NOTICE
2016 IL App (5th) 130554
Decision filed 09/07/16. The
text of this decision may be NO. 5-13-0554
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 07-CF-211
)
BRANDON JOHNSON, ) Honorable
) James Hackett,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Presiding Justice Schwarm and Justice Moore concurred in the judgment and
opinion.
OPINION
¶1 The defendant, Brandon Johnson, appeals the order of the circuit court of Madison
County that denied his petition for postconviction relief. For the following reasons, we
affirm.
¶2 FACTS
¶3 The complicated history of this case requires that we recite the facts in extended
detail. In April 2009, the defendant was convicted, following a jury trial, of aggravated
battery of a child. The conviction resulted from events that allegedly occurred on or about
January 22, 2007. The crux of the State's theory was that the defendant had severely
1
physically abused his three-month-old son, T.M., which resulted in a constellation of
injuries, causing T.M. great bodily harm. A few days prior to trial, the State amended the
charge in the indictment, adding more limiting language, which then alleged that
defendant "shook and beat T.M. causing a skull fracture and a broken arm, in violation of
720 ILCS 5/12-4.3."
¶4 The record reveals that Dr. Spivey was on call the afternoon that T.M. was
brought to Children's Hospital in St. Louis, Missouri. Dr. Spivey is a physician with
special training in child protection, which included as a part of that training "putting
everything together on what might have caused injuries." Dr. Spivey testified that on the
day T.M. arrived at Children's Hospital, she interviewed the defendant, who indicated
that there were "no falls, no accidents." At the State's request, Dr. Spivey authored an
affidavit that identified six injuries suffered by T.M. Those injuries were identified as (1)
"a right parietal comminuted skull fracture with associated soft tissue swelling," which
means a "break in the bone on the side of the head that's complex, meaning it took a lot of
force"; (2) bilateral acute subdural hemorrhage(s), which means "bleeding around the
brain"; (3) chronic bilateral subdural hematoma(s), which means "older brain bleeds"; (4)
a "left distal radial and ulnar buckle fracture," which means a fracture of the two bones in
T.M.'s forearm; (5) "global hypoxia ischemic injury," which means a "widespread brain
injury" that is an "injury to the brain matter itself"; and (6) "retinal hemorrhages," which
refers to bleeding at the back of the eyes, is frequently associated with acceleration-
deceleration injuries to the brain, and is used as part of the diagnosis for "shaken baby
syndrome." The State alleged that defendant caused these severe injuries to T.M.
2
¶5 In his defense, the defendant claimed that while holding T.M., he tripped over the
baby's "bouncy chair" and fell in such a manner that T.M.'s head struck a coffee table.
The defendant further explained that when he fell, he landed on top of T.M. During trial,
the State posed a hypothetical to Dr. Spivey as to whether T.M.'s injuries could have
occurred as a result of the fall described by the defendant. Over objection by defense
counsel, Dr. Spivey opined that "[o]ne fall with one impact would not have caused all
these areas; all this injury in different areas of [T.M.'s] body." Dr. Spivey further testified
that, to a reasonable degree of medical certainty, the injuries to T.M. were "inflicted
injuries" and "[t]hey are nonaccidental injuries."
¶6 The State also presented testimony from Dr. Jeffrey Leonard, a pediatric
neurosurgeon at Children's Hospital. Dr. Leonard was the admitting neurosurgeon for
T.M. and was responsible for supervising his care while at Children's Hospital. Dr.
Leonard was also responsible for reviewing all cases of traumatic brain injury that were
admitted to the hospital. With the assistance of a computerized tomography (CT) scan
shown to the jury, Dr. Leonard testified that T.M. had suffered a comminuted complex
skull fracture that was depressed below the level of the skull. Dr. Leonard also explained
the neuroanatomy of subdural hematomas and explained their significance in causing the
brain damage suffered by T.M. As a part of his medical opinions regarding T.M.'s
complex skull fracture and the existence of the subdural hematomas, Dr. Leonard
testified that, in his experience, these types of injuries required a fall from a distance "of
greater than 4 feet." Ultimately, Dr. Leonard opined, "In the constellation of [T.M.'s]
injuries, I have never seen a simple fall produce this level of injury." Dr. Leonard
3
rendered an opinion, to a reasonable degree of medical certainly, that "[T.M.] was the
victim of nonaccidental trauma."
