2018 IL App (1st) 160509
No. 1-16-0509
Opinion filed December 27, 2018
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Respondent-Appellee, )
)
v. ) No. 05 CR 18000
)
BRIAN WALKER, ) The Honorable
) Thomas V. Gainer, Jr.,
Petitioner-Appellant. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant Brian Walker was convicted, after a jury trial, of the first degree murder of
Dehombre Barnett. The jury also found that defendant personally discharged the firearm that
caused Barnett’s death. Thus, defendant was sentenced to 28 years, plus an additional 25
years due to a firearm enhancement, for a total sentence of 53 years with the Illinois
Department of Corrections (IDOC).
¶2 Defendant now appeals the first-stage dismissal of his pro se postconviction petition
as frivolous and patently without merit. Although his pro se petition contained several
No. 1-16-0509
claims, he raises only one claim on appeal: that his counsel was ineffective for failing to
inform him of a mandatory 25-year firearm enhancement, thereby leading defendant to reject
a 27-year plea offer from the State. For the following reasons, we do not find his arguments
persuasive and affirm the first-stage dismissal.
¶3 BACKGROUND
¶4 Defendant was charged in a 12-count indictment with various offenses, including first
degree murder and attempted armed robbery, stemming from the shooting death of Barnett at
Barnett’s barber shop on July 8, 2005, during an attempted robbery. Before trial, the State
dismissed all charges except for one count, which was the count for felony murder predicated
on attempted armed robbery.
¶5 In this appeal, defendant does not challenge either the sufficiency of the evidence
against him or the admission of evidence at trial. Therefore, we incorporate by reference our
prior opinion, where we described the evidence in detail. People v. Walker, 392 Ill. App. 3d
277, 279-85 (2009). In sum, the State’s evidence established that defendant and Matthew
Moss, an uncharged co-offender, entered the victim’s barber shop shortly before the murder
and ran out after two gunshots were fired. In a signed statement provided to an assistant
state’s attorney, defendant stated that Barnett sold marijuana from his barber shop, that Moss
intended to rob Barnett, that defendant “would take any of the money or weed” that Moss
“was willing to give,” that the victim, Barnett, pulled out a gun, and that defendant pulled out
his own gun, fired two shots at Barnett, and ran. In the signed statement, defendant admitted
that the gun of his co-offender, Moss, “click[ed]” but did not fire, leaving defendant as the
sole shooter. However, in a stipulation between the parties, a forensic scientist stated that, if
called to testify, he would testify that a gunshot residue test performed on defendant’s hands
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did not detect gunshot residue, but that “gunshot residue particles can be effectively removed
by washing or wiping the surface” or with “normal hand activity over time.” A forensic
pathologist testified that Barnett died as the result of a gunshot that entered above Barnett’s
left temple, above the eyebrow.
¶6 The jury found defendant guilty of first degree murder and also found that he
personally discharged the firearm that proximately caused the victim’s death. At this first
sentencing, the trial court sentenced defendant to 35 years for felony murder, plus the
mandatory 25-year enhancement for killing with a firearm, for a total of 60 years. (There
have been three sentencings, as we describe below.)
¶7 On appeal, defendant claimed: (1) that the trial court abused its discretion by allowing
the State to proceed solely on a felony murder charge, thereby precluding defendant from
seeking jury instructions on self-defense and second degree murder, (2) that the trial court
erred by refusing to allow the defense to present evidence that a co-offender was not charged,
(3) that the trial court erred by refusing to give defendant’s issues instruction on armed
robbery, and (4) that defendant’s sentence was both excessive and improper because the trial
court considered in aggravation matters that were implicit in the offense and facts
unsupported by the evidence.
¶ 8 For reasons already stated in our prior opinion, this court affirmed the judgment of
conviction, but remanded for resentencing, “with instructions that the trial court may not
consider in aggravation the killing by a firearm, because that is a matter implicit in the
firearm enhancement for the felony murder conviction.” Walker, 392 Ill. App. 3d at 303.
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¶9 At the second sentencing, held on May 18, 2010, the trial court sentenced defendant
to 28 years for felony murder, plus 25 years for the firearm enhancement, for a total of 53
years.
¶ 10 On appeal from the second sentencing, this court found that “there is nothing in the
record to show whether the sentencing court considered defendant’s subjective belief that he
shot the victim in self-defense, which is a statutory mitigating factor in sentencing only in a
felony murder case.” People v. Walker, 2012 IL App (1st) 102284-U, ¶ 1. This court vacated
defendant’s sentence a second time and remanded for a third sentencing in order “for the
sentencing court to consider defendant’s [subjective] belief.” Walker, 2012 IL App (1st)
102284-U, ¶ 1.
