People v. Wimberly

223 N.E.3d 200

2023 IL App (1st) 220809

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

v.Darrell WIMBERLY, Defendant-Appellant.

No. 1-22-0809

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed March 23, 2023

Rehearing denied April 11, 2023

Appeal from the Circuit Court of Cook County. No, 07 CR 2881, Honorable William G. Gamboney Judge, presiding.

Attorneys for Appellant: James E. Chadd, State Appellate Defender; Douglas R. Hoff, Deputy Appellate Defender; Christina L, Merriman, Assistant Appellate Defender, 203 N. LaSalle Street, 24^th Floor, Chicago, IL 60601, 312.814.5472.

Attorneys for Appellee: Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Paul E. Wojcicki, Adam C. Motz, Richard J. Daley Center, Third Floor., Chicago, IL 60602, 312.693-5496.

OPINION

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

¶ 1 The defendant, Darrell Wimberly, appeals from an order of the circuit court denying him leave to file a successive postconviction petition under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He argues that the circuit court erred in denying him leave to file the successive petition because case law decided after the resolution of his initial petition created good cause for a successive petition and because evidence used to secure his convictions was obtained as a result of his unconstitutional arrest, thereby establishing prejudice. For the reasons that follow, we affirm the circuit court’s order.

¶ 2 On July 31, 2006, Brandon Lofton and Fabienne Marthol were walking on State Street in Chicago approaching 79^th Street when they were robbed at gunpoint. In addition to being robbed, Marthol was struck in the head with a gun by one of the robbers, and Lofton was shot in the back. When the police arrived, Marthol gave a description of the gunman to Chicago police detective Luke Connelly.

¶ 3 On August 20, 2006, Detective Connelly showed Marthol a photo array, but she was unable to identify any of individuals. The defendant’s picture was not contained in that array. On September 13, 2006, Detective Connelly showed Marthol a second photo array that contained a photograph of the defendant. Marthol pointed to the defendant’s picture and said, "He is the one who shot Brandon; he is the one who hit me in the head; and he is the one who robbed us." Marthol told Detective Connelly that she wanted to see the man in person because she "believe this him but not sure, rather see him in person."

¶ 4 After Marthol identified the defendant, Detective Connelly began looking for him and issued an investigative alert. The defendant was arrested by the Dolton Police Department on an unrelated misdemeanor charge. Aware of the investigative alert that Detective Connelly had issued, the Dolton police notified Detective Connelly that the defendant was in their custody and was about to be released. Detective Connelly went to the Dolton police station and placed the defendant under arrest on September 28, 2006. On that same day, the defendant was placed in a lineup, and Marthol positively identified him as the person who robbed her and Lofton, struck her with a gun, and shot Lofton.

¶ 5 The defendant and two codefendants were charged with the armed robbery, aggravated battery with a firearm, and attempt first degree murder of Lofton and the armed robbery and aggravated battery of Marthol. The codefendants each pled guilty to one count of armed robbery and were sentenced to 20 years’ imprisonment. The defendant opted for a jury trial.

¶ 6 In April 2009, the jury found the defendant guilty of one count of attempted first degree murder and two counts of armed robbery after evidence showed that he robbed Lofton and Marthol at gunpoint and then shot Lofton in the back. The trial court sentenced the defendant to consecutive terms of 50, 15, and 15 years’ imprisonment. This court affirmed the defendant’s convictions and sentences on direct appeal. See People v. Wimberly, No. 1-09-1328 (2011) (unpublished order under Illinois Supreme Court Rule 23).

¶ 7 On July 28, 2011, the defendant filed an initial petition for postconviction relief, raising several claims of ineffective assistance of trial and appellate counsel. The circuit court dismissed the petition as frivolous and patently without merit, and this court affirmed the dismissal. See People v. Wimberly, 2013 IL App (1st) 113454-U, 2013 WL 4737346.

¶ 8 On April 21, 2021, the defendant filed a motion for leave to file a successive postconviction petition, raising two claims for relief. The defendant asserted that his trial counsel rendered ineffective assistance and that his 80-year sentence is unconstitutional under the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art I, § 11). On July 26, 2021, the circuit court denied the defendant leave to file the successive petition, and this court affirmed that order. See People v. Wimberly, 2022 IL App (1st) 211464, 467 Ill.Dec. 460, 219 N.E.3d 58.

