People v. Young

2021 IL App (5th) 190094-U
NOTICE
NOTICE
Decision filed 11/29/21. The
This order was filed under
text of this decision may be NO. 5-19-0094
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Saline County.
)
v. ) No. 12-CF-89
)
ROGER D. YOUNG, ) Honorable
) Walden E. Morris,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court.
Justices Wharton and Vaughan concurred in the judgment.

ORDER

¶1 Held: Because the defendant failed to state the gist of a constitutional claim, and any
argument to the contrary would lack merit, the circuit court’s order summarily
dismissing the defendant’s postconviction petition must be affirmed, and the
defendant’s appointed attorney on appeal must be granted leave to withdraw as
counsel.

¶2 The defendant, Roger D. Young, appeals from the summary dismissal of his pro se petition

for relief under the Post-Conviction Hearing Act. See 725 ILCS 5/122-1 et seq. (West 2018). He

is currently serving a 32-year prison sentence for solicitation of murder for hire. The defendant’s

court-appointed attorney on appeal, OSAD, has concluded that this appeal lacks merit, and on that

basis, has filed a motion to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)),

along with a memorandum of law in support thereof. OSAD properly served the defendant with a

copy of its motion and memorandum. This court gave the defendant ample opportunity to file a

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pro se response, brief, memorandum, etc., objecting to OSAD’s motion or explaining why this

appeal has merit, but the defendant has not done so. This court has examined OSAD’s Finley

motion and memorandum, as well as the entire record on appeal, and has determined that this

appeal does indeed lack merit. Accordingly, OSAD’s Finley motion to withdraw as counsel must

be granted, and the judgment of the circuit court, summarily dismissing the defendant’s

postconviction petition, must be affirmed.

¶3 BACKGROUND

¶4 The Trial and the Direct Appeal

¶5 In April 2012, the defendant was charged with solicitation of murder for hire. See 720

ILCS 5/8-1.2(a) (West 2012). He was accused of procuring another to murder his wife, Linda

Young. In April 2014, the cause proceeded to a trial by jury. For its case in chief, the State called

three witnesses and played two recordings, one audio recording and one audio-video recording.

¶6 David Blazier testified that he was an inspector with the Saline County Sheriff’s Office,

who was assigned to the Illinois State Police (ISP). In early 2012, he became involved in an

investigation of the defendant when a confidential source named James Koker reported to the ISP

that the defendant had asked him to find someone to hire to kill his wife, Linda Young. On March

29, 2012, Koker was surreptitiously fitted with an overhear device and engaged in conversation

with the defendant. The police recorded that conversation, as Blazier listened in. On March 31,

2012, a conversation between the defendant, Koker, and “an undercover agent, Master Sergeant

Beliveau,” took place. The police recorded that conversation, as Blazier listened in.

¶7 James Koker testified that he and the defendant were “drinking buddies” at the American

Legion in Eldorado, Illinois. In the summer of 2011, the defendant asked Koker whether he could

find someone to kill his wife, but Koker considered this request mere “bar talk.” Over time,

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though, the defendant’s requests became “more persistent,” gradually increasing from “once or

twice a month” to “like every time [Koker] saw [the defendant].” One afternoon, the defendant

talked about having his wife killed, and he was “so serious” that Koker, upon returning home,

contacted the police. Subsequently, he met with ISP agents and eventually agreed to wear an

overhear device. On March 29, 2012, he wore the device during a conversation with the defendant,

starting inside the American Legion and continuing inside the defendant’s pickup truck, which

was parked nearby. During that conversation, the defendant agreed to meet the supposed “hit

man,” who was actually an undercover ISP agent, that next Saturday, March 31, 2012, outside the

American Legion.

¶8 Koker further testified that on March 31, in a van parked near the American Legion, he

introduced the defendant to the undercover agent, “J.B.” Koker did not wear the overhear device

that day. The defendant and the agent spoke for a while. Then, they drove to the hospital where

the defendant’s wife worked, and they drove the route that she took to get back to the house that

she shared with the defendant. At the house, the defendant showed the agent two ATVs, a tractor,

and a case full of guns that would serve as “collateral” until the life insurance money was paid out.

