People v. Sutherland

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Sutherland, 2013 IL App (1st) 113072

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIAM SUTHERLAND, Defendant-Appellant.

District & No. First District, Fourth Division
Docket No. 1-11-3072

Filed June 28, 2013
Rehearing denied August 13, 2013

Held The denial of defendant’s motion for leave to file a successive
(Note: This syllabus postconviction petition alleging ineffective assistance of his trial and
constitutes no part of appellate counsel was upheld over defendant’s contention that his failure
the opinion of the court to show cause for his failure to raise the issue in his first postconviction
but has been prepared proceedings should be excused because he was not represented by
by the Reporter of counsel during the first-stage proceedings, since defendant failed to show
Decisions for the that the claim of ineffective assistance had any arguable basis and thereby
convenience of the was unable to satisfy the cause-and-prejudice standard for obtaining leave
reader.)
to file a successive petition.

Decision Under Appeal from the Circuit Court of Cook County, No. 97-CR-12507; the
Review Hon. Clayton J. Crane, Judge, presiding.

Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
J. Keleher, and Joan F. Frazier, Assistant State’s Attorneys, of counsel),
for the People.

Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Epstein and Pucinski concurred in the judgment and opinion.

OPINION

¶1 Defendant William Sutherland appeals from the denial of his pro se request to file a
successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2010)). On appeal, he argues that under the United States Supreme
Court’s recent case, Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), his failure to
raise an ineffective assistance of trial counsel claim in his initial postconviction petition
should be excused because he did not have the aid of legal counsel in drafting the petition.
He contends that fact, plus the alleged prejudice, warrants reversal of the circuit court
judgment. We affirm.

¶2 BACKGROUND
¶3 In August 1998, defendant was tried and convicted by a jury for the 1997 attempted
murder of his former wife, Elaine Sutherland, and his stepdaughter, Erica Ellison. He was
also convicted of home invasion. Trial evidence showed that following domestic abuse
incidents, Elaine asked for a divorce, and defendant responded with a “threatening okay.”
Around 11 p.m. that same evening, defendant burst into the room where Elaine and Erica
were sleeping, turned on the light, then shot Elaine numerous times, in her forearm, chin,
jaw, shoulder, and chest, and also shot five-year-old Erica in the face above her lip. Both
victims survived. Elaine suffered permanent brain damage, including retrograde amnesia, as
a result of the gunshot wounds but was able to testify at trial, albeit without any recollection
of the shootings. Defendant’s conviction therefore rested on the identification testimony of
Erica, who was a six-year-old at the time of trial. Erica testified that she watched as
defendant shot her mother, “bam, bam, bam, bam,” forcing her to fall off the bed onto the
floor before defendant turned the weapon on her. Erica knew it was defendant because she
saw his face and saw he was wearing glasses. A neighbor who entered moments after the
shooting testified that Erica’s exact words were, “Will done shot us.” Police were radioed
to the scene around 11:20 p.m. Erica told three police officers that defendant shot her. She

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 identified him in photographs then and later identified him in court at trial.
¶4 The State also presented the testimony of another neighbor who saw a six-foot man,
sporting glasses, a chin beard, and bearing a “crazy look,” digging inside his car trunk
outside Elaine’s home around 10:30 p.m. on the evening in question; he walked up to the
porch, turned around, looked at the neighbor, then returned to his car and eventually drove
off. She later identified him as defendant. The State posited that defendant returned to
Elaine’s home and committed the shooting about 11 p.m., leaving behind what the evidence
technician later determined was a .22-caliber bullet. A search inside defendant’s trunk
revealed there was a winter mask with the eyes cut out, even though it was April, and rubber
hospital gloves.
¶5 Defendant’s theory of defense was misidentification. He argued that when Erica said her
“daddy” was the shooter, she was referring to her biological father, even though she clarified
to police officers that she was referring to “Will.” Testifying on his own behalf, defendant
admitted that on the evening in question he, along with his three-year-old son by Elaine, was
momentarily present outside Elaine’s home somewhere between 9 p.m. and 10 p.m., but
denied entering the home or shooting Elaine and Erica. After knocking on the window of
Elaine’s home and receiving no answer, he claimed to have driven to his father’s house,
which was 10 to 15 minutes away. He was there but five minutes because he found his father
was either drunk or asleep. He then left and returned to a family party. A former state
correctional officer himself, defendant admitted having owned a .22-caliber pistol, although
he denied owning one at the time of the shooting. At 6 feet and 3 inches, he also admittedly
wore glasses and a chin beard at the time of the crime and at trial.
¶6 Six witnesses testified to either defendant’s whereabouts on the evening in question or
to his peaceful reputation. Defendant’s cousin, for example, testified he left the family party
around 9:40 p.m. and returned some time later, but she was not sure when; defendant’s sister
gave similar testimony but added that defendant returned to the house shortly after 11 p.m.;
defendant’s other sister testified that she was at the party but unaware of defendant’s
presence or absence; finally, an acquaintance at the party testified that defendant left about
10 p.m. and returned by about 10:30 p.m., but her watch was also broken. A seventh defense
witness, Elaine’s neighbor, testified that she saw a car she recognized as defendant’s parked
outside Elaine’s home about 10:30 p.m., but it was gone within 15 minutes; she saw flashing
police lights about 11:20 p.m. An eighth defense witness testified she saw a man who was
not defendant running near the crime scene but did not get a good look at him because she
thought he had a gun. Initially, she testified this was around 11 p.m. or 11:30 p.m., but then
said it was around 10:30 p.m. or 11 p.m., noting she did not have a watch.
¶7 The jury credited the State’s witnesses over the defense and determined defendant was
guilty as charged. Defendant was sentenced to consecutive terms of 30 years’ imprisonment
for the attempted murders of Elaine and Erica, as well as 30 years’ imprisonment for home
invasion, resulting in a total 90-year prison term with the lesser charges merging.
¶8 Defendant filed a direct appeal raising a number of contentions, none of which related
to trial counsel’s effectiveness. This court affirmed defendant’s convictions and sentence.
People v. Sutherland, 317 Ill. App. 3d 1117 (2000), appeal denied, 195 Ill. 2d 594 (2001)