¶ 9 On September 21, 2021, after his April 21, 2021, motion for leave to file a successive postconviction petition had been denied by the circuit court, the defendant filed a motion to supplement his successive petition. In the proposed supplement, the defendant asserted that his arrest pursuant to an investigative alert was unconstitutional and that both his trial counsel and appellate counsel rendered ineffective assistance by failing to raise the unconstitutionality of his arrest in the trial court and on direct appeal. The circuit court treated the proposed supplement as a second motion for leave to file a successive postconviction petition. On April 22, 2022, the circuit court denied the defendant leave to file the petition, finding that he failed to establish cause for not having raised the claim that his arrest was unconstitutional in his initial postconviction petition and that he suffered no prejudice because his arrest was supported by probable cause. This appeal followed.

[1–4] ¶ 10 Under the Act, a defendant may raise a claim of a constitutional violation in his trial or in sentencing. People v. Edwards, 2012 IL 111711, ¶ 21, 360 Ill. Dec. 784, 969 N.E.2d 829. The Act contemplates the filing of one postconviction petition. Id. ¶ 22. Claims not raised in an initial postconviction petition are waived (id. ¶ 21) unless the defendant can show both cause for, and prejudice from, failing to raise the claim in the earlier petition or makes a colorable claim of actual innocence (People v. Robinson, 2020 IL 123849, ¶ 42, 450 Ill.Dec. 37, 181 N.E.3d 37). The Act defines "cause" as "an objective factor that impeded [the petitioner’s] ability to raise a specific claim during his or her initial postconviction proceedings." 725 ILCS 5/122-1(f) (West 2020). To establish "prejudice," a petitioner must demonstrate that the claim not raised in an initial postconviction proceeding "so infected the trial that the resulting conviction or sentence violated due process." Id. "[A]t this early leave-to-file stage, the petitioner is not required to make the ‘substantial showing’ that will later be required at a second-stage hearing after counsel is appointed." People v. Walker, 2022 IL App (1st) 201151, ¶ 20, 462 Ill.Dec. 780, 207 N.E.3d 1083 (citing Robinson, 2020 IL 123849, ¶ 58, 450 Ill.Dec. 37, 181 N.E.3d 37). Rather, " ‘[l]eave of court to file a successive postconviction petition should be denied only where it is clear from a review of the petition and attached documentation that, as a matter of law, the petitioner cannot set forth a colorable claim.’ " Id. (quoting People v. Sanders, 2016 IL 118123, ¶ 24, 399 Ill.Dec. 732, 47 N.E.3d 237). Our review of the circuit court’s denial of leave to file a successive postconviction petition is de novo. Robinson, 2020 IL 123849, ¶ 39, 450 Ill.Dec. 37, 181 N.E.3d 37.

[5] ¶ 11 In this appeal, the defendant has made no argument concerning his claims that his trial and appellate counsel rendered ineffective assistance by failing to raise the unconstitutionality of his arrest in the trial court and on direct appeal. Therefore, any assertion of error related to those claims has been forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Instead, the defendant contests only the merits of the circuit court’s order as it relates to the claim that his arrest pursuant to an investigative alert was unconstitutional.

¶ 12 Relying on the reasoning of the majority in People v. Bass, 2019 IL App (1st) 160640, 437 Ill.Dec. 430, 144 N.E.3d 542, aff’d in part, vacated in part, 2021 IL 125434, 450 Ill.Dec. 902, 182 N.E.3d 714, and the reasoning of the majority in Bass’s progeny, People v. Smith, 2022 IL App (1st) 190691, 463 Ill.Dec. 435, 209 N.E.3d 1089, the defendant argues that his warrantless arrest based on an investigative alert violated the search and seizure clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 6). He argues that he satisfied the Act’s cause requirement for the filing of a successive petition because the decisions in Bass and Smith were not issued until well after the filing and dismissal of his initial postconviction petition. The defendant argues that he suffered prejudice because the evidence used to obtain his convictions was obtained as a result of his unconstitutional arrest.

¶ 13 While acknowledging that the portion of the majority’s decision in Bass that held that warrantless arrests made pursuant to an investigative alert are unconstitutional was vacated by the supreme court in People v. Bass, 2021 IL 125434, ¶ 31, 450 Ill.Dec. 902, 182 N.E.3d 714, the defendant nevertheless argues that the majority’s decision in Smith, which like the majority’s decision in Bass held that arrests made pursuant to an investigative alert violate the Illinois Constitution, supports his argument that he made a prima facie showing of cause for failing to...