People v. Sledge

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 200204-U

Order filed April 1, 2022
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0204
v. ) Circuit No. 16-CF-269
)
JEREMY D. SLEDGE, ) Honorable
) Paul P. Gilfillan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE HAUPTMAN delivered the judgment of the court.
Justices Daugherity and Lytton concurred in the judgment.
____________________________________________________________________________

ORDER

¶1 Held: The circuit court’s summary dismissal of defendant’s pro se postconviction
petition at the first stage is affirmed, where defendant’s petition failed to state an
arguable basis in law.

¶2 Following the affirmance of defendant’s convictions on direct appeal, defendant filed a

pro se postconviction petition. The circuit court summarily dismissed defendant’s petition at the

first stage as frivolous and patently without merit. Defendant appeals, arguing his petition

alleged the gist of a constitutional claim.
¶3 I. BACKGROUND

¶4 In August 2016, defendant was tried by a jury and convicted of armed robbery (720 ILCS

5/18-2(a)(2) (West 2016)) and unlawful possession of a weapon by a felon (UPWF) (id. § 24-

1.1(a)). Defendant was sentenced to a 25-year term of imprisonment. This court affirmed

defendant’s convictions on direct appeal in People v. Sledge, 2019 IL App (3d) 170052-U.

¶5 A. Trial Testimony

¶6 At trial, George Moss testified that he was in a relationship with Arricka Triplett and was

at Triplett’s apartment on the morning of the incident. That morning, Moss heard a knock on the

front door and looked outside. Moss recognized the man knocking on the door, so he opened the

door, but a different man ran into the apartment. This man wore a black hooded sweatshirt with

something like “rest in peace” written on the front of it. The man was not wearing a hood or a

mask, allowing Moss to clearly view his face. The man asked for money while holding a black

gun, and then hit Moss over the head with the gun several times. Moss told the assailant that he

did not have any money. At that point, Triplett entered the room, the man pointed the gun at

Triplett, and again demanded money. Triplett also replied that she did not have any money.

¶7 Moss testified that the man grabbed $10 to $15 that was laying on a table and exited the

apartment. Approximately 15 minutes later, Triplett called the police, who arrived at the scene

and drove Moss and Triplett to a nearby apartment complex on Lavelle Court. Thereafter, the

police brought two men out of an apartment. Moss identified the second man, defendant, as the

assailant. Moss also identified defendant in court as the robber.

¶8 Triplett testified that she heard a knock on the door that morning but initially stayed in

bed. Triplett heard Moss saying, “I don’t have any money. I don’t have any money.” Triplett got

out of bed and walked into the kitchen, where she saw the assailant hitting Moss on the head

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 with a black gun. The man pointed the gun at Triplett, and Triplett told the man she did not have

any money. The man was wearing a black hoodie that said something like “rest in piece [sic] on

it.” Triplett had a clear view of the man’s face. The man was not wearing a mask, but his hood

was up. After the man ran from the apartment, Triplett looked out the window and watched the

man get into the back seat of a white car with a black hood. Triplett did not see the driver. The

car drove away, and Triplett called the police to report the crime. Triplett informed the police

that she saw the assailant enter a white car with a black hood.

¶9 The police subsequently drove Triplett and Moss to an apartment complex on Lavelle

Court, where Triplett identified the white car with a black hood. Triplett was in the back seat of a

squad car in the parking lot of the apartment complex when the police brought out two men,

separately, from an apartment. First, the police brought out Jamarco Moore, whom Triplett

recognized as a family member. Triplett knew that Moore had driven the white car with a black

hood in the past. The police then brought defendant out of the apartment. Triplett identified

defendant as the robber because she remembered his face. Triplett further averred that she had

known defendant since childhood. However, Triplett did not immediately recognize defendant at

the scene of the crime because defendant had cut his dreadlocks. Triplett also identified

defendant in court as the robber.

¶ 10 City of Peoria police officer, Marilyn Robinson, testified that she was dispatched to

Triplett’s apartment at approximately 9:52 a.m. on April 9, 2016. Upon arrival, Robinson noted

injuries to Moss’s head. Moss and Triplett described the assailant as a black male wearing a

black hooded sweatshirt with writing on it. They also described the car involved in the incident

as a white car with a black hood. Robinson related this description of the car over her police

radio and was subsequently informed that a vehicle fitting that description was located at an

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 apartment complex on Lavelle Court. Triplett and Moss were transported to the apartment

complex, where Triplett identified the car.

¶ 11 At some point, Moss and Triplett were placed into separate squad cars. While sitting in

separate squad cars, two men passed by the police officers, walked up some stairs, and entered

an apartment. Triplett indicated to the officers that one of the men was Moore and that she knew

him. The officers then went into the apartment that Moore and the other man had entered. Next,

an officer brought Moore out of the apartment. Another officer brought defendant out of the

apartment. Triplett identified defendant as the assailant. Based on the testimony of the various

officers involved in this case, it appears this identification took place between 10:30 a.m. and

11:00 a.m.