¶ 11 At the third sentencing, held on December 18, 2012, the trial court considered
defendant’s subjective belief in the need for self-defense and again sentenced defendant to 28
years for felony murder, plus 25 years for the firearm enhancement, for a total of 53 years.
Defendant filed an appeal from the third sentencing, but this court granted counsel’s Anders
motion to withdraw and affirmed defendant’s sentence. Anders v. California, 386 U.S. 738
(1967); In re J.P., 2016 IL App (1st) 161518, ¶¶ 5-6 (pursuant to Anders, appointed counsel
may request leave to withdraw from representation on direct appeal if counsel “conclude[s]
that no viable grounds exist for the appeal”).
¶ 12 In a pro se postconviction petition, filed on November 17, 2015, defendant raised
several claims, only one of which he raises on appeal: that his counsel was ineffective for
failing to inform him of a mandatory 25-year firearm enhancement, thereby leading
defendant to reject a 27-year plea offer from the State. With respect to this claim, the trial
court found, among other things, that “petitioner was aware that if he rejected the purported
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plea offer he could face a sentence of up to 60 years for first degree murder, regardless of any
sentencing enhancement, yet [he] still chose to do so. Petitioner’s actual sentence was not in
excess of the maximum sentence he knowingly risked by rejecting the plea offer.”
¶ 13 Thus, on January 4, 2016, the trial court dismissed the petition as frivolous and
patently without merit, and this appeal followed. On appeal, defendant asks this court to
reverse the trial court’s summary dismissal and remand for second-stage proceedings.
However, defendant does not specify what relief he ultimately seeks from these proceedings.
From his contentions, it appears that he seeks a reversal of his conviction and a remand for
the resumption of plea negotiations and a new trial, if necessary. See People v. Hale, 2013 IL
113140, ¶ 1; People v. White, 2011 IL 109616, ¶¶ 14, 31. However, even if this case was
remanded as defendant seeks, there is no guarantee that the State will again make a 27-year
plea offer, as defendant alleges it previously made.
¶ 14 ANALYSIS
¶ 15 Defendant claims that the trial court erred in dismissing his pro se postconviction
petition as frivolous and patently without merit. On this appeal, defendant raises one claim:
that his trial counsel was ineffective for failing to advise him of a mandatory 25-year firearm
enhancement, leading him to reject a plea offer by the State of 27 years. For the following
reasons, we affirm.
¶ 16 I. Stages of a Post-Conviction Proceeding
¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))
“provides a method by which persons under criminal sentence in this state can assert that
their convictions were the result of a substantial denial of their rights under the United States
Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009);
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People v. Tyler, 2015 IL App (1st) 123470, ¶ 143. Specifically, section 122-1 of the Act
provides:
“(a) Any person imprisoned in the penitentiary may institute a proceeding under
this Article if the person asserts that:
(1) in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the United States
or of the State of Illinois or both[.]” 725 ILCS 5/122-1(a) (West 2016).
The Act permits a person under a criminal sentence to challenge his or her conviction or
sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill.
2d 458, 471 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)).
¶ 18 To be entitled to postconviction relief, a petitioner bears the burden of establishing
that a substantial deprivation of his constitutional rights occurred “in the proceedings that
produced the conviction or sentence being challenged.” Pendleton, 223 Ill. 2d at 471; People
v. Waldrop, 353 Ill. App. 3d 244, 249 (2004); 725 ILCS 5/122-1(a) (West 2016).
¶ 19 In noncapital cases, the Act contemplates three stages. Pendleton, 223 Ill. 2d at 471
72. At the first stage, the trial court has 90 days to review a petition and may summarily
dismiss it, if the trial court finds that the petition is frivolous and patently without merit. 725
ILCS 5/122-2.1(a)(2) (West 2016); Pendleton, 223 Ill. 2d at 472. If the trial court does not
dismiss the petition within that 90-day period, the trial court must docket it for further
consideration. 725 ILCS 5/122-2.1(b) (West 2016); Pendleton, 223 Ill. 2d at 472.
¶ 20 If the petition survives this initial review, the process moves to the second stage,
where the trial court appoints counsel for a petitioner who cannot afford counsel. 725 ILCS
5/122-4 (West 2016). Appointed counsel may make any amendments that are “necessary” to
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the petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42
(2007). After counsel has reviewed and amended the petition if needed, the State may file a
motion to dismiss or file an answer. 725 ILCS 5/122-5 (West 2016); Pendleton, 223 Ill. 2d at
472. If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still
part of the second stage. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).
