People v. Walker
People v. Walker
Opinion
*810 ¶ 1 Defendant Brian Walker was convicted, after a jury trial, of the first degree murder of Dehombre Barnett. The jury also found that defendant personally discharged the firearm that caused Barnett's death. Thus, defendant was sentenced to 28 years, plus an additional 25 years due to a firearm enhancement, for a total sentence of 53 years with the Illinois Department of Corrections (IDOC).
¶ 2 Defendant now appeals the first-stage dismissal of his pro se postconviction petition as frivolous and patently without merit. Although his pro se petition contained several claims, he raises only one claim on appeal: that his counsel was ineffective for failing to inform him of a mandatory 25-year firearm enhancement, thereby leading defendant to reject a 27-year plea offer from the State. For the following reasons, we do not find his arguments persuasive and affirm the first-stage dismissal.
¶ 3 BACKGROUND
¶ 4 Defendant was charged in a 12-count indictment with various offenses, including first degree murder and attempted armed robbery, stemming from the shooting death of Barnett at Barnett's barber shop on July 8, 2005, during an attempted robbery. Before trial, the State dismissed all charges except for one count, which was the count for felony murder predicated on attempted armed robbery.
¶ 5 In this appeal, defendant does not challenge either the sufficiency of the evidence against him or the admission of evidence at trial. Therefore, we incorporate by reference our prior opinion, where we described the evidence in detail.
People v. Walker
,
¶ 6 The jury found defendant guilty of first degree murder and also found that he personally discharged the firearm that proximately caused the victim's death. At this first sentencing, the trial court sentenced defendant to 35 years for felony murder, plus the mandatory 25-year enhancement for killing with a firearm, for a total of 60 years. (There have been three sentencings, as we describe below.)
¶ 7 On appeal, defendant claimed: (1) that the trial court abused its discretion by allowing the State to proceed solely on a felony murder charge, thereby precluding defendant from seeking jury instructions on self-defense and second degree murder, (2) that the trial court erred by refusing to allow the defense to present evidence that a co-offender was not charged, (3) that the trial court erred by refusing to give defendant's issues instruction on armed robbery, and (4) that defendant's sentence was both excessive and improper because the trial court considered in aggravation matters that were implicit in the offense and facts unsupported by the evidence.
¶ 8 For reasons already stated in our prior opinion, this court affirmed the judgment of conviction, but remanded for resentencing, "with instructions that the trial court may not consider in aggravation the killing by a firearm, because that is a matter implicit in the firearm enhancement for the felony murder conviction."
Walker
,
¶ 9 At the second sentencing, held on May 18, 2010, the trial court sentenced defendant to 28 years for felony murder, plus 25 years for the firearm enhancement, for a total of 53 years.
¶ 10 On appeal from the second sentencing, this court found that "there is nothing in the record to show whether the sentencing court considered defendant's subjective belief that he shot the victim in self-defense, which is a statutory mitigating factor in sentencing only in a felony murder case."
People v. Walker
,
¶ 11 At the third sentencing, held on December 18, 2012, the trial court considered defendant's subjective belief in the need for self-defense and again sentenced defendant to 28 years for felony murder, plus 25 years for the firearm enhancement, for a total of 53 years. Defendant filed an appeal from the third sentencing, but this court granted counsel's
Anders
motion to withdraw and affirmed defendant's sentence.
Anders v. California
,
¶ 12 In a pro se postconviction petition, filed on November 17, 2015, defendant raised several claims, only one of which he raises on appeal: that his counsel was ineffective *982 *812 for failing to inform him of a mandatory 25-year firearm enhancement, thereby leading defendant to reject a 27-year plea offer from the State. With respect to this claim, the trial court found, among other things, that "petitioner was aware that if he rejected the purported plea offer he could face a sentence of up to 60 years for first degree murder, regardless of any sentencing enhancement, yet [he] still chose to do so. Petitioner's actual sentence was not in excess of the maximum sentence he knowingly risked by rejecting the plea offer."
¶ 13 Thus, on January 4, 2016, the trial court dismissed the petition as frivolous and patently without merit, and this appeal followed. On appeal, defendant asks this court to reverse the trial court's summary dismissal and remand for second-stage proceedings. However, defendant does not specify what relief he ultimately seeks from these proceedings. From his contentions, it appears that he seeks a reversal of his conviction and a remand for the resumption of plea negotiations and a new trial, if necessary. See
People v. Hale
,
¶ 14 ANALYSIS
¶ 15 Defendant claims that the trial court erred in dismissing his pro se postconviction petition as frivolous and patently without merit. On this appeal, defendant raises one claim: that his trial counsel was ineffective for failing to advise him of a mandatory 25-year firearm enhancement, leading him to reject a plea offer by the State of 27 years. For the following reasons, we affirm.
¶ 16 I. Stages of a Post-Conviction Proceeding
¶ 17 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1
et seq.
(West 2016) ) "provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both."
People v. Hodges
,
"(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
(1) in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both[.]" 725 ILCS 5/122-1(a) (West 2016).
The Act permits a person under a criminal sentence to challenge his or her conviction or sentence for violations of federal or state constitutional rights.
People v. Pendleton
,
¶ 18 To be entitled to postconviction relief, a petitioner bears the burden of establishing that a substantial deprivation of his constitutional rights occurred "in the proceedings that produced the conviction or sentence being challenged."
Pendleton
,
*813
*983
People v. Waldrop
,
¶ 19 In noncapital cases, the Act contemplates three stages.