¶7 Counsel for the defendant did not present any of his own expert witnesses.
Instead, he chose to cross-examine the State's witnesses with regard to both the State's
theory of the case and the defendant's account that the injuries suffered by T.M. were
accidental. More specifically, defense counsel questioned Dr. Spivey regarding her
knowledge and expertise by asking her whether she was familiar with the New England
Journal of Medicine and the American Journal of Forensic Medicine and Pathology.
Defense counsel then used a medical article to cross-examine Dr. Spivey regarding the
issue of "shaken baby syndrome," asking whether she agreed with the statement that,
"Objective evidence strongly suggests that we should abandon the term shaken infant
syndrome and instead use an actual description of the injury mechanism, i.e., rotational
deceleration. Admittedly we do not know the force required to cause the injury." The
defendant's trial counsel also elicited testimony that Dr. Spivey had never been provided
with the defendant's written statement, wherein he gave his version of what had occurred
during the fall over the "bouncy" chair. Defense counsel indicated he had been through
all of the medical records from Children's Hospital, and Dr. Spivey's name appeared on
only two entries out of all the pages produced. In addition to the cross-examination
tactics attacking Dr. Spivey's credibility, defense counsel also spent a considerable
amount of time questioning Dr. Spivey about the biomechanical mechanism of "shaken
baby syndrome" and the causes of subdural hematomas and hemorrhagic brain bleeds,
including the multitude of causes for acceleration-deceleration injuries, retinal
4
hemorrhages, and other forms of brain injuries. In essence, trial counsel attempted to
invalidate Dr. Spivey's testimony and attack her credibility through the technique of
cross-examination.
¶8 The defendant's trial counsel also cross-examined Dr. Leonard. Counsel posited
the defendant's version of events as a hypothetical and asked whether such a scenario
could cause the type of skull fracture suffered by T.M. Dr. Leonard agreed that such a fall
could, indeed, result in such a fracture. When defense counsel began inquiring about the
subdural hematomas, Dr. Leonard disagreed and indicated that the kind of brain
movement suggested by the hypothetical did not produce the types of subdural
hemorrhages diagnosed in T.M. Defense counsel continued his cross-examination with
variations of the hypothetical facts that supported the defendant's version of what had
occurred, all in an attempt to prove that the injuries were accidental.
¶9 In addition to the medical testimony, the State also presented the voluntary,
written statement given to police by the defendant on January 23, 2007, the day after
T.M. was taken to the hospital. In that statement, the defendant conceded that when he
and T.M.'s mother had taken T.M. to the hospital the day before, the defendant had not
informed any medical personnel about the alleged fall with T.M. In fact, the defendant
had "denied dropping him or bumping into anything with him." At the conclusion of the
State's case, the defendant's attorney made a motion for acquittal. He argued that the State
had failed to prove that T.M.'s injuries were inflicted by the defendant and not the result
of the fall as described by the defendant. The defendant's counsel also argued that the
medical discrepancies regarding the nature of T.M.'s injuries that he elicited during his
5
cross-examination of Dr. Spivey and Dr. Leonard proved that the State could not meet its
burden of proof. The State responded that both physicians had testified that the injuries
suffered by T.M. were "nonaccidental" and that the State's burden only required proof of
great bodily harm. The court denied the defendant's motion.
¶ 10 The only individual called during the defendant's case was Sergeant Gunderson,
who indicated that he took the defendant's written statement. He could not remember
whether he gave that written statement to the hospital or any medical personnel. The
defense rested without calling the defendant as a witness. Counsel for the defendant
renewed his motion for acquittal, and the court denied the defendant's motion. The jury
subsequently found the defendant guilty.
¶ 11 On May 12, 2009, the defendant filed a pro se motion for a new trial and a pro se
motion in arrest of judgment. In paragraph 9 of his motion for a new trial, the defendant
claimed:
"The defendant's counselor was ineffective in his assistance to the defendant, in
that he failed to file a motion for or request a continuance to adjust to the changes
in the charges, he failed to file the paper motion(s) in regards to the admissibility
of certain evidence, he failed to diligently attempt to retain the services of a
forensic pathologist or a medical examiner prior to trial, he failed to interview any
of the state's witnesses prior to trial, and he was unprepared for trial; he was
concerned more with seeking a favorable plea agreement than with providing an
effective defense."