¶ 21 If the petition proceeds, it advances to a third-stage evidentiary hearing. “[W]hen a
petitioner’s claims are based upon matters outside the record, the Postconviction Act does not
intend such claims [to] be adjudicated on the pleadings.” People v. Snow, 2012 IL App (4th)
110415, ¶ 15; see also 725 ILCS 5/122-6 (West 2016); Pendleton, 223 Ill. 2d at 472-73. At
an evidentiary hearing, the trial court “may receive proof by affidavits, depositions, oral
testimony, or other evidence,” and “may order the [defendant] brought before the court.” 725
ILCS 5/122-6 (West 2016).
¶ 22 When a matter is decided without an evidentiary hearing, we review the trial court’s
decision under a de novo standard of review. People v. Hommerson, 2014 IL 115638, ¶ 6
(first-stage summary dismissal); Tyler, 2015 IL App (1st) 123470, ¶ 151 (citing Pendleton,
223 Ill. 2d at 473 ) (second-stage dismissal). Thus, a de novo standard of review applies to
the case at bar. Under a de novo standard, the reviewing court owes no deference to the trial
court’s judgment or reasoning. Tyler, 2015 IL App (1st) 123470, ¶ 151 (citing People v.
Vincent, 226 Ill. 2d 1, 14 (2007)). De novo consideration means that the reviewing court
performs the same analysis that a trial judge would perform. Tyler, 2015 IL App (1st)
123470, ¶ 151.
¶ 23 In addition, a reviewing court may affirm on any basis found in the record. In re
Gabriel W., 2017 IL App (1st) 172120, ¶ 31; People v. Miles, 2017 IL App (1st) 132719,
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¶ 22; People v. Daniel, 2013 IL App (1st) 111876, ¶ 37 (“we may affirm on any basis
appearing in the record, whether or not the trial court relied on that basis or its reasoning was
correct”).
¶ 24 II. Ineffective Assistance of Counsel
¶ 25 Defendant claims that the trial court erred in dismissing his petition at the first stage
because he made a nonfrivolous claim of ineffective assistance of trial counsel.
¶ 26 Every Illinois defendant has a constitutional right to the effective assistance of
counsel under the sixth amendment to the United States Constitution and under the Illinois
Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala,
2013 IL 113688, ¶ 36. Claims of ineffective assistance are judged against the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36
(citing People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois)). To
prevail on a claim of ineffective assistance, a defendant must show both (1) that counsel’s
performance was deficient and (2) that this deficient performance prejudiced defendant.
Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).
¶ 27 To establish the first prong, that counsel’s performance was deficient, a defendant
must show “that counsel’s performance was objectively unreasonable under prevailing
professional norms.” Domagala, 2013 IL 113688, ¶ 36. To establish the second prong, that
this deficient performance prejudiced the defendant, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland,
466 U.S. at 694). “[A] reasonable probability that the result would have been different is a
probability sufficient to undermine confidence in the outcome—or put another way, that
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counsel’s deficient performance rendered the result of the trial unreliable or fundamentally
unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135
(2007).
¶ 28 Although the Strickland test is a two-prong test, our analysis may proceed in any
order. Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a
trial court may dismiss the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264,
283 (1992). Thus, if a court finds that defendant was not prejudiced by the alleged error, it
may dismiss on that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465,
476 (2003); Albanese, 104 Ill. 2d at 527.
¶ 29 III. Strickland in the Plea Bargain Context
¶ 30 In the plea bargain context, to show prejudice, a defendant must establish certain
factors, as we discuss below. Our supreme court found that the factors listed in People v.
Curry, 178 Ill. 2d 509, 529-30 (1997), no longer control and that the factors set forth in
Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), are the
ones that now control. Our supreme court clearly stated: “Frye and Cooper, rather than
Curry, control and the factors set forth in those cases must now be relied upon in deciding if
prejudice has been shown where a plea offer has lapsed or been rejected because of counsel’s
deficient performance.” Hale, 2013 IL 113140, ¶ 20.
¶ 31 According to Hale, Frye, and Cooper, to show prejudice in the plea bargain context, a
defendant must show a reasonable probability (1) that, but for his counsel’s deficient advice,
he would have accepted the plea offer, (2) that the plea would have been entered without the
prosecution cancelling it, (3) that the trial court would have accepted the bargain, assuming
that it had discretion under state law to accept or reject it, and (4) that “the end result of the
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criminal process would have been more favorable by reason of a plea.” Frye, 566 U.S. at
147; Cooper, 566 U.S. at 163-64; Hale, 2013 IL 113140, ¶ 19.