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 (table), cert. denied, 534 U.S. 1105 (2002).
¶9 In 2001, defendant, acting pro se, filed his first postconviction petition under the Act. He
argued that perjured testimony had been introduced at trial, certain witnesses were not
adequately impeached, he was denied the right to cross-examine Erica at the competency
hearing and to present a defense, and the prosecutor committed misconduct. Defendant
claimed that trial and/or appellate counsel was ineffective for these shortcomings. Notably,
in the context of his prosecutorial misconduct claim, defendant asserted the prosecutor
should have been precluded from arguing that the absence of defendant’s father (Sutherland
Senior) as a trial witness implicated defendant’s culpability. For example, the prosecutor
stated in closing that if defendant had really gone to his father’s house, the jury would have
heard from Sutherland Senior. In the initial postconviction petition, defendant specifically
argued his father was unavailable to testify because he was in the hospital at the time of trial.
He cited hospital records in support. Defendant noted his argument could not have been
raised on direct appeal because it involved facts outside the record.
¶ 10 The circuit court summarily dismissed the postconviction petition as frivolous and
patently without merit on the basis of waiver and res judicata. Defendant appealed, and the
dismissal was eventually affirmed. See People v. Sutherland, No. 1-01-3770 (2005)
(unpublished order under Supreme Court Rule 23); see also People v. Sutherland, 345 Ill.
App. 3d 937 (2004) (reversing the summary dismissal); People v. Sutherland, 216 Ill. 2d 727
(2005) (supervisory order) (ordering the appellate court to reconsider the dismissal in light
of People v. Blair, 215 Ill. 2d 427 (2005)).
¶ 11 Defendant then filed a petition for a writ of habeas corpus, which apparently raised many
of the same arguments as the initial postconviction petition. The federal district court denied
the habeas petition and also denied defendant’s request for a certificate of appealability. See
United States ex rel. Sutherland v. Hulick, No. 07 C 3469 (N.D. Ill. Nov. 28, 2007); United
States ex rel. Sutherland v. Hulick, No. 07 C 3469 (N.D. Ill. Feb. 8, 2008). The United States
Court of Appeals for the Seventh Circuit affirmed the district court decision. Sutherland v.
Gaetz, 581 F.3d 614 (7th Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct. 2352 (2010).
¶ 12 In 2009, defendant filed a pro se petition under section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2008)). He alleged the trial court issued an erroneous
jury instruction as to identification testimony, rendering his conviction void. Defendant
added that his trial counsel was ineffective for failing to “investigate the absence” of his
father, Sutherland Senior. In support, defendant attached an October 1999 affidavit from his
father in which Sutherland Senior stated that defendant was at his residence “at or about the
time” Elaine was shot. Sutherland Senior detailed that defendant woke him up, they had a
short conversation, then defendant left about 11:20 p.m. Sutherland Senior stated his home
was at least 15 to 20 minutes from where the shooting occurred and explained he did not
testify to these facts because he was hospitalized at the time of trial and unaware of the
proceedings. The circuit court granted the State’s motion to dismiss the section 2-1401
petition.
¶ 13 On September 29, 2010, defendant filed the instant pro se motion for leave to file a
successive postconviction petition. Defendant raised claims relating to trial error, rehashing