6
Paragraphs 10 through 16 of the pro se motion for new trial referred to the medical
evidence introduced by either Dr. Spivey or Dr. Leonard. Defense counsel had also filed
a posttrial motion, wherein he claimed, among other matters, that there was insufficient
medical evidence to support a finding of guilt and that the court erred in denying the
defendant's motion for a continuance after the State dismissed three of the existing counts
of the indictment and amended a count just prior to trial.
¶ 12 On May 21, 2009, the parties convened for a hearing on the defendant's posttrial
motions and for sentencing. The court recognized that the defendant had filed several pro
se motions, including a motion for a new trial. The defendant's trial counsel had also filed
a motion for a new trial. Some of the defendant's claims of error overlapped those raised
by his trial counsel. Other allegations in the defendant's pro se motions raised the issue of
ineffective assistance of counsel. The trial judge explained to the defendant and his
counsel that the defendant's pro se allegations of ineffective assistance of counsel
required further inquiry, specifically referencing "Krankel" (see People v. Krankel, 102
Ill. 2d 181, 464 N.E.2d 1045 (1984)). The court recognized its obligation to allow the
defendant to explain each and every allegation in his pro se posttrial motion, so that the
court could make a preliminary determination as to whether the defendant needed
separate counsel appointed to assist the defendant with his posttrial motions. After some
discussion with the defendant, the court held that, based upon the allegations set forth in
the pro se motions and the fact that the court had heard the evidence at trial, there was no
need to have a separate attorney appointed to advance the arguments being made by the
defendant. Thereafter, even though the court did not believe the defendant's contentions
7
were "meritorious," the court allowed the defendant to explain his reasoning for each and
every allegation in his pro se petition that, in the defendant's mind, supported a claim for
ineffective assistance of counsel (hereafter, the "Krankel hearing"). The court also
combined the defendant's pro se motion in arrest of judgment with the ongoing
discussion of the defendant's allegations in his pro se motion for a new trial. As to each
and every allegation in the motion to arrest judgment, the court continued to allow the
defendant to explain, in detail, the nature of his concerns.
¶ 13 One of the defendant's major claims of ineffective assistance of counsel dealt with
the failure to retain an expert witness to refute the affidavit of Dr. Spivey and the failure
of trial counsel to offer the jury a medical explanation for T.M.'s injuries. The defendant
claimed he was prejudiced by the use of Dr. Spivey's affidavit, alleging that the injuries
were all listed separately. "[T]hey split them up *** to make it seem like I beat the crap
out of my son. *** But my son had not one bruise on his body, not one broken rib." The
defendant claimed the State "listed all these individual results as a way to throw the jurors
off, when they were all part of one main action."
¶ 14 The court allowed the defendant to discuss the pros and cons of the impact of Dr.
Spivey's testimony. In response, however, the court indicated that the doctor's testimony
was "much more clear" than the defendant claimed. After having allowed the defendant
to fully state the bases for each of the claims set forth in his pro se motion for new trial
and motion in arrest of judgment, the court denied the motions. The court made a finding,
on the record, stating:
8
"I thought, under the circumstances, [trial counsel] did a very good job, and I think
he also used what he had available. Particularly, what I recall–and I haven't looked
at my notes lately, but particularly I recall that he used information he had
researched about some of these injuries to cross-examine the Doctor. That's
certainly not being unprepared."
The defendant then responded, "I think he did a good job, too, but I think we could have
did a better job, is what I–what I ultimately mean to say. He did a good job, but we could
have did a better job."
¶ 15 The court found there was sufficient evidence to support the jury's verdict and also
denied the motion for new trial filed by the defendant's attorney. The court then heard
evidence in aggravation and mitigation. After arguments of counsel regarding sentencing,
the court made further statements regarding its opinion of defense counsel's
representation of the defendant, as follows, "And contrary to the allegations, I point out,
too, [defense counsel], I would compliment you on how you apparently analyzed the case
and worked hard to get your points in defense of Mr. Johnson." The defendant was then
sentenced to 29 years in prison.
¶ 16 On June 19, 2009, the defendant's trial counsel filed a notice of appeal.
