got out of his vehicle and asked Whorrall why she was following him. Whorrall's passenger leaned across the driver's seat of the van and shot Forman in the chest. Forman had seen the man who shot him around Danville for years and knew his street name was "Mo-Mo." Forman identified defendant as the gunman from a police photograph array. He also identified defendant in court as the man who shot him.

¶ 6 Whorrall testified she had known Forman since childhood. Whorrall had known defendant for three years. They were in a relationship, defendant lived with her, and they had a child together. She testified defendant's nickname was "Mo-Mo." On March 1, 2010, Whorrall and defendant had driven to Danville to purchase marijuana. While driving around, they observed Forman sitting in his parked car. Whorrall denied following Forman or repeatedly driving past his vehicle. When Forman parked his car, Whorrall pulled the van up next to him. According to Whorrall, Forman "hopped out of his vehicle, and he screamed, 'What the fuck are you following us for?' " Whorrall testified defendant then shot Forman. She and defendant drove away and went back to Champaign. Whorrall testified defendant told her he shot Forman because "it was street shit" and "didn't concern [her]." When asked if Forman had a weapon, Whorrall responded, "I don't know."

¶ 7 On May 19, 2011, the jury convicted defendant of aggravated battery with a firearm and aggravated discharge of a firearm.

¶ 8 On July 1, 2011, defendant filed a posttrial motion arguing, inter alia, the trial court erred in denying his statutory right to a speedy trial (725 ILCS 5/103-5(a) (West 2010)), as well as his right to a speedy trial under the Intrastate Detainers Act (Detainers Act) (730 ILCS 5/3-8-10 (West 2010)). Defendant did not raise an argument regarding his constitutional right to a speedy trial.

¶ 9 On July 6, 2011, the trial court denied defendant's posttrial motion. That same day, the court sentenced defendant to 30 years in the Department of Corrections (DOC) with 355 days' credit.

¶ 10 On direct appeal, defendant argued (1) he was denied his constitutional right to a speedy trial where his trial did not begin until 14 months after his arrest and (2) the trial court erred in the way it instructed the jury regarding the reliability of an eyewitness identification. This court affirmed the trial court's judgment. VanPelt, 2013 IL App (4th) 110600-U.

¶ 11 On August 25, 2014, defendant filed a pro se postconviction petition, seeking relief under the Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2014)). His petition is 75 pages in length with 164 pages of exhibits. The petition alleges ineffective assistance of appellate counsel for failure to argue (1) defendant's statutory right to a speedy trial was violated (725 ILCS 5/103-5(a) (West 2010) and 730 ILCS 5/3-8-10 (West 2010)); (2) ineffective assistance of trial counsel; (3) selective enforcement of a statute related to his right to a speedy trial; (4) prosecutorial misconduct; (5) a Brady violation (Brady v. Maryland, 373 U.S. 83 (1968)); (6) a due-process violation for the State's intentional use or failure to correct the perjured testimony of Forman; (7) judicial bias; and (8) the accuracy of thetrial court record. Defendant raised additional issues outside the context of ineffective assistance of appellate counsel. Specifically, his challenges include: (1) a speedy-trial violation; (2) ineffective assistance of trial counsel; (3) selective enforcement of a statute; (4) prosecutorial misconduct; (5) a Brady violation; (6) a due-process violation for the State's intentional use or failure to correct the perjured testimony of Forman; and (7) judicial bias.

¶ 12 On September 29, 2014, the trial court, in a written order, dismissed the postconviction petition as frivolous and patently without merit.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 The Post-Conviction Act "provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitutions." People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). A proceeding under the Post-Conviction Act is a collateral proceeding and not an appeal from the defendant's conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The defendant must show he suffered a substantial deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill. 2d 79, 83, 885 N.E.2d 1044, 1046 (2008).

¶ 16 The Post-Conviction Act establishes a three-stage process for adjudicating a postconviction petition. English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. Here, defendant's petition was dismissed at the first stage. At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014). To survive dismissal at this initial stage, the postconviction petition "need only present the gist of a constitutional claim," which is "a lowthreshold" that requires the petition to contain only a limited amount of detail. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). Our supreme court has held "a pro se petition seeking postconviction relief under the [Post-Conviction] Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one that is completely contradicted by the record. Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation, such as one that is clearly baseless, fantastic, or delusional. Hodges, 234 Ill. 2d at 16-17, 912 N.E.2d at 1212.

¶ 17 "In considering a petition pursuant to [section 122-2.1 of the Post-Conviction Act], the [trial] court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2014); People v. Brown, 236 Ill. 2d 175, 184, 923 N.E.2d 748, 754 (2010). The petition must be supported by "affidavits, records, or other evidence supporting its allegations," or, if not available, the petition must explain why. 725 ILCS 5/122-2 (West 2014). Our review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap, 2011 IL App (4th) 100595, ¶ 20, 963 N.E.2d 394.

¶ 18 A. Claims of Ineffective Assistance of Appellate Counsel

¶ 19 Defendant alleges he was denied his right to effective representation by appellate counsel because counsel failed to present several issues on direct appeal.

¶ 20 Claims of ineffective assistance of trial and appellate counsel are evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Enis,194 Ill. 2d 361, 377, 743 N.E.2d 1, 11 (2000). A defendant raising a claim of ineffective appellate counsel "must show both that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful." People v. Petrenko, 237 Ill. 2d 490, 497, 931 N.E.2d 1198, 1203 (2010). At the first stage of postconviction proceedings, "a petition alleging ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." Petrenko, 237 Ill. 2d at 497, 931 N.E.2d at 1203 (citing Hodges, 234 Ill. 2d at 17, 912 N.E.2d at 1212). However, appellate counsel is not required to raise every conceivable issue on appeal, and counsel is not...