They returned to the American Legion. On cross-examination by defense counsel, Koker denied

that he ever had raised the subject of killing the defendant’s wife. “[The defendant] always brought

the subject up to me,” Koker testified.

¶9 In a 2006 case, Koker was convicted of aggravated driving under the influence of alcohol

(DUI) and was sentenced to prison. In a 2010 case, he was convicted of driving while license

revoked and was sentenced to probation. In July 2012, after the above-described events, he was

arrested for aggravated DUI, again was convicted, and again was sentenced to prison. He also had

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convictions for battery and possession of stolen property. The ISP paid Koker $100 after the first

recorded conversation and $200 after the meeting between the defendant and the undercover agent.

¶ 10 An audio recording of the relevant portions of the March 29, 2012, conversation between

the defendant and Koker was played for the jury. The conversation began with the two of them

exchanging greetings and the defendant’s asking Koker, “When are we gonna take care of this

shit?” Koker suggested that they converse in the defendant’s truck. Apparently, the two walked

out to the truck.

¶ 11 On the audio recording, Koker then asked the defendant, “You’re a hundred percent sure

you want this took care of, right?” The defendant answered, “I want this shit taken care of

[unintelligible] bitch takes me for everything I got.” Koker told the defendant that he knew a man

who was “willing to do it,” but the man wanted to meet with the defendant personally. The

defendant seemed surprised that the man wanted to meet him. He said to Koker, “I just want it

taken care of, you know that.” Koker explained that the man wanted to make sure that he would

not “back out” at the last minute. “I don’t back out,” the defendant replied. “How long have I

been after your ass?” The defendant reminded Koker that he needed to wait for the insurance

money, as he had told Koker “time after time.” A bit later, the defendant told Koker that he wanted

her “out of [his] mother fuckin’ way,” and that he had been telling Koker the same “for over a

fuckin’ year.” The defendant and Koker agreed to meet with the man on Saturday morning, at the

American Legion. The defendant said that he would show the man the route that his wife regularly

drove from work to their house, and that he would show the man his house and personal property

so that the man could feel confident that he would be paid. “You know I want it taken care of,”

the defendant said, “or I wouldn’t keep buggin’ you about it.” He added that he also wanted the

car destroyed, so that he could collect the insurance money on it. Koker said that he would arrange

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the meeting for Saturday. The defendant insisted on no telephone contact between himself and

Koker. “I’ve got your number, you’ve got my number, but let’s keep that shit quiet,” the defendant

cautioned. At the end of this conversation, the defendant stated, “I want this shit done. I’m gettin’

tired of fuckin’ waitin.’ ”

¶ 12 Joe Beliveau testified that he was an ISP agent based in the Metro-East area. He became

involved in the investigation of the defendant when David Blazier was searching for an agent to

handle the investigation’s undercover portion. Beliveau was needed “to play *** the undercover

hitman.” On March 31, 2012, Beliveau arrived in Saline County, where he conferred with Blazier

and other officers, and he met James Koker. Equipment for the transmission and recording of

audio and video was placed inside a van, and in a coffee cup in the van. Then, Beliveau got into

the driver’s seat of the van, Koker got into the front passenger seat, and together they headed to a

scheduled meeting with the defendant at the American Legion in Eldorado. Upon arrival, Koker

got out of the van, while Beliveau remained in the driver’s seat. Koker walked inside the American

Legion hall and walked out with the defendant. Getting into the van, Koker again sat in the front

passenger seat, and the defendant sat behind Koker and Beliveau.

¶ 13 The conversation between the defendant, Beliveau, and Koker was recorded, and a DVD

of the conversation was played for the jury. The video began with Koker and the defendant getting

into the van, joining Beliveau, who was in the driver’s seat. Koker introduced the defendant and

Beliveau, referring to the defendant by his first name only, and referring to Beliveau only as “J.B.”

“My boy here says you got some work,” Beliveau said to the defendant, referring to Koker. “This

is the real deal,” Beliveau said, adding that he needed to make sure that “this is what you want.”