Thereafter, on July 7, 2009, a notice of substitution of counsel was filed, and new counsel
entered an appearance on behalf of the defendant. Thereafter, this court affirmed the
defendant's conviction for aggravated battery of a child. See People v. Johnson, No. 5-09-
0661 (2010) (unpublished order under Supreme Court Rule 23).
9
¶ 17 Following his unsuccessful appeal, the defendant, on April 9, 2012, filed a pro se
postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2012)). The defendant also filed an application to sue as a poor
person and a motion for appointment of counsel. The allegations set forth in the
defendant's April 2012 pro se postconviction petition were almost identical to those set
forth in his May 12, 2009, pro se posttrial motions that had been considered by the trial
court in the Krankel hearing on May 21, 2009.
¶ 18 On April 23, 2012, without any hearing on the motion, the court appointed counsel
for the defendant. The judge who appointed counsel for the defendant was not the trial
judge. Several subsequent hearings were scheduled, but the proceedings were delayed for
appointment of counsel for the defendant. In the meantime, the defendant filed a pro se
motion for addendum, seeking to add additional claims to his April 9, 2012, pro se
postconviction petition. This addendum claimed that the trial court erred in failing to
grant the defendant a continuance of his trial and that appellate counsel had rendered
ineffective assistance of counsel.
¶ 19 The issue of court-appointed counsel was resolved, and the attorney appointed to
represent the defendant then filed additional amendments to the defendant's pro se
postconviction petition and addendum. In the amended postconviction petition, filed
November 30, 2012, postconviction counsel claimed that the defendant's trial counsel
was ineffective based upon multiple theories of inadequate investigation, including
failure to investigate the defendant's case, failure to "do an in-depth investigation of
topics such as acceleration-deceleration theories; and possible causes of the injuries," as
10
well as trial counsel's failure to investigate or call attention to other injuries suffered by
the child. Additional allegations included trial counsel's failure to adequately prepare for
trial and his inadequate representation of the defendant at trial. Postconviction counsel
also claimed that the defendant's appellate counsel failed to raise on appeal the
"numerous ineffective acts or non-acts of the defendant's trial counsel in order to set aside
the defendant's conviction."
¶ 20 The court attempted on several occasions to set the postconviction petition for an
evidentiary hearing. On September 3, 2013, the State filed a motion to dismiss the
defendant's postconviction petition. On September 4, 2013, the parties appeared for the
evidentiary hearing on the defendant's postconviction motions. This time, the judge who
presided over the defendant's trial heard the proceedings. The defendant testified in detail
about the following: (1) why he believed it was essential for his trial counsel to have
hired an expert witness to counter the evidence the State planned to offer, and the
discussions that he and trial counsel had regarding the need for an expert; (2) why it was
crucial that trial counsel investigate, as part of his preparation for trial, the medical
theories upon which the State's witnesses relied; (3) why trial counsel's investigation
needed to include interviewing the State's witnesses; (4) that trial counsel seemed to
focus on guilty plea negotiations instead of finding an expert; and (5) the fact that a
portion of the fee his family paid to his trial counsel had been paid for the specific
purpose of retaining an expert witness who would contest the State's theory of the case.
The State cross-examined the defendant regarding (1) the involvement of his parents in
the preparation of a medical summary for use by trial counsel and the information
11
contained in that summary, (2) the fact that the defendant knew an expert had been
retained but refused to testify, (3) that his defense counsel had cross-examined Dr. Spivey
with the medical records and a journal article, and (4) that the defendant had been
presented with several plea agreements. The defendant's mother also testified that part of
the payment to trial counsel was for the purpose of hiring an expert witness for the
defendant's case.
¶ 21 The defendant's trial counsel failed to appear on September 4 as a result of a
misunderstanding as to who was actually responsible for requesting his appearance.
Therefore, the hearing was recessed and rescheduled. On October 17, 2013, the
evidentiary hearing on the defendant's petition resumed. The defendant's trial counsel
testified as an adverse witness. He testified that he was hired by the defendant's parents
but denied that he had agreed to use a portion of the attorney fee to hire an expert
witness. He acknowledged, however, that "early" in his representation of the defendant,
he had attempted to hire an expert witness from Alabama. Trial counsel had used this
expert witness several times before, and the expert had indicated he thought he might be
of some help. Nevertheless, trial counsel stated that the expert witness declined to
become involved because he was "getting pressure from other forensic pathologists."