¶ 32 In addition, “[t]he disparity between the sentence a defendant faced and a
significantly shorter plea offer can be considered supportive of a defendant’s claim of
prejudice.” Hale, 2013 IL 113140, ¶ 18.
¶ 33 In the case at bar, defendant cannot show a reasonable probability that, but for his
counsel’s deficient advice, he would have accepted the plea offer; and, thus, his petition is
patently without merit on the first factor. See Frye, 566 U.S. at 147; Cooper, 566 U.S. at 163
64; Hale, 2013 IL 113140, ¶ 19.
¶ 34 Even without the mandatory firearm enhancement, defendant knew he was facing a
possible 60-year sentence for murder, and the 53-year sentence he actually received was less
than this maximum. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (60-year maximum). 1 In
addition, even without the mandatory enhancement, defendant knew he was facing a possible
20-year minimum for murder. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (20-year minimum).
The alleged plea offer was only seven years more than the minimum that defendant does not
deny he knew of and, thus, on the very low end of his possible exposure. In sum, even if we
accept his allegations as true, defendant was willing to both risk a possible 60-year sentence
for murder and reject an offer of only seven years more than the minimum, in the hope of
being acquitted. See Hale, 2013 IL 113140, ¶¶ 8, 28 (finding no prejudice from a 40-year
total sentence, where “defendant was willing to risk a 30-year sentence and go to trial, rather
than plead guilty in exchange for a 15-year sentence”).
1
Section 5-8-1(a)(1)(a) provides that, for first degree murder, “a term shall be not less
than 20 years and not more than 60 years.” 730 ILCS 5/5-8-1(a)(1)(a) (West 2004).
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¶ 35 Defendant was willing to take this risk even though he knew that his criminal history
demonstrated both a resistance to change and a prior involvement with drugs and guns. His
presentence report demonstrates that, on December 13, 2001, he was sentenced to 18 months’
probation for attempted possession of cocaine. On July 17, 2002, a violation of probation
petition was filed. On August 6, 2002, his probation was terminated unsatisfactorily when he
was sentenced for new offenses, namely, six years for the manufacture or delivery of cocaine
and three years for the possession of a weapon by a felon, to run concurrently. On July 8,
2005, shortly after his release from his prior drug and weapons charges, the instant offense
occurred, which also involved drugs and weapons. In this offense, defendant, according to
his own statement, shot the victim whom he hoped would be a source of drugs, money, or
both. Despite a criminal history that demonstrated a resistance to change, defendant chose to
reject a plea offer that was only seven years above the minimum that he does not deny he
knew of. In three sentencings before two different trial judges, defendant did not receive the
minimum.
¶ 36 The “showing of prejudice must encompass more than a defendant’s own
‘ “subjective, self-serving” ’ testimony.” Hale, 2013 IL 113140, ¶ 18. The petition at bar is
not at the third-stage evidentiary hearing phase of the proceedings, as was the petition in
Hale, 2013 IL 113140, ¶ 11. However, even if we assume that defendant received a 27-year
plea offer from the State, that this offer remained open until the start of trial, that his petition
asserts that he would have accepted this offer if he knew of the mandatory enhancement, and
that his counsel failed to inform him of it, there is still nothing alleged in the petition to show
prejudice, except for defendant’s own subjective, self-serving remarks. See Hale, 2013 IL
113140, ¶ 18. A court may consider a disparity between “the sentence a defendant faced” and
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a plea offer as objective evidence supporting defendant’s claim. Hale, 2013 IL 113140, ¶ 18.
However, as we explained above, this consideration does not help defendant here. Thus, even
if we accept his contention that his attorney failed to inform him of the enhancement, he
cannot show prejudice on the facts observed in this case.
¶ 37 Our supreme court in Hale concluded that it would be unnecessary to review the other
arguments of the State since we have already concluded that defendant cannot establish the
prejudice prong of defendant's claim of ineffective assistance of trial counsel. Hale, 2013 IL
113140, ¶ 30 ("we find it unnecessary to examine the additional factors necessary for a
finding of prejudice").
¶ 38 In conclusion, on the particular facts of this case, we find that defendant cannot show
prejudice where he faced a possible 60-year sentence, even without the 25-year firearm
enhancement, and where his 53-year sentence is less than the 60 years he was willing to risk.
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, we affirm the trial court’s first-stage dismissal of
defendant’s pro se postconviction petition.
¶ 41 Affirmed.
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