No. 2-16-0439 Opinion filed May 21, 2019 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 02-CF-3615 ) LUSTER T. SCOTT, ) Honorable ) Liam C. Brennan, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶1 Defendant, Luster T. Scott, appeals the second-stage dismissal of his petition filed under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The trial court

found that the petition was untimely. We agree with defendant that his petition was timely.

However, we affirm on the merits.

¶2 I. BACKGROUND

¶3 Following a jury trial, defendant was found guilty of two counts of aggravated unlawful

use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2002)) and one

count each of attempted vehicular hijacking (id. §§ 8-4(a), 18-4(a)(4)), attempted armed robbery

(id. §§ 8-4(a), 18-2(a)(2)), aggravated battery with a firearm (id. § 12-4.2(a)), and aggravated

battery (id. § 12-4(b)(8)) related to a December 11, 2002, shooting in a bank parking lot.

¶4 Evidence at trial indicated that defendant, who was wearing baggy pants, a dark coat, a

hooded sweatshirt, and a scarf covering the lower half of his face, pulled open the driver’s door

of the vehicle of a delivery courier, Richard Anderson, punched Anderson multiple times, and

tried to pull a courier bag from the backseat. During the struggle, the scarf slipped from

defendant’s face, allowing Anderson to see him. Defendant forcibly took Anderson’s keys,

injuring Anderson in the process. An off-duty police officer, Rodney Hampton, arrived, and

defendant shot him in the leg and fled the scene. Witnesses told the police the direction that he

went, assisting them in locating him hiding near a shed. The police brought defendant back in

handcuffs, and Anderson immediately identified him as the perpetrator. Hampton was unable to

identify defendant but accurately described the clothing that he had been wearing. Two other

witnesses also accurately described defendant’s clothing. Near the shed, the police recovered

clothing that matched the descriptions of defendant’s clothing. A gun was also found that

matched shell casings found at the crime scene and bullet fragments taken from Hampton. A

scarf found near the gun had burrs on it similar to burrs found on defendant’s clothing.

¶5 Before trial, defendant moved to suppress statements that he purportedly made to the

police, arguing that he had not been given Miranda warnings and that the statements were the

product of threats or promises. Defendant did not allege any physical coercion. At a hearing on

the matter, one of the investigating detectives, Terrence Evoy, testified that, when defendant was

interviewed at the police station, defendant had an abrasion on his face from when he was taken

into custody. Evoy testified that he read the Miranda warnings to defendant and that defendant

did not indicate that he wished to exercise his rights. Defendant then made incriminating

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statements. Evoy’s testimony was corroborated by Detective Scott Klecka, who was also present.

Both detectives testified that they did not physically strike defendant or threaten him.

¶6 Defendant, who testified after Evoy and Klecka, contended that he was not given

Miranda warnings, he consistently asked for his lawyer, and he never made any incriminating

statements. Defendant said that, when he was arrested, he was thrown to the ground. He was later

placed in a holding cell, and another man was there with him. He was then taken to an

interrogation room. During his testimony, defendant was not specifically asked about physical

coercion. However, defendant was asked on cross-examination if “[a]nything else happened”

during the interrogation other than that he asked to go to the bathroom. Defendant said “[n]o.”

The court suppressed statements made during defendant’s arrest, when he had asked for an

attorney, but allowed statements made to Evoy.

¶7 Defendant was found guilty, and the trial court sentenced him to 22 years’ incarceration.

Defendant appealed, arguing in part that the court erred in failing to suppress his statements. We

affirmed. People v. Scott,

(2006) (table) (unpublished order under Illinois

Supreme Court Rule 23). On April 30, 2007, the United States Supreme Court denied certiorari.

Scott v. Illinois,

(2007).

¶8 In November 2007, defendant, pro se, filed a postconviction petition. The first page

following his petition was a proof of service in which defendant stated that, on October 28, 2007,

he placed the petition in the prison mail system to be mailed to the clerk of the circuit court of

Du Page County. Defendant listed the address for the clerk as “Box 707” in Wheaton and listed

the zip code as “60189-0707,” 1 but listed the zip code at the same box number for the state’s

1 At the bottom of the preprinted form on which defendant wrote his proof of service, the

clerk’s zip code is stated precisely this way.