After the Alabama expert witness declined to become involved, trial counsel testified he
made no other attempts to hire an expert witness. Trial counsel was not able to remember
many specific details related to his representation of the defendant at trial, as he did not
have his file or a copy of the trial transcript. He only had "Mr. Johnson's motion and the
transcript of the sentencing hearing" that had been sent to him by the defendant's
12
postconviction counsel. Trial counsel could not remember why he waited to interview Dr.
Spivey until three days before the defendant's trial. He could not remember Dr. Leonard's
testimony at trial. Finally, trial counsel was unable to remember specifics about what
kinds of plea bargains the defendant had been offered by the State. He did recall that the
defendant had always maintained his innocence.
¶ 22 On examination by the State, trial counsel indicated he believed that the State had
"overcharged" the defendant, alleging matters the State could not prove. In his words,
"we thought that would be effective for us in our defense. So when you [the State] struck
those charges, that took away from us and that's why I asked for a continuance." Upon
reexamination by postconviction counsel, the following exchange occurred:
"Q. (By Mr. Delaney) So you're sort of saying, I think, if I can paraphrase,
that by striking some of the charges, it took away some of what you thought would
be used to refute the charges that were taken away?
A. Well, not only that, but to show that they basically overcharged and they
charged things they couldn't prove.
Q. Which would help convince the jury that he wasn't guilty?
A. Right."
¶ 23 In rebuttal, the defendant's mother again testified that a portion of the fee paid to
trial counsel had been paid for the specific purpose of retaining an expert witness who
would contest the State's theory of the case. She also testified that when she asked trial
counsel about interviewing witnesses and preparing for trial, he "kept saying that he was
working on it."
13
¶ 24 Following the evidentiary hearing, the defendant's petition was denied, and the
State's motion to dismiss was granted. The trial judge filed a written order on October 22,
2013, and held the defendant had not "demonstrated sufficiently that trial counsel's
performance was ineffective or insufficient under Strickland standards." The court further
held that trial counsel's failure to hire an expert witness "itself is not a failure by counsel"
because trial counsel "adequately explained the circumstances and decisions made.
There is no showing of the prospect of a different outcome at trial had another been
called." Additionally, the trial court held that many of the remaining complaints by the
defendant were matters of "[t]rial strategy and tactical decisions" that did not
automatically result in questionable assistance of counsel. With regard to the claim that
appellate counsel was also ineffective, the trial court found no basis for such a claim.
¶ 25 Thereafter, on November 4, 2013, the defendant filed a pro se motion to
reconsider the court's denial of his petition. Defendant's postconviction counsel filed a
supplemental pleading that included two exhibits: a posttrial letter from the defendant's
mother to trial counsel and a 2009 law review article titled, The Next Innocence Project:
Shaken Baby Syndrome and the Criminal Courts. Deborah Tuerkheimer, The Next
Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L.
Rev. 1 (2009). On December 5, 2013, the court denied the motion to reconsider without
comment or analysis, and this timely appeal followed.
¶ 26 ANALYSIS
¶ 27 On appeal, the defendant contends that he was not afforded effective assistance of
counsel from any of the attorneys appointed to represent him. Specifically, the defendant
14
argues that the court erred when it denied his postconviction petition that alleged the
defendant's "trial attorney was constitutionally ineffective in this alleged shaken-baby
case for failing to investigate, timely interview treating physicians, or contact and retain
an expert for record review or trial testimony." The defendant also claims the court erred
in its denial of the defendant's allegation that his appellate counsel was ineffective for
failing to argue, on appeal from the conviction, that trial counsel's representation of the
defendant fell below objectively reasonable standards. Finally, the defendant argues that
his postconviction counsel was ineffective for failing to properly introduce into evidence
the article by Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome
and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009), thus denying the court the
opportunity to hear testimony regarding the significant disagreements in the medical
community over "shaken baby syndrome." Alternatively, the defendant urges that this
court should remand this matter for further, third-stage postconviction proceedings
because the trial court's order made insufficient findings of fact in denying the
defendant's petition.