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 many of the same arguments as before. In particular, he alleged yet again that trial counsel
was ineffective for failing to investigate his father’s whereabouts and to call Sutherland
Senior as a witness at trial or, at least, to obtain a continuance and appellate counsel was
ineffective for failing to raise this issue on direct appeal. Although defendant referred to his
father’s affidavit–stating Sutherland Senior could “attest” that defendant was at his residence
when the shooting occurred and that Sutherland Senior did not testify because he was at the
hospital and unaware of the trial proceedings–defendant did not append the affidavit to the
petition.
¶ 14 The circuit court denied defendant leave to file a successive postconviction petition. The
court concluded that the facts alleged had been available when defendant filed his first
postconviction petition; as defendant had not identified any objective factor impeding his
ability to raise the claims earlier, nor identified newly discovered evidence, the court
concluded defendant failed to satisfy the requirements for filing a successive petition. This
appeal followed.

¶ 15 ANALYSIS
¶ 16 The Post-Conviction Hearing Act provides a means for a criminal defendant to assert
that, in the proceedings resulting in his conviction, there was a substantial denial of his
constitutional rights. People v. Evans, 2013 IL 113471, ¶ 10. The Act permits the filing of
only one petition without leave of court (725 ILCS 5/122-1(f) (West 2010)) and expressly
provides that any claim not raised in the original or amended petition is waived (725 ILCS
5/122-3 (West 2010)). To initiate a successive postconviction petition, a defendant must first
obtain leave of court, and unless a defendant asserts actual innocence, leave of court is
demonstrated only when a defendant shows the “more exacting” standard of cause for his
failure to bring the claim in his initial postconviction petition and prejudice resulting from
that failure. 725 ILCS 5/122-1(f) (West 2010); People v. Edwards, 2012 IL 111711, ¶¶ 22-
29; People v. Conick, 232 Ill. 2d 132, 142 (2008). To show cause, a defendant must identify
an objective factor that impeded his ability to raise a specific claim during his initial
postconviction proceedings. Evans, 2013 IL 113471, ¶ 10. To show prejudice, a defendant
must demonstrate that the claim not raised so infected the trial that the resulting conviction
or sentence violated due process. Id. These elements serve as a procedural prerequisite to
obtaining review on the merits (People v. Wyles, 383 Ill. App. 3d 271, 274 (2008)), and both
must be satisfied for the defendant to prevail (People v. Guerrero, 2012 IL 112020, ¶ 15).
A defendant faces “immense procedural default hurdles when bringing a successive post-
conviction petition,” which “are lowered in very limited circumstances” because successive
petitions “plague the finality of criminal litigation.” People v. Tenner, 206 Ill. 2d 381, 392
(2002). In short, such actions are generally disfavored by Illinois courts. Edwards, 2012 IL
111711, ¶ 29.
¶ 17 We review de novo defendant’s contention that he is entitled to file a successive
postconviction petition with respect to the ineffective assistance of trial counsel claim. See
People v. Thompson, 383 Ill. App. 3d 924, 929 (2008). On appeal, defendant acknowledges
he has not shown “cause,” in the traditional sense, because the documents relating to his