The defendant replied, “This thing’s gotta be done on like a Monday or Tuesday night.” Beliveau

stated, “Once I get this done, it’s done. You realize that, right?” The defendant answered, “Yeah.”

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(Throughout the conversation with Beliveau, the defendant referred to the intended victim only as

“she,” never as his wife.)

¶ 14 The DVD shows that Beliveau then drove from the American Legion to the particular

hospital where the defendant’s wife worked, at the defendant’s suggestion. The defendant wanted

to show Beliveau the car that she drove, a 2012 Ford Explorer, and the route that she took from

work to the house that she shared with the defendant. Beliveau asked, “You got an idea of how

you want this done?” The defendant answered, “I don’t care how it’s done,” but he stated that he

wanted the Explorer “gone too,” so that he can “take the insurance on the car.” Beliveau stated

that his preference was to “put a bullet in her head,” and the defendant commented, “Make it look

like a robbery.” Upon arrival at the hospital where his wife worked, the defendant pointed out the

Explorer and read aloud its license-plate number. Beliveau brought up the matter of payment and

said that he needed some money that day, for “tools” such as “a new banger” and gasoline. At the

defendant’s suggestion, Beliveau drove from the hospital toward the house that the defendant

shared with his wife. The defendant stated that he would pay Beliveau $5000 from insurance

proceeds. The defendant and Beliveau discussed the route in detail and considered different places

along the route where the killing could occur. It became clear that the defendant wanted the killing

to occur on a Monday or Tuesday as his wife drove home from work, at approximately 12:30 a.m.

to 1 a.m.

¶ 15 The DVD shows that the defendant’s house was far out in the country. The defendant

showed Beliveau and Koker around. This portion of the undercover investigation was captured

on video by a camera concealed in the coffee cup that Beliveau carried. The defendant’s tour

included a look at the defendant’s gun collection. After a few minutes, the three men got back into

Beliveau’s car and headed back to the American Legion. Beliveau said that he felt confident of

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payment, having seen the defendant’s house. Once back at the American Legion, Beliveau

requested, and the defendant gave him, $100 in advance. Beliveau assured the defendant that “it’s

gonna happen” on Monday night or Tuesday night. The defendant got out of the van and said to

Koker, “I don’t call you, you don’t call me.” That was the end of the undercover portion of the

investigation.

¶ 16 For the defendant’s case in chief, David Blazier was called as an adverse witness.

According to Blazier, Koker told him that during his walk with the defendant from the American

Legion hall to the undercover van, the defendant stated, “I told you I didn’t want to meet this guy.”

¶ 17 Colt Young, the 41-year-old son of the defendant, testified that in 2011 and 2012, the

defendant dropped by his house two or three times per week. For years, Colt had been estranged

from his mother, Linda Young. The defendant never had expressed anger toward Linda.

¶ 18 The defendant testified on his own behalf. According to the defendant, he had had known

James Koker for four or five years. The two would bump into each other, and drink beer together,

a few times per week at the American Legion hall, but that was the extent of their relationship. He

did not recall complaining much to Koker about his wife, Linda, though he and Linda had argued

frequently during 2011 and 2012. They had been married for 40 years. The defendant did not

recall ever raising the issue of hiring someone to kill Linda, but Koker mentioned it once or twice

per month in the months prior to March 2012. The defendant frequently drank to the point of

intoxication, and he took several painkillers per day, due to a work injury. He thought that he was

under the influence during each of the two recorded conversations that were played at trial. He

could not remember participating in either conversation. He remembered meeting the driver of

the van, but he could not remember the man’s name, and he did not remember giving the man

$100. When Koker arrived at the American Legion hall on March 31, 2012, the defendant was

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not aware that he was going to meet a man who would kill Linda for money. He had never hurt

Linda, and he did not want anyone to hurt her.

¶ 19 The jury found the defendant guilty as charged.