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attorney as “60187.” The clerk’s correct zip code is 60187-0707. Du Page County IL−Clerk of

the Circuit Court, The County of Du Page, https://www.dupageco.org/CourtClerk (last visited

May 20, 2019) [https://perma.cc/9Z79-JJ8M]. Following the proof of service was a motion to

proceed in forma pauperis and an “affidavit.” The affidavit, dated October 28, 2007, but not

notarized, stated that, pursuant to “735 ILCS 5/109 [sic]” and under penalty of perjury,

“everything contained herein” was true and accurate to the best of defendant’s knowledge and

belief. The record contains an envelope for the mailing postmarked October 31, 2007, and it was

filed with the trial court on November 6, 2007.

¶9 The trial court summarily dismissed the petition, finding that it was untimely and did not

state the gist of a constitutional claim. Defendant appealed, contending that his trial counsel was

ineffective for failing to investigate and call a witness at trial who he contended was a witness to

violations of his Miranda rights and to physical abuse by the police. We noted that the trial court

could not dismiss the petition on the basis of untimeliness at the first stage, but we affirmed

because defendant failed to provide an affidavit from the witness. However, when defendant

petitioned for rehearing and presented an affidavit from the witness, Jon McClain, we granted the

petition and reversed and remanded for further postconviction proceedings. People v. Scott,

(2010) (table) (unpublished order under Illinois Supreme Court Rule 23). We

noted that, if defendant’s counsel had presented the witness and the trial court had found him

credible, the result of the motion to suppress might have been different. Thus, in light of the

affidavit, it was at least arguable that counsel was ineffective. Scott, slip order at 7.

¶ 10 In October 2015, after an unexplained lengthy delay, defendant’s postconviction counsel

filed an amended petition raising multiple issues. In particular, the petition alleged that trial

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counsel was ineffective for failing to investigate and call McClain and to investigate defendant’s

allegations that the police abused him.

¶ 11 Defendant attached an affidavit in which he averred that he had been placed in a holding

cell with a man he did not know. He averred that he never asked to speak to police officers and

repeatedly asked to speak to his attorney. He was removed to an interrogation room, where Evoy

and Klecka punched him in the face multiple times. Defendant averred that he told his attorney

that he had been abused and that a witness could corroborate his claims, but his attorney told him

that these facts were irrelevant because there was not enough evidence to convict him. He also

averred that he asked his appellate attorneys to raise the issue but that they told him that it should

be saved for a postconviction petition. After defendant was transferred to a different correctional

center, he learned that McClain was the person who had been in the holding cell with him.

¶ 12 Defendant also attached an affidavit from McClain, who averred that he shared the

holding cell with defendant and heard defendant ask for an attorney. He averred that, when

defendant refused to answer questions, an officer said “ ‘You will talk to our detectives.’ ” Later,

two officers came and defendant told them that he wanted to talk to his attorney. The officers

took defendant from the cell. McClain averred that, when defendant returned, he had a cut over

his eye and some swelling, which were not present before he was taken away. According to

McClain, the officers returned, defendant again said that he wanted his attorney and had nothing

to say to them, and they took defendant away again. McClain then did not see him again.

¶ 13 In March 2016, the State moved to dismiss, arguing that the petition was untimely and

that defendant had not made a substantial showing of a constitutional violation. After hearing

argument on both the issue of timeliness and the merits, the trial court dismissed the petition as

untimely without addressing the merits. The court found that defendant had until October 30,

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2007, six months from the date that certiorari was denied, to file his petition. Contrary to the law

at the time of the filing, defendant failed to file a notarized affidavit to show that the petition was

put in the prison mail before October 30, 2007. Noting that the law had since changed to allow

proof of mailing under section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109

(West 2016)), the court held without further explanation that, even if the new law applied, the

proof of mailing did not comply with it. Thus, the court found that, because the postmark and

filing were after October 30, 2007, the petition was untimely. Defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 Defendant first contends that the trial court erred when it found that his petition was

untimely. He argues that the change in the law applies retroactively and that his proof of service

and affirmation under penalty of perjury satisfied the new law, making his petition timely. In

reply, the State concedes that the change in the law is retroactive, but argues that it nevertheless

does not apply to defendant and that defendant failed to satisfy its requirements. The State also

argues that, even if the petition was timely, we should affirm on other grounds because defendant

failed to make a substantial showing of a constitutional violation.