¶ 28 We begin our analysis with certain procedural aspects that materially impact our
determination of this case. First, subsequent to his trial in 2009, the defendant filed his
own pro se posttrial motions, which were heard and denied after a full Krankel hearing
on May 21, 2009. The essence of the defendant's 2009 pro se posttrial motions was a
claim of ineffective assistance of counsel. As noted in People v. Jackson, "[t]he
procedure developed in Krankel is intended to fully address a defendant's pro se posttrial
claims of ineffective assistance of counsel at the trial level, which would serve to
15
potentially limit issues on appeal or, if such issues are raised on appeal, would provide a
sufficient record for the reviewing court to consider those claims." People v. Jackson,
2016 IL App (1st) 133741, ¶ 69, 50 N.E.3d 66 (citing People v. Jolly, 2014 IL 117142,
¶¶ 29, 38, 25 N.E.3d 1127). The transcript of proceedings clearly disclosed that the court
was well aware of its responsibilities under Krankel and made a preliminary
determination that the defendant did not require additional counsel to represent him on
his ineffective assistance of trial counsel claims.
¶ 29 "New counsel is not automatically required when a defendant raises a posttrial
claim of ineffective assistance of trial counsel." Jackson, 2016 IL App (1st) 133741, ¶ 69,
50 N.E.3d 66 (citing People v. Moore, 207 Ill. 2d 68, 77, 797 N.E.2d 631, 637 (2003)).
Instead, the circuit court must first examine the basis for the defendant's claim, and "[i]f
the court determines that the defendant's factual claim lacks merit or pertains only to
matters of trial strategy, then the court need not appoint new counsel and may deny the
pro se motion." Jackson, 2016 IL App (1st) 133741, ¶ 69, 50 N.E.3d 66 (citing Moore,
207 Ill. 2d at 78, 797 N.E.2d at 637). During the Krankel hearing, the court spent a
considerable amount of time discussing the defendant's allegations. After hearing all of
the defendant's arguments, the court determined the defendant's ineffective assistance of
counsel claims were without merit and denied his motions. Despite the extensive
dialogue between the defendant and the court in pursuit of its responsibilities under
Krankel, however, the record is devoid of any formal order that memorializes the
findings made by the trial court. These findings are contained only in the transcript of
proceedings held May 21, 2009. Regardless of whether a formal order was entered, the
16
defendant's pro se posttrial motions, as well as the transcript of proceedings prepared in
conjunction with the defendant's appeal, clearly revealed the substance of the Krankel
hearing. All of this information would have been evident to the defendant's appellate
counsel.
¶ 30 As noted previously, the defendant filed an appeal from his conviction, which was
affirmed by this court on November 9, 2010. In that appeal, the defendant claimed as one
of his errors:
"whether the State failed to prove the required mental state to sustain a conviction
for aggravated battery of a child because knowing conduct, rather than reckless
conduct, could not be inferred where the mechanism of injury remained
ambiguous, and thus, the motion for acquittal was denied in error." (Emphasis
added.) People v. Johnson, No. 5-09-0661, slip order at 3 (2010) (unpublished
order under Supreme Court Rule 23).
¶ 31 After our review of the record and our prior disposition, it is abundantly clear that
certain matters raised in the defendant's first appeal are mirror images of the many claims
he raised in his pro se postconviction motions regarding ineffective assistance of counsel.
Specifically, the defendant's allegations regarding the lack of proof regarding the
mechanism of injury and the prejudice he suffered as a result of his trial counsel's failure
to call an expert witness all relate to allegations of error he discussed with the court
during the Krankel hearing. In other words, both the trial court and this court have
already considered many of the allegations related to whether the defendant received a
fair trial. As we stated in our prior disposition:
17
"In this case, a rational trier of fact could have properly inferred that the
defendant knew or intended that his conduct would cause great bodily harm to the
infant. This inference could properly be taken from the wide constellation of
injuries to the child, the testimony of the physicians who examined the child, and
the defendant's initial account of the incident. The defendant asserts that his intent
could not be inferred where the mechanism of the child's injuries is ambiguous,
but this assertion is patently false if the statute is interpreted according to its plain
meaning. The actual mechanism of the child's injuries is irrelevant under the
statute, which unambiguously states that the injury may be sustained 'by any
means' (720 ILCS 5/12-4.3(a) (West 2008))." (Emphasis added.) Johnson, slip
order at 11-12.