¶ 20 After a hearing in aggravation and mitigation, the circuit court sentenced the defendant to

imprisonment for 32 years and mandatory supervised release for 3 years. The defendant filed a

motion to reconsider sentence. It was denied. The defendant appealed from the judgment of

conviction.

¶ 21 On direct appeal, the defendant presented two arguments. In an order entered on September

20, 2017, this court rejected the defendant’s argument that his sentence represented an abuse of

discretion. However, this court agreed with his argument that he was entitled to a credit of $5 per

day of presentence incarceration against any assessed fines. With that one modification, the

judgment of conviction was affirmed. People v. Young, 2017 IL App (5th) 140551-U.

¶ 22 The Postconviction Proceeding

¶ 23 On August 13, 2018, the clerk of the circuit court file-stamped the defendant’s pro se

petition for postconviction relief. In his postconviction petition, the defendant claimed that

(1) he was “actually innocent” of solicitation of murder for hire;

(2) he was convicted “as a result of the State’s inducement *** to commit a crime

he was not pre-disposed to commit,” in violation of due process, and the fifth and

fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV);

and

(3) trial counsel was constitutionally ineffective (i) for failing to raise the issue of

whether the defendant “was incompetent to stand trial,” (ii) for failing to conduct a

reasonable pretrial investigation into whether the defendant was under the influence of

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 alcohol and controlled substance when he made incriminating statements to a police

officer, and (iii) for failing to raise the issue of entrapment.

The postconviction petition was accompanied by a sworn “affidavit,” which read: “I, Roger D.

Young, state on oath as follows: 1. I am the defendant-petitioner in the above-captioned cause.”

Aside from that one sentence, the affidavit was blank.

¶ 24 In a docket-entry order dated November 2, 2018, the court noted that the petition was not

verified by affidavit, as required by the Post-Conviction Hearing Act. See 725 ILCS 5/122-1(b)

(West 2018). The court found that the petition did not have attached thereto affidavits, records, or

other evidence supporting the petition’s allegations, or state why they were not attached, also as

required. See id. § 122-2. It was on that basis that the court summarily dismissed the defendant’s

petition.

¶ 25 ANALYSIS

¶ 26 The defendant appeals from the circuit court’s summary dismissal of his pro se

postconviction petition. Appellate review is de novo. People v. Boykins, 2017 IL 121365, ¶ 9.

Therefore, this court may affirm the summary dismissal on any proper ground. People v. Lee, 344

Ill. App. 3d 851, 853 (2003).

¶ 27 As previously mentioned, the defendant’s court-appointed attorney on appeal, OSAD, has

concluded that this appeal lacks merit and has filed a Finley motion to withdraw as counsel. This

court agrees that the appeal lacks merit.

¶ 28 The Post-Conviction Hearing Act (Act) provides a method by which a defendant may assert

that his conviction resulted from a substantial violation of his federal or state constitutional rights.

725 ILCS 5/122-1(a)(1) (West 2016); People v. Smith, 2015 IL 116572, ¶ 9. In his petition under

the Act, the defendant must “set forth the specific manner in which his rights were violated.”

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People v. Porter, 122 Ill. 2d 64, 74 (1988). “The petition shall have attached thereto affidavits,

records, or other evidence supporting its allegations or shall state why the same are not attached.”

725 ILCS 5/122-2 (West 2016).

¶ 29 In the first stage of proceedings, the Act requires the circuit court to independently examine

a defendant’s postconviction petition and enter an order thereon. Id. § 122-2.1(a); People v.

Edwards, 197 Ill. 2d 239, 244 (2001). The circuit court needs to determine whether it should

summarily dismiss the defendant’s petition as frivolous or patently without merit (725 ILCS 5/122-

2.1(a)(2) (West 2016)) or should order the petition to be docketed for further consideration (id.

§ 122-2.1(b)). Edwards, 197 Ill. 2d at 244-46. A pro se postconviction petition may be dismissed

as frivolous or patently without merit only if its allegations, taken as true and liberally construed,

fail to state the “ ‘gist of a constitutional claim.’ ” Id. at 244 (quoting People v. Gaultney, 174 Ill.