¶ 16 In regard to timeliness, “ ‘[u]nder the mailbox rule, pleadings, [and] posttrial motions

[citation], are considered timely filed on the day they are placed in the prison mail system by an

incarcerated defendant [citation].’ ” People v. Liner,

, ¶ 13 (quoting

People v. Shines,

). To rely on the date of mailing as the filing

date, a defendant must provide a proof of mailing that complies with Illinois Supreme Court Rule

12 (eff. Nov. 15, 1992). See Ill. S. Ct. R. 373 (eff. July 1, 2017). When defendant filed his

petition, Illinois Supreme Court Rule 12(b)(3) (eff. Nov. 15, 1992) required a notarized affidavit

stating the time and place of mailing, the complete address that appeared on the envelope, and

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that proper postage was prepaid. See Liner,

, ¶ 14. However, Rule

12(b) was subsequently amended to allow a pro se litigant in a correctional institution to enclose

a certification pursuant to section 1-109 of the Code, in lieu of an affidavit, “of the person who

deposited the document in the institutional mail, stating the time and place of deposit and the

complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept.

19, 2014) (now Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)).

¶ 17 The parties do not point to case law specifically holding that the amendment to Rule

12(b) applies retroactively. Our first step is to “look to the rule itself to ascertain whether its

temporal reach has been specifically articulated.” People v. Easton,

, ¶ 15. Here,

the amended rule’s text contains no such articulation, and the supreme court did not delay the

rule’s effective date, which would have expressed an intent that it apply only prospectively

(People v. Barr,

). See Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014).

(Although the court delayed the effective date of the amendment that, among many other things,

moved Rule 12(b)(4) to Rule 12(b)(6) (see Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)), the State

does not make any argument relying on that delay.) Thus, we must apply section 4 of the Statute

on Statutes (5 ILCS 70/4 (West 2016)). Easton,

. Under that section, “an

amendment that is purely procedural will apply retroactively unless a constitutional impediment

precludes its application.”

That principle applies to amendments to Illinois Supreme Court

rules. Id. ¶ 18. Here, the State concedes that the amendment to Rule 12(b) is generally retroactive

under section 4, but argues that, under People v. Hunter,

, it should not apply to

defendant, because his “proceeding” was complete when he filed his proof of service, before the

rule was changed.

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¶ 18 In Hunter, our supreme court noted that section 4 “contemplates the existence of

proceedings after the new or amended statute is effective to which the new procedure could

apply.” Id. ¶ 31. The court held that, when proceedings in the trial court were completed before

the amendment, there were no ongoing proceedings to which the amendment could apply. Thus,

because the defendant’s trial court proceedings had been concluded, and no further proceedings

were necessitated by reversible error, applying the amended statute retroactively to the

defendant’s case would effectively create new proceedings for the sole purpose of applying the

statute. Id. ¶ 33; see also Easton,

.

¶ 19 Here, Hunter is distinguishable. Although defendant had already filed his proof of

service, there were ongoing proceedings to which the amendment could apply. Before the date of

the amendment, we reversed the judgment and remanded the case, in part because the trial court

could not rule on timeliness at the first stage. The court then did not address the matter on

remand until after the rule was amended. Accordingly, there were proceedings to which the

amended rule could apply. As a result, the amended rule applies retroactively to defendant.

¶ 20 The next question, then, is whether defendant met the requirements of the amended rule.

Defendant contends that his proof of service, when read together with his affirmation under

penalty of perjury, complied with the amended rule.