¶ 12 City of Peoria police officer, Jarvis Harrison, testified that he received a dispatch

regarding a suspect who had entered a white vehicle with a black hood. Harrison located the

vehicle outside an apartment on Lavelle Court around 10:05 a.m. and began running the license

plates. Harrison notified Officer Robinson, who brought the victims to the apartment complex to

identify the vehicle. While parked in a squad car in front of the apartment building, two black

males walked past and entered the apartment. Triplett identified one of the males as a family

member who drove the car in question. Officers then entered the apartment, after a resident

consented to the search. Officers entered the apartment approximately 30 minutes after Harrison

initially arrived at the scene. There were three black males and one child in the apartment. When

defendant emerged from the bathroom, he was not wearing a black hoodie. Defendant “was

taken into custody and handcuffed.” Defendant was then released to other officers, who took

defendant outside. Following a search of the apartment, Harrison located what appeared to be a

handgun that was wrapped in a T-shirt in the back bedroom.

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¶ 13 City of Peoria detective, Stevie Hughes, Jr., testified that he arrived at the Lavelle Court

apartment at 10:35 a.m. Hughes entered the apartment after obtaining consent to search from

Jamere Hayes, a resident. Hayes, Moore, defendant, and a child were inside the apartment.

Defendant was in the bathroom when Hughes initially entered. Hughes determined that the

apartment was not defendants. After looking around, Hughes located a black hoodie in the rear

bedroom, the same bedroom where the suspected handguns were located.

¶ 14 City of Peoria police officer, Scott Bowers, identified several photographs he had taken at

the Lavelle Court apartment, including photographs of a black hooded sweatshirt that said

“R.I.P.,” and two black handguns that were wrapped in a T-shirt. No DNA samples suitable for

comparison were discovered on the handguns.

¶ 15 B. Postconviction Proceedings

¶ 16 On February 12, 2020, defendant filed a pro se petition for postconviction relief pursuant

to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2020)), requesting

that the circuit court vacate his convictions and grant him a new trial. In his petition, defendant

argued he was arrested, absent probable cause, prior to the show up identification, wherein

defendant was identified as the robber.

¶ 17 In support of his claims, defendant cited portions of the trial transcript, which were

attached to his petition. Defendant also attached this court’s order in Sledge, 2019 IL App (3d)

170052-U and a memorandum of law to his petition. In the petition, defendant accurately

detailed the trial testimony of Officers Hughes and Harrison. Defendant alleged that several

officers entered the apartment after obtaining consent to search. During this time, defendant

emerged from the bathroom and was not wearing a black hooded sweatshirt. However, defendant

alleged that at this time he was taken into custody, informed that he was under arrest, and

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 handcuffed. Additionally, defendant alleged in his memorandum of law that when he emerged

from the bathroom, Officer Harrison approached defendant with his hand on his weapon and

ordered defendant to turn around and place his hands behind his back.

¶ 18 Based on these facts, defendant argued that had a motion to suppress predicated on the

theory of an unlawful arrest been filed, it would have been meritorious. Defendant argued the

show up identification of defendant and the discovery of two handguns should have been

suppressed, casting doubt on the outcome of his trial. Accordingly, defendant asserted that trial

counsel was ineffective for failing to file a motion to quash arrest and suppress this evidence

prior to trial. Defendant further argued that appellate counsel was ineffective for failing to raise

trial counsel’s ineffectiveness on direct appeal.

¶ 19 On April 23, 2020, the circuit court dismissed defendant’s petition, finding that it was

frivolous and patently without merit. On June 22, 2020, defendant filed a late notice of appeal,

which was allowed by this court.

¶ 20 II. ANALYSIS

¶ 21 On appeal, the parties dispute whether the court should have summarily dismissed

defendant’s petition, which alleged ineffective assistance of counsel for failure to file a motion to

suppress. Our review of the circuit court’s summary dismissal of defendant’s petition at the first

stage is de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009).

¶ 22 Before reaching the merits of defendant’s appeal, we note that the parties both address

the fact that defendant failed to raise the instant ineffective assistance of trial counsel claim on

direct appeal. Indeed, defendants generally waive review of issues not raised on direct appeal.