2d 410, 418 (1996)). In other words, the petition may be dismissed “only if [it] has no arguable

basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). “A petition which lacks

an arguable basis either in law or in fact is one which is based on an indisputably meritless legal

theory or a fanciful factual allegation.” Id. The failure to attach the necessary affidavits, etc., or

to explain their absence, is “ ‘fatal’ ” to a postconviction petition and “ ‘by itself justifies the

petition’s summary dismissal.’ ” People v. Delton, 227 Ill. 2d 247, 255 (2008) (quoting People v.

Collins, 202 Ill. 2d 59, 66 (2002)).

¶ 30 The first allegation in the defendant’s postconviction petition was that the defendant was

“actually innocent” of solicitation of murder for hire. The due process clause of the Illinois

Constitution affords postconviction petitioners the right to assert a freestanding claim of actual

innocence based on newly discovered evidence. People v. Washington, 171 Ill. 2d 475, 489

(1996). To win relief under that theory, the defendant must adduce evidence that is newly

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discovered, material, noncumulative, and of such conclusive character that it would probably

change the result on retrial. People v. Barrow, 195 Ill. 2d 506, 540-41 (2001). Here, the defendant

did little more than make a bald assertion that he was actually innocent. He did not adduce any

evidence that was newly discovered, etc., to support his assertion. His only “substantive” affidavit

was his own, and aside from the sentence identifying himself as “the defendant-petitioner in the

above-captioned cause,” that affidavit was left blank. The defendant failed to set forth an arguable

claim of actual innocence requiring further proceedings under the Act.

¶ 31 The second allegation in the defendant’s postconviction petition was that he was convicted

“as a result of the State’s inducement *** to commit a crime he was not pre-disposed to commit,”

in violation of due process, and the fifth and fourteenth amendments to the United States

Constitution (U.S. Const., amends. V, XIV). This claim is based on section 7-12 of the Criminal

Code of 2012—the entrapment statute—which states that a person is not guilty of an offense if his

conduct is “incited or induced by” a police officer for the purpose of obtaining inculpatory

evidence on that person. 720 ILCS 5/7-12 (West 2016). However, section 7-12 is “inapplicable

if the person was pre-disposed to commit the offense” and the police officer “merely affords to

that person the opportunity or facility for committing an offense.” Id.

¶ 32 A few comments can be made about the defendant’s use of the entrapment defense on

appeal. First, the defendant did not invoke the affirmative defense of entrapment at trial, and

therefore he cannot rely on that defense now. People v. Morgan, 98 Ill. App. 2d 435, 439 (1968)

(“Where the defense of entrapment is not urged in the trial court, as is the situation in the instant

case, it is not available on appeal.”). Second, the longstanding rule in Illinois is that a defendant

cannot assert the entrapment defense unless he first acknowledges that all the elements of the crime

are present, i.e., he must admit a crime before pursuing an entrapment defense. People v. Gillespie,

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136 Ill. 2d 496, 501 (1990). Here, the defendant at trial did not admit to the crime of solicitation

of murder for hire (and he now claims to be actually innocent of that offense). The entrapment

defense was simply unavailable to the defendant. Third, there is (essentially) no chance that the

entrapment defense would have changed the trial’s result, for there was abundant evidence that the

defendant was predisposed to commit solicitation of murder for hire, and that the undercover police

officer merely afforded him the opportunity or facility to arrange to have his wife killed for money.

For example, the defendant told Koker, during the audio-recorded conversation between the two

of them, that he wanted his wife “out of [his] mother fuckin’ way” and that he had been telling

Koker the same “for over a fuckin’ year.” During the audio-and-video-recorded conversation with

the undercover officer in the van, the defendant made clear that he wanted his wife dead. He

specified a time frame for the murder, detailed her expected whereabouts during that time frame,

offered comments on the various places where the killing could occur, discussed payment, and

gave the undercover officer a $100 down payment. Given the content of the recorded

conversations, it is extremely improbable that an entrapment defense would have succeeded in this

case.