¶ 21 As noted, the amended rule provides that an incarcerated pro se litigant may prove

mailing by enclosing a certification under section 1-109, stating, inter alia, “the complete

address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014)

(now Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017)). Section 1-109 requires that the defendant

“shall subscribe to a certification in substantially the following form: Under penalties as

provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the

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undersigned certifies that the statements set forth in this instrument are true and correct,

except as to matters therein stated to be on information and belief and as to such matters

the undersigned certifies as aforesaid that he verily believes the same to be true.” 735

ILCS 5/1-109 (West 2016).

The certification “may be used in the same manner and with the same force and effect as though

subscribed and sworn to under oath.”

“ ‘Although minor defects will be excused, proof of

proper service by mail must be made in substantial compliance with the requirements of

Supreme Court Rule 12 [citation].’ ” Liner,

, ¶ 17 (quoting Ingrassia v.

Ingrassia,

(1987)). A slight defect in the form of the proof of service,

such as a typographical error, misspelling, or other inadvertent mistake, will normally not be

fatal. See Curtis v. Pekin Insurance Co.,

(1982); see also Secura

Insurance Co. v. Illinois Farmers Insurance Co.,

(2009) (citing Curtis,

).

¶ 22 The State notes that defendant’s proof of service did not contain the certification

language from section 1-109 and that the separate affirmation under penalty of perjury, which

did state it, failed to name the document that it applied to. The State also notes that the proof of

service did not contain the complete address of the court, because it failed to list the street

address and it had the wrong zip code.

¶ 23 Contrary to the State’s contention, the affirmation under penalty of perjury made clear

that it applied to all the documents that defendant filed. It explicitly stated that it applied to

“everything contained herein,” and it was situated immediately after defendant’s proof of service

and motion to proceed in forma pauperis.

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¶ 24 As to the address, the question is whether the failure to list the street address and the

misstatement of the zip code were minor defects that could be excused. In Liner, the Third

District held that the failure to include any address was not merely a minor defect, because the

amended rule required the certification to include the complete address to which the document

was to be delivered. Liner,

, ¶ 17. Merely naming the court in which

the document was to be filed did not constitute substantial compliance.

Here, however, the

address was substantially correct. While the street address was not provided, the post office box

was, and the mistake in the zip code was very slight. (It was also completely understandable, as

the preprinted form contained the same mistake.) There is also no dispute that the petition was

delivered to the clerk and filed. Thus, we find that the proof of service substantially complied

with the requirement that it state a complete address. As a result, defendant’s petition was timely

filed, and the court erred in dismissing it as untimely.

¶ 25 Defendant asserts that, because his petition was timely filed, a remand is necessary. The

State, however, contends that we should affirm on other grounds because the petition failed to

make a substantial showing of a constitutional violation. Defendant initially filed a reply brief

standing on his argument that a remand is necessary because his petition was timely. However,

we ordered defendant to file a supplemental brief addressing the merits.

¶ 26 The law is clear that we may affirm the trial court’s judgment on any basis supported by

the record. See People v. Little,

(2003). At the first stage of

postconviction proceedings, we have held that a procedurally proper summary dismissal based

on an improper ground may be affirmed on other grounds. People v. Dominguez,

(2006). That logic has been applied to second-stage proceedings. People v. Snow,

.

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¶ 27 Defendant relies on People v. Lander,

(2005), to assert that we are

required to remand the case. There, a remand was required because the defendant’s attorneys

failed to comply with Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Defendant does not

allege such a violation here. Thus, Lander does not require a remand. Instead we may consider

the merits.

¶ 28 As to the merits, defendant raises two claims that he contends made a substantial showing

of a violation of a constitutional right. He first argues that his counsel was ineffective for failing

to investigate and call McClain to support defendant’s motion to suppress based on his

invocation of his right to counsel. He next argues that counsel was ineffective for failing to

challenge his statements as being the product of physical coercion. The State contends in part

that defendant cannot show prejudice, because the evidence against him was overwhelming.

¶ 29 The Act provides a three-stage process for the adjudication of a postconviction petition.