Pendleton
,
¶ 20 If the petition survives this initial review, the process moves to the second stage, where the trial court appoints counsel for a petitioner who cannot afford counsel. 725 ILCS 5/122-4 (West 2016). Appointed counsel may make any amendments that are "necessary" to the petition previously filed by the
pro se
defendant.
People v. Perkins
,
¶ 21 If the petition proceeds, it advances to a third-stage evidentiary hearing. "[W]hen a petitioner's claims are based upon matters outside the record, the Postconviction Act does not intend such claims [to] be adjudicated on the pleadings."
People v. Snow
,
¶ 22 When a matter is decided without an evidentiary hearing, we review the trial court's decision under a
de novo
standard of review.
People v. Hommerson
,
¶ 23 In addition, a reviewing court may affirm on any basis found in the record.
In re Gabriel W.
,
*814 *984 ¶ 24 II. Ineffective Assistance of Counsel
¶ 25 Defendant claims that the trial court erred in dismissing his petition at the first stage because he made a nonfrivolous claim of ineffective assistance of trial counsel.
¶ 26 Every Illinois defendant has a constitutional right to the effective assistance of counsel under the sixth amendment to the United States Constitution and under the Illinois Constitution. U.S. Const., amends. VI, XIV ; Ill. Const. 1970, art. I, § 8 ;
People v. Domagala
,
¶ 27 To establish the first prong, that counsel's performance was deficient, a defendant must show "that counsel's performance was objectively unreasonable under prevailing professional norms."
Domagala
,
¶ 28 Although the
Strickland
test is a two-prong test, our analysis may proceed in any order. Since a defendant must satisfy both prongs of the
Strickland
test in order to prevail, a trial court may dismiss the claim if either prong is missing.
People v. Flores
,
¶ 29 III. Strickland in the Plea Bargain Context
¶ 30 In the plea bargain context, to show prejudice, a defendant must establish certain factors, as we discuss below. Our supreme court found that the factors listed in
People v. Curry
,
*985
*815
Hale
,
¶ 31 According to
Hale
,
Frye
, and
Cooper
, to show prejudice in the plea bargain context, a defendant must show a reasonable probability (1) that, but for his counsel's deficient advice, he would have accepted the plea offer, (2) that the plea would have been entered without the prosecution cancelling it, (3) that the trial court would have accepted the bargain, assuming that it had discretion under state law to accept or reject it, and (4) that "the end result of the criminal process would have been more favorable by reason of a plea."
Frye
, 566 U.S. at 147,
¶ 32 In addition, "[t]he disparity between the sentence a defendant faced and a significantly shorter plea offer can be considered supportive of a defendant's claim of prejudice."
Hale
,
¶ 33 In the case at bar, defendant cannot show a reasonable probability that, but for his counsel's deficient advice, he would have accepted the plea offer; and, thus, his petition is patently without merit on the first factor. See
Frye
, 566 U.S. at 147,
¶ 34 Even without the mandatory firearm enhancement, defendant knew he was facing a possible 60-year sentence for murder, and the 53-year sentence he actually received was less than this maximum. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (60-year maximum).
1
In addition, even without the mandatory enhancement, defendant knew he was facing a possible 20-year minimum for murder. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (20-year minimum). The alleged plea offer was only seven years more than the minimum that defendant does not deny he knew of and, thus, on the very low end of his possible exposure. In sum, even if we accept his allegations as true, defendant was willing to both risk a possible 60-year sentence for murder and reject an offer of only seven years more than the minimum, in the hope of being acquitted. See
Hale
,
¶ 35 Defendant was willing to take this risk even though he knew that his criminal history demonstrated both a resistance to change and a prior involvement with drugs and guns. His presentence report demonstrates that, on December 13, 2001, he was sentenced to 18 months' probation for attempted possession of cocaine. On July 17, 2002, a violation of probation petition was filed. On August 6, 2002, his probation was terminated unsatisfactorily when he was sentenced for new offenses, namely, six years for the manufacture or delivery of cocaine and three years for the possession of a weapon by a felon, to run concurrently. On July 8, 2005, shortly after his release from his prior drug and weapons charges, the instant offense occurred, which also involved drugs and weapons. In this offense, defendant, according to his own statement, shot the victim whom he hoped would be a source of drugs, money, or both. Despite a criminal history that demonstrated a resistance to change, defendant *986 *816 chose to reject a plea offer that was only seven years above the minimum that he does not deny he knew of. In three sentencings before two different trial judges, defendant did not receive the minimum.
¶ 36 The "showing of prejudice must encompass more than a defendant's own ' "subjective, self-serving" ' testimony."
Hale
,
¶ 37 Our supreme court in
Hale
concluded that it would be unnecessary to review the other arguments of the State since we have already concluded that defendant cannot establish the prejudice prong of defendant's claim of ineffective assistance of trial counsel.
Hale
,
¶ 38 In conclusion, on the particular facts of this case, we find that defendant cannot show prejudice where he faced a possible 60-year sentence, even without the 25-year firearm enhancement, and where his 53-year sentence is less than the 60 years he was willing to risk.
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, we affirm the trial court's first-stage dismissal of defendant's pro se postconviction petition.
¶ 41 Affirmed.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
Section 5-8-1(a)(1)(a) provides that, for first degree murder, "a term shall be not less than 20 years and not more than 60 years." 730 ILCS 5/5-8-1(a)(1)(a) (West 2004).
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Respondent-Appellee, v. Brian WALKER, Petitioner-Appellant.
- Cited By
- 11 cases
- Status
- Unpublished