See People v. Guest, 166 Ill. 2d 381, 390 (1995); People v. Pitsonbarger, 205 Ill. 2d 444, 456

(2002). However, the caselaw instructs that the waiver rule may be relaxed, where the alleged

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 waiver stems from the incompetence of appellate counsel or where the facts related to the claim

did not appear in the original appellate record. Guest, 166 Ill. 2d at 390. To be sure, defendant’s

petition is based on the evidence adduced at trial, not newly discovered evidence. However,

defendant argues that to the extent the record in his direct appeal contained sufficient facts upon

which the instant ineffective assistance claim could have been raised, appellate counsel was

ineffective for failing to raise trial counsel’s ineffectiveness at that time. We agree and find that

defendant’s petition adequately alleges the ineffective assistance of appellate counsel on direct

appeal, such that waiver of the instant claim is excused.

¶ 23 Turning to the postconviction proceeding, the Act offers criminal defendants a

mechanism to mount a collateral attack on a final judgment by asserting that 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 the State of Illinois or both. People v. Clinton, 2016 IL

App (3d) 130737, ¶ 21; People v. Robinson, 2020 IL 123849, ¶ 42. The Act sets forth a three-

stage process for reviewing postconviction claims. People v. Boclair, 202 Ill. 2d 89, 99 (2002);

Clinton, 2016 IL App (3d) 130737, ¶ 21. At the first stage, “all well-pleaded facts that are not

positively rebutted by the original trial record are to be taken as true.” People v. Coleman, 183

Ill. 2d 366, 385 (1998). To advance past the first stage, a pro se defendant must allege the gist of

a constitutional claim. Hodges, 234 Ill. 2d at 9-12. This gist standard is a low threshold to meet.

People v. Edwards, 197 Ill. 2d 239, 244 (2001). To establish the gist of a constitutional claim, a

postconviction petition need only set forth a limited amount of detail and need not set forth the

claim in its entirety or even include legal arguments or citation to authority. Id. Our supreme

court has also equated the gist of a constitutional claim to a claim that is “not frivolous or

patently without merit.” (Emphasis in original.) Hodges, 234 Ill. 2d at 11. A postconviction

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 petition may be summarily dismissed as frivolous or patently without merit only if the petition

has no arguable basis either in fact or law. Id. at 11-12.

¶ 24 Based on the aforementioned jurisprudence, the question before this court is whether the

ineffective assistance claim in defendant’s petition had an arguable basis in law. Here, defendant

intertwines two separate ineffective assistance claims, arguing appellate counsel was ineffective

for failing to raise trial counsel’s ineffectiveness. Stated differently, appellate counsel’s

ineffectiveness depends wholly on whether trial counsel was, in fact, ineffective. See People v.

Edwards, 195 Ill. 2d 142, 163-64 (2001) (claims of ineffective assistance of appellate counsel

fail where the underlying claim is meritless).

¶ 25 At the first stage of postconviction proceedings, a petition predicated on ineffective

assistance of counsel may not be summarily dismissed if it is arguable that counsel’s

performance fell below an objective standard of reasonableness, and it is arguable that the

defendant suffered prejudice. People v. Tate, 2012 IL 112214, ¶ 19. Counsel’s decision on

whether to file a motion is considered a matter of trial strategy and is accorded great deference.

People v. Bryant, 128 Ill. 2d 448, 458 (1989). In such cases, criminal defendants must overcome

the strong presumption that counsel’s action and/or inaction constituted reasonable trial strategy.

People v. Clendenin, 238 Ill. 2d 302, 317 (2010). Thus, to establish prejudice based on counsel’s

failure to file a suppression motion, defendants must demonstrate that the unargued suppression

motion is arguably meritorious and that a reasonable probability exists that the trial outcome

would have been different had the evidence been suppressed. See People v. Henderson, 2013 IL

114040, ¶ 15; see People v. Hunter, 2013 IL App (3d) 110310, ¶ 10.

¶ 26 In his petition, defendant argued that he was arrested absent probable cause, that certain

evidence was obtained as a result of his unlawful arrest (two handguns and witness’

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 identifications), and that this evidence likely would have been suppressed, if challenged. For

these reasons, defendant argues trial counsel was ineffective for failing to file a motion to quash

arrest and suppress evidence. Additionally, defendant argues appellate counsel was ineffective

on direct appeal, where counsel failed to raise the issue of trial counsel’s ineffectiveness.

Defendant alleges he suffered prejudice as a result of these shortcomings.

¶ 27 The State concedes, on appeal, that the officers lacked probable cause to arrest at the time

defendant exited the bathroom in the Lavelle Court apartment. The State’s concession is

supported by the record. However, the State maintains that police detention is not always

synonymous with an arrest. The State asserts that defendant was briefly detained, not arrested, as

part of a legitimate show up identification procedure. In other words, the State argues the officers

were justified in handcuffing defendant, without probable cause, as part of a brief investigative

detention, otherwise known as a Terry stop. Terry v. Ohio, 392 U.S. 1 (1968).