People v. Johnson,

, ¶ 14. At the second stage, “the defendant bears the burden

of making a substantial showing of a constitutional violation” and “all well-pleaded facts that are

not positively rebutted by the trial record are to be taken as true.” People v. Pendleton,

(2006). The court reviews the petition’s factual and legal sufficiency in light of the trial

record and the applicable law. People v. Alberts,

(2008). We review the

trial court’s second-stage dismissal de novo. Pendleton,

.

¶ 30 Claims of ineffective assistance of counsel may be raised in a postconviction petition. See

People v. Brown,

(2010) (citing Strickland v. Washington,

(1984)). “To prevail on a claim of ineffective assistance of counsel, a defendant must show both

that counsel’s performance was deficient and that the deficient performance prejudiced the

defendant.” People v. Petrenko,

(2010). To establish deficient performance,

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the defendant must show that his attorney’s performance fell below an objective standard of

reasonableness. People v. Evans,

(2004). Prejudice is established when a

reasonable probability exists that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.

A defendant must satisfy both prongs of the Strickland

standard, and the failure to satisfy either prong precludes a finding of ineffective assistance of

counsel. People v. Clendenin,

(2010).

¶ 31 Here, as to his claim concerning his right to counsel, defendant failed to make a

substantial showing of a constitutional violation, because he cannot show that he was prejudiced.

Even if he made statements after invoking his right to counsel, the evidence against defendant

was overwhelming independent of those statements. While defendant focuses on Hampton’s

failure to identify him, he ignores that Anderson credibly identified him and that Anderson’s

testimony was corroborated by other evidence. Other witnesses saw defendant flee the scene and

assisted the police in locating defendant hiding near a shed. The clothes described by witnesses

matched defendant’s clothing and items discarded near the shed. The gun involved in the

shooting was found under a deck near the shed. Burrs were found on a scarf found with the gun,

and defendant had similar burrs stuck to his clothing. As a result, aside from any statements that

defendant made to the police, the evidence against him was overwhelming. Thus, defendant has

failed to establish a reasonable probability that, but for counsel’s alleged unprofessional errors,

the result of the proceeding would have been different.

¶ 32 Defendant next contends that counsel was ineffective for failing to investigate and file a

motion to suppress based on his allegations that his statements were the product of physical

coercion. In his petition, he alleged that he told counsel that he was punched by the officers and

that a person in the holding cell could corroborate his claim, but that counsel failed to

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investigate. In his affidavit, he alleged that counsel told him that these facts were irrelevant

because the State did not have enough evidence against him.

¶ 33 The State contends in part that, as with the issue concerning defendant’s assertion of his

right to counsel, defendant cannot show prejudice because the evidence against him was

overwhelming. However, in the context of prejudice for the filing of successive postconviction

petitions, our supreme court has held as a per se rule that “use of a defendant’s physically

coerced confession as substantive evidence of his guilt is never harmless error.” (Emphasis

omitted.) People v. Wrice,

. The court also held that evidence of

coercion is not rendered irrelevant simply because the defendant denied confessing. Id. ¶¶ 53-54.

¶ 34 Here, however, defendant’s assertion that he was physically coerced is rebutted by the

record. Defendant alleged that counsel told him that the potential inadmissibility of his

statements was irrelevant because the State did not have enough evidence to convict him.

However, counsel actually filed a motion to suppress and called defendant to testify at the

hearing on the motion. Plus, at the hearing, defendant never asserted that he was struck by the

detectives. To the contrary, when he was asked on cross-examination whether he recalled

anything else that happened during the interrogation other than that he went to the bathroom,

defendant said “[n]o.” Defendant’s statement that he did not recall anything else that happened

rebuts his later assertion that physical coercion occurred, especially in light of the fact that Evoy

and Klecka testified before defendant did and they said that they did not strike defendant and that

defendant already had an abrasion on his face when they first encountered him. It is unreasonable

to believe that defendant would have never mentioned physical coercion, and would have

specifically answered that nothing else happened, had he been physically coerced and had he

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attempted to get his attorney to address the matter as he claims. Accordingly, defendant’s claim

fails because it is rebutted by the record.

¶ 35 III. CONCLUSION

¶ 36 The judgment of the circuit court of Du Page County is affirmed.

¶ 37 Affirmed.

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