¶ 33 The defendant’s third, and last, postconviction allegation was that trial counsel was

constitutionally ineffective for three alleged failings: (i) not raising the issue of whether the

defendant “was incompetent to stand trial,” (ii) not conducting a reasonable pretrial investigation

into whether the defendant was under the influence of alcohol and controlled substance when he

made incriminating statements to a police officer, and (iii) not raising the issue of entrapment.

¶ 34 A defendant is deprived of his constitutional right to the effective assistance of counsel

when (1) counsel provides assistance that is objectively unreasonable and (2) there is a reasonable

probability that, but for counsel’s error, the outcome of the proceedings would have been different.

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Strickland v. Washington, 466 U.S. 668, 687-88 (1984). At the first stage of postconviction

proceedings, a petition must raise an arguable claim as to each of the two prongs of ineffective

assistance. Hodges, 234 Ill. 2d at 17. Failure to make the required showing as to either prong

defeats the claim of ineffectiveness. People v. Morgan, 187 Ill. 2d 500, 529-30 (1999).

¶ 35 The defendant asserted that trial counsel was ineffective for not raising the issue of whether

he was “incompetent to stand trial.” This court presumes that the defendant intended to say that

counsel was ineffective for failing to raise the issue of fitness to stand trial. The right to be fit for

trial is fundamental. People v. Sandham, 174 Ill. 2d 379, 382 (1996). Due process bars the

prosecution of the unfit. People v. Brown, 236 Ill. 2d 175, 186 (2010). A defendant is presumed

fit unless, due to a mental or physical condition, he is unable to understand the nature and purpose

of the proceedings against him or to assist in his defense. Id. Here, the defendant certainly did

name an issue that is appropriate for postconviction proceedings, but he failed to accompany his

postconviction petition with any affidavits, records, or other evidence supporting his allegation of

unfitness, or to explain their absence. See 725 ILCS 5/122-2 (West 2016). Because of that failure,

this claim was patently without merit.

¶ 36 The defendant asserts that trial counsel was ineffective for not conducting a reasonable

pretrial investigation into whether the defendant was under the influence of alcohol and controlled

substance when he made incriminating statements to a police officer. This court presumes that the

defendant is referring to the incriminating statements that he made to undercover police officer Joe

Beliveau, the statements that were recorded and played for the jury. At trial, the defendant sought

to rely on intoxication as an explanation for his statements to Beliveau. He testified that he

believed that he was under the influence of alcohol and pain medicine at the time of his statements.

Due to his regularly consuming alcohol to the point of intoxication and his taking several pain pills

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per day, the defendant could not remember making those incriminating statements. So, trial

counsel surely was aware of this explanation for the defendant’s incriminating statements to

Beliveau. Moreover, the defendant did not accompany his postconviction petition with any

affidavit, etc., specifying the type of evidence that “a reasonable pretrial investigation” would have

revealed, or explain the absence of such documents. Therefore, this claim is patently without

merit. As an aside, this court notes that it is difficult to imagine additional evidence on this point

that would have mattered at the defendant’s trial. At the time of his statements to Beliveau, the

defendant appeared sober and rational, and not at all under the influence of alcohol or drugs, as

the DVD recording makes clear.

¶ 37 The defendant also asserts that trial counsel was ineffective for not raising the issue of

entrapment. This claim is frivolous, for the reasons stated in this court’s discussion of the second

allegation in the defendant’s postconviction petition. An entrapment defense would have had

(essentially) no chance of success. There was abundant evidence that the defendant was

predisposed to commit solicitation of murder for hire, and that the undercover police officer merely

afforded him the opportunity or facility to arrange to have his wife killed for money. Accordingly,

the defendant cannot show that he was harmed by trial counsel’s not raising the issue of

entrapment.

¶ 38 CONCLUSION

¶ 39 The defendant failed to state the gist of a constitutional claim. Any argument to the

contrary would lack substantial merit. Accordingly, OSAD is granted leave to withdraw as

counsel, and the judgment of the circuit court, summarily dismissing the defendant’s

postconviction petition, is affirmed.

¶ 40 Motion granted; judgment affirmed.

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