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 father were available in 1999, prior to when he filed his first postconviction petition; as such,
his claim is subject to the normal rules of waiver. See 725 ILCS 5/122-3 (West 2010).
Nonetheless, relying on Martinez, defendant argues he should be excused from having to
show cause and forgiven his procedural default because he was not represented by legal
counsel during first-stage postconviction proceedings. In Martinez, the Supreme Court
recognized its prior ruling that an attorney’s ignorance or inadvertence in a postconviction
proceeding does not qualify as cause to excuse procedural default in a habeas proceeding
(see Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)), but then issued a “narrow
exception” to that rule. Addressing Arizona criminal procedure, the Court held that when a
state like Arizona proscribes raising ineffective assistance of trial counsel claims on direct
appeal, and instead reserves them only for collateral proceedings, a prisoner may establish
cause before habeas courts for default of that claim (1) where the state courts did not appoint
counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial
or (2) where appointed counsel in the initial-review collateral proceeding, when the claim
should have been raised, was ineffective under Strickland standards. Martinez, 566 U.S. at
___, 132 S. Ct. at 1318. Martinez emphasized that its ruling would not “provide defendants
a freestanding constitutional claim” requiring the appointment of counsel in initial-review
collateral proceedings; instead, the Court stated it was an “equitable ruling.” Martinez, 566
U.S. at ___, 132 S. Ct. at 1319; see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
(there is no constitutional right to an attorney in state postconviction proceedings).
¶ 18 Defendant’s reliance on Martinez suffers from a number of infirmities, the most obvious
of which is that Martinez addressed federal habeas law and specifically addressed Arizona
criminal procedure. Unlike in Arizona, in Illinois, ineffective assistance claims generally can
be raised after trial and on direct appeal. See People v. Krankel, 102 Ill. 2d 181, 188-89
(1984); see also People v. Miller, 2013 IL App (1st) 111147, ¶ 41 (recognizing this
distinction). Recognizing this, defendant counters by citing People v. Ligon, 239 Ill. 2d 94,
112 (2010), to emphasize that “a collateral postconviction proceeding is most often the first
point at which an ineffective assistance of counsel claim will be presented” (emphasis
added). Defendant argues the instant claim could not have been raised on direct appeal, as
it was outside the record, which is surely a distinction without difference. In addition, after
briefs were filed in this case, defendant filed a motion to cite Trevino v. Thaler, ___ U.S.
___, 133 S. Ct. 1911 (2013), a just-issued United States Supreme Court case addressing
whether Martinez applied in Texas, where a defendant similarly can “in theory” raise a claim
of ineffective assistance of trial counsel on direct appeal, but “as a matter of procedural
design and systemic operation” is forced to raise the claim in collateral proceedings. Trevino,
___ U.S. at ___, 133 S. Ct. at 1921. Trevino held this was not a meaningful distinction and
Martinez therefore applied, allowing a federal habeas court to find “cause” in such an
instance, thereby excusing a defendant’s procedural default. Trevino, ___ U.S. at ___, 133
S. Ct. at 1921. Defendant now argues his case is analogous to Martinez and Trevino and
further emphasizes that the Illinois Supreme Court has relied on the reasoning of federal
habeas cases in adopting certain standards in postconviction proceedings, thus urging us to
do the same. See, e.g., People v. Hodges, 234 Ill. 2d 1, 12-16 (2009); People v. Pitsonbarger,
205 Ill. 2d 444, 459 (2002).

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¶ 19 While we appreciate the arguments raised by defendant’s very capable counsel, these
positions ignore pronouncements on postconviction law by our own state supreme court that
militate against defendant and are not necessarily at odds with Martinez or Trevino. The
Illinois Supreme Court has long held that prisoners do not have a constitutional right to be
represented by counsel in postconviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42
(2007); People v. Porter, 122 Ill. 2d 64, 75-77 (1988). This is so even where those
proceedings are the first tier of review for an ineffective assistance of trial counsel claim.
Ligon, 239 Ill. 2d at 113 (relying in part on Martinez v. Schriro, 623 F.3d 731 (9th Cir.
2010), overruled in part by Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012)). Instead,
as a matter of legislative grace, counsel may be appointed at second-stage postconviction
proceedings. 725 ILCS 5/122-4 (West 2010). What’s more, in People v. Evans, 2013 IL
113471, ¶ 13, our supreme court’s most recent case on successive postconviction petitions,
the court held that the petitioner could not claim ignorance of the law as “cause” to justify
the petitioner’s failure to include a claim in his initial postconviction petition. Yet, that is
essentially the “cause” defendant now presents. Although college-educated, a fact hammered
at during trial, defendant claims he did not have the wherewithal to draft an initial
postconviction petition accusing his trial attorney of unreasonably failing to call a key alibi
witness, defendant’s father, at trial. Under Evans, this argument does not fare well. In
addition, Evans also declined to address certain questions swirling around the area of
successive postconviction petitions and requested that the legislature take the opportunity to
clarify the law. 2013 IL 113471, ¶¶ 12, 18. Given that, we need not add more to the mix.
¶ 20 Significantly, and most significantly, assuming Martinez were to apply here, defendant’s
petition still could not survive even under the strictures of that case. Martinez held that to
overcome procedural default, a defendant must demonstrate the underlying ineffective
assistance claim is a substantial one, meaning one that has merit. Martinez, 566 U.S. at ___,
132 S. Ct. at 1318. That, defendant simply cannot do. See Miller, 2013 IL App (1st) 111147,
¶ 41. And, this brings us to the prejudice prong of our own successive postconviction test in
Illinois. As stated, the test for obtaining leave to file a successive postconviction petition is
cause and prejudice, not cause or prejudice. We note that defendant failed to attach his
father’s affidavit to his successive petition even though it is his burden to submit enough
documentation for a court to make the determination of whether leave should be granted. See
People v. Tidwell, 236 Ill. 2d 150, 161 (2010); see People v. Edwards, 2012 IL App (1st)
091651, ¶¶ 28-29. Even assuming he had, defendant still cannot establish that the claimed
error so infected the trial as to deny him due process. To establish ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must demonstrate
(1) that trial counsel’s performance was objectively unreasonable and (2) that this deficient
performance led to substantial prejudice. People v. Harris, 206 Ill. 2d 293, 303 (2002). As
with the successive postconviction petition test, defendant would have to satisfy both prongs
of the Strickland test, which he cannot do. See Harris, 206 Ill. 2d at 304.
¶ 21 Here, five-year-old Erica, in what can only be characterized as an excited utterance (see
People v. Sutton, 233 Ill. 2d 89, 107-08 (2009)), told her neighbor a moment after the
shooting that “Will done shot us,” then subsequently told three police officers the same, also
identifying defendant in photographs then and later in court. This can be likened to the