¶ 32 Assuming, however, for the defendant's benefit, that not all of his allegations were
made a part of his appeal from the conviction, they were certainly a part of the record,
and could have been the basis for that appeal. "A proceeding under the Post-Conviction
Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a
collateral attack on his conviction and sentence based on violations of his constitutional
rights. [Citations.] *** Accordingly, determinations of the reviewing court on direct
appeal are res judicata as to issues actually decided and issues actually that could have
been raised on direct appeal but were not are waived. [Citations.]" People v. Coleman,
168 Ill. 2d 509, 522, 600 N.E.2d 919, 927 (1995). Therefore, the defendant's
postconviction claims regarding trial counsel's ineffective assistance of counsel should
18
have been dismissed under the doctrine of res judicata and forfeiture. People v. Blair,
215 Ill. 2d 427, 831 N.E.2d 604 (2005).
¶ 33 The conundrum we face in this appeal is that the defendant's postconviction
petition was not dismissed. Instead, he was afforded a second judicial forum in which to
voice, once again, his claims of ineffective assistance of counsel. The trial court allowed
the defendant an evidentiary hearing under the Act (725 ILCS 5/122-1 et seq. (West
2012)). Normally, only when a defendant makes a substantial showing of a constitutional
violation does the petition advance to the third stage, where the trial court conducts an
evidentiary hearing. 725 ILCS 5/122-6 (West 2012); see also People v. Edwards, 197 Ill.
2d 239, 246, 757 N.E.2d 442, 446 (2001).
¶ 34 Here, the defendant filed a pro se postconviction motion and a motion for the
appointment of counsel almost 1½ years after this court issued its disposition affirming
the defendant's conviction. The record does not reveal why the court appointed counsel
for the defendant. There is no transcript and no order indicating that the court ever
considered the defendant's postconviction motion under the first or second stage of the
Act. The judge who entered the order appointing counsel was not the trial judge. There
was no written order in the court file that indicated a Krankel hearing had occurred.
Likewise, there were no written findings made in the court file. Therefore, it is reasonable
to assume that the judge who was unfamiliar with the trial proceedings simply granted the
defendant's motion for court-appointed counsel, without requiring the defendant to make
any of the showings required under either the first or the second stage of the Act. Thus,
by the time the trial judge scheduled the evidentiary hearing, the defendant was the
19
beneficiary of being able to present his claims, once again, in the form of a third-stage
evidentiary hearing.
¶ 35 At this third stage, the defendant had the burden of showing that he had "suffered
a substantial deprivation of his federal or state constitutional rights in the proceedings
that produced the conviction or sentence being challenged." People v. Pendleton, 223 Ill.
2d 458, 471, 861 N.E.2d 999, 1007 (2006). In our view, the court held a hearing on
claims that were already barred by the doctrines of res judicata and forfeiture.
¶ 36 Nevertheless, the defendant urges that the doctrines of forfeiture and res judicata
should not bar his claims, as he has also alleged that appellate counsel was ineffective for
failing to raise the defendant's allegations that he was denied his sixth amendment right to
effective assistance of trial counsel. It is true that the defendant is guaranteed effective
assistance of counsel on appeal from a conviction, and our supreme court has held "that
the doctrine of waiver should not bar consideration of an issue where the alleged waiver
stems from incompetency of counsel on appeal." People v. Coleman, 168 Ill. 2d 509,
522-23, 660 N.E.2d 919, 927 (1995).
¶ 37 Claims of ineffective assistance of appellate counsel are measured against the
same standard as those dealing with the ineffective assistance of trial counsel. People v.
Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1995); People v. Foster, 168 Ill. 2d
465, 474-75, 660 N.E.2d 951, 955-56 (1995). The trial court's order made a specific
finding that defendant had not been prejudiced "under Strickland standards." To succeed
on a claim of ineffective assistance of counsel under the Strickland standard, a defendant
must show that counsel's performance fell below an objective standard of reasonableness
20
and that counsel's deficient performance resulted in prejudice. People v. Ross, 229 Ill. 2d
255, 260, 891 N.E.2d 865, 869 (2008); People v. Shaw, 186 Ill. 2d 301, 332, 713 N.E.2d
1161, 1177 (1998). "Because a defendant must establish both a deficiency in counsel's
performance and prejudice resulting from the alleged deficiency, failure to establish
either proposition will be fatal to the claim." People v. Sanchez, 169 Ill. 2d 472, 487, 662
N.E.2d 1199, 1208 (1996).