¶ 28 Our supreme court provides that police citizen encounters can be divided “into three tiers:

(1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or

‘Terry stops,’ which must be supported by a reasonable, articulable suspicion of criminal

activity; and (3) encounters that involve no coercion or detention and thus do not implicate

fourth amendment interests.” People v. Luedemann, 222 Ill. 2d 530, 544 (2006). Under Terry, a

police officer may stop and detain a person without probable cause to investigate possible

criminal activity if the officer can point to specific, articulable facts, which, taken together with

rational inferences, reasonably warrant the intrusion. Terry, 392 U.S. at 21; See People v.

Lippert, 89 Ill. 2d 171, 181-82 (1982) (instructing that detaining an individual for a short time for

purposes of a show up is a legitimate investigatory procedure even if one considers the grounds

to have been less than probable cause to arrest); see People v. Bennett, 376 Ill. App. 3d 554, 565

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 (2007) (instructing that under Terry, officers are permitted to briefly detain an individual to

investigate the possibility of criminal behavior absent probable cause to arrest and that

investigatory detentions are distinguished from arrests based on the length of the detention and

the scope of the investigation following the detention, not the initial restrain of movement).

¶ 29 Here, defendant’s suppression argument is stymied by the fact that the officers arguably

had a reasonable suspicion to briefly detain him for investigatory purposes to determine

defendant’s involvement in the robbery. However, defendant’s argument on appeal may be

dispatched on simpler grounds. Namely, that defendant cannot establish ineffective assistance of

counsel, where no arguable, reasonable probability exists that the trial outcome would have been

different had the contested evidence been suppressed.

¶ 30 Regarding the handguns defendant seeks to suppress, this court previously held in Sledge,

2019 IL App (3d) 170052-U, ¶ 44 that “a new trial without admission of the guns would not

produce a different result.” This court reasoned that even if the handguns were erroneously

admitted into evidence, the error was harmless where the victims’ testimony that defendant

entered Triplett’s apartment, held a black gun, repeatedly struck Moss with the gun, and took

money from a table, coupled with the parties’ stipulation regarding defendant’s prior felony

conviction, was sufficient to prove defendant guilty beyond a reasonable doubt. Id. As such, not

only is defendant’s argument concerning the handguns arguably barred, but no reasonable

probability exists that the trial outcome would have been different without the admission of the

guns. The same holds true for the identification evidence.

¶ 31 In his petition, defendant argues “there is more than a possibility that the show-up

identification procedure the police conducted for the complaintants [sic] by using [defendant] as

a participant would have been suppressed.” But even assuming the court barred the presentation

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 of evidence that defendant was identified by the victims as the assailant outside of the apartment,

both victims independently identified defendant as the assailant in open court. Defendant does

not suggest the victims’ in-court identifications of defendant were tainted by their previous

identifications of defendant outside the Lavelle Court apartment, and nothing in this record

causes this court to view the victims’ in-court identifications as anything other than reliable,

especially where the victims viewed defendant’s face from close range. Thus, a new trial,

without evidence of the initial show up identification, would not produce a different result.

¶ 32 Further, we note that defendant’s proposed motion to quash arrest and suppress evidence

would challenge whether the arresting officer had probable cause or reasonable suspicion to

detain defendant. As previously recognized in this court and others, a motion to quash arrest that

is premised on a lack of probable cause does not appear to be a legitimate motion. People v.

Winchester, 2016 Ill. App (4th) 140781, ¶¶ 22-32; People v. Motzko, 2019 IL App (3d) 180184,

¶ 19; People v. Atchison, 2019 IL App (3d) 180183, ¶¶ 22-27. Even if this court were to find

defendant’s “arrest” invalid, the remedy available to defendant is not dismissal of the charges but

rather suppression of the evidence obtained as a result of the arrest, which we have already

determined would have no impact on the outcome of defendant’s trial. People v. Williams, 2019

IL App (3d) 160132, ¶ 13; Atchison, 2019 IL App (3d) 180183, ¶ 13 (providing that a trial court

is only authorized to dismiss criminal charges prior to trial for the reasons set forth under section

114-1 of the Code of Criminal Procedure of 1963).

¶ 33 In sum, a motion to suppress evidence, had it been filed, and had it succeeded, would not

have changed the outcome of defendant’s trial. Accordingly, trial counsel was not ineffective for

not filing this motion. Likewise, appellate counsel on direct appeal was not ineffective for failing

to raise issues that lacked merit. See Edwards, 195 Ill. 2d at 163-64; see People v. Peeples, 205

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 Ill. 2d 480, 513 (2002); see People v. Easley, 192 Ill. 2d 307, 328-329 (2000). For the above

stated reasons, defendant’s petition failed to state an arguable basis in law, where defendant’s

ineffective assistance arguments were without merit. Thus, we affirm the circuit court’s dismissal

of defendant’s petition at the first stage.

¶