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 excited utterance, “Oh, my God, *** Buster just shot Maria,” in the classic People v. Poland,
22 Ill. 2d 175, 179-80 (1961). Erica’s identification of defendant as the shooter was
unequivocal. Given that defendant had been married to her mother since Erica was about age
one, we have no doubt that even a sleepy five-year-old could recognize her bespectacled
stepfather under the scenario. The State presented evidence that Erica’s biological father
neither looked like defendant nor lived in Chicago, thus rebutting defendant’s
misidentification postulation. Significantly, the circumstantial evidence strongly supported
the State’s theory. That evidence included defendant’s harassing behavior leading up to the
day of the shooting, his menacing tone following Elaine’s request for a divorce, his presence
at her home shortly before the shooting–a fact not only testified to by defendant but by a
State and a defense witness–defendant’s admitted prior ownership of a .22-caliber gun, the
discovery of surgical gloves and a face mask in defendant’s trunk, and defendant’s
inconsistent testimony as to why he was even present at Elaine’s home that evening.
Although defendant breathlessly urges that his father could have saved the case, defendant
testified his father was drunk or asleep that evening! This does not invoke the image of a star
witness. Defense counsel downplayed the significance of Sutherland Senior’s absence at trial
during closing argument, which effectively rebutted the State’s claim that Sutherland Senior
was a key witness. It also throws cold water on defendant’s postconviction argument before
this court. It merits mention that Sutherland Senior’s proposed testimony does not even
square up with defendant’s time line. Defendant testified he left for Elaine’s around 9 or 10
p.m., and was there only momentarily before going to his father’s house. Sutherland Senior’s
affidavit also contradicts the testimony of some alibi witnesses who said defendant was back
at the house party by 10:30 p.m. or 11 p.m. Finally, Sutherland Senior’s proposed testimony
taken at face value does not even rebut the State’s theory that defendant committed the
shooting about 11 p.m.; defendant could have done so and then been at his father’s home,
which defendant testified was 10 to 15 minutes away, by around 11:20 p.m. On this record,
defense counsel’s decision not to call Sutherland Senior or to present evidence regarding his
testimony seems reasonable. See Harris, 206 Ill. 2d at 303.
¶ 22 What’s more, defense counsel called eight witnesses on defendant’s behalf and
persistently defended a case where the evidence left counsel with hardly any strategic choice
at all. Given that counsel is presumed to act on sound strategy and judgment (Harris, 206 Ill.
2d at 303-04), had defendant’s father been a truly worthwhile witness, the record supports
that counsel would have pursued the matter. As it stands, defendant cannot establish either
that his counsel was unreasonable in representing him in this specific regard or that there is
a reasonable probability the testimony of his father would have been sufficient to overcome
the State’s competent evidence against him or made defendant more believable and changed
the outcome of the proceeding. See Harris, 206 Ill. 2d at 303-04.
¶ 23 Defendant has failed to establish that the underlying claim of ineffective assistance of
trial counsel has even an arguable basis and has necessarily failed to establish the more
stringent cause-and-prejudice standard to warrant granting leave to file a successive
postconviction petition.
¶ 24 Finally, we note that after the State appellate defender filed the record and its brief in this
appeal, defendant sought leave to file a pro se supplemental brief and reply brief, which this

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 court granted. While we have reviewed defendant’s supplemental briefs, they merit no more
mention because a defendant cannot proceed both by counsel and pro se. People v. Flynn,
341 Ill. App. 3d 813, 821 (2003). Defendant chose to proceed with legal representation on
appeal, and he did not request the withdrawal of appellate counsel.

¶ 25 CONCLUSION
¶ 26 We therefore affirm the decision of the circuit court of Cook County denying defendant
leave to file a successive postconviction petition.

¶ 27 Affirmed.

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