¶ 38 Therefore, in order to examine whether the defendant was denied effective
assistance of appellate counsel, we examine the merits of the issues that could have been
raised on direct review as they relate to the defendant's allegations of ineffective
assistance of trial counsel, thus providing the defendant with the proverbial "second bite
at the apple." This circuitous route, then, has brought us back to considering the
defendant's contentions that his trial counsel was ineffective. We have reviewed the entire
record of proceedings, including the Krankel hearing and the trial court's two-day
evidentiary hearing held September 4 and October 17, 2013. Our conclusions based upon
our review of the record are identical with those findings made by the trial court. The
defendant has repeatedly, through verbose postconviction pleadings, made the same
complaints as in his posttrial motions−that he was denied a fair trial because the
mechanism of injury to his son was in dispute and he was never allowed to adequately
present this issue in defense of the charge of aggravated battery of a child. During the
third-stage hearing, the defendant testified repeatedly that he was prejudiced because his
trial counsel did not hire an expert witness to refute the cause of injuries to his son. He
admitted, however, that he was given access to all of the medical records and could have
21
reviewed them. He acknowledged that his parents were also given access to the medical
records, created a summary of the records, and even prepared questions for trial counsel
to ask. The defendant's trial counsel indicated that he asked some of the questions given
to him and cross-examined one of the physician experts with a medical journal. In the
record before us, as a part of the exhibits introduced at this hearing, defendant submitted
a journal article pertaining to "shaken baby syndrome." While there was no evidence
offered at the postconviction hearing on the significance of this article as it related to the
defendant's theory of his innocence, this issue was clearly resolved by this court during
the appeal, i.e., the mechanism of the injury was irrelevant. People v. Johnson, No. 5-09-
0661 (2010) (unpublished order under Supreme Court Rule 23). Moreover, contrary to
the defendant's claims, trial counsel testified that he attempted to obtain an expert but was
unable to do so. It is clear that trial counsel spent a great deal of effort reviewing the
medical records and conducted a thorough and effective cross-examination of the
physicians. Although the State never required trial counsel to disclose the name of the
medical article used to cross-examine Dr. Spivey, it is also clear that the statement trial
counsel pulled from that article was helpful to the defendant. The trial court, on two
separate occasions, found trial counsel to have done the best job he could in defending
the case. Even the defendant, during the Krankel hearing, conceded his trial counsel had
done a "good job." We agree.
¶ 39 Subsequent to the full, third-stage evidentiary hearing under the Act, the court held
the defendant had failed to carry his burden of proof "under Strickland standards." There
is simply no evidence that the defendant was denied effective assistance of counsel at any
22
level. The defendant's postconviction claim of ineffective assistance of appellate counsel
was properly denied by the trial court.
¶ 40 We have reviewed the entire record and considered the multitudes of the
defendant's claims set forth in his many petitions and addendums, as well as relevant case
law. We find that the circuit court's dismissal of the defendant's petition for
postconviction relief was proper.
¶ 41 Affirmed.
23
2016 IL App (5th) 130554
NO. 5-13-0554
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 07-CF-211
)
BRANDON JOHNSON, ) Honorable
) James Hackett,
Defendant-Appellant. ) Judge, presiding.
__________________________________________________________________________
Opinion Filed: September 7, 2016
__________________________________________________________________________
Justices: Honorable Judy L. Cates, J.,
Honorable S. Gene Schwarm, P.J., and
Honorable James R. Moore, J.,
Concur
__________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard,
for Deputy Defender, Daaron V. Kimmel, Assistant Appellate Defender,
Appellant Office of the State Appellate Defender, Fourth Judicial District, 400
West Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-
5240
__________________________________________________________________________
Attorneys Hon. Thomas D. Gibbons, State's Attorney, Madison County
for Courthouse, 157 North Main Street, Suite 402, Edwardsville, IL
Appellee 62025; Patrick Delfino, Director, David J. Robinson, Acting Deputy
Director, Sharon Shanahan, Staff Attorney, Office of the State's
Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2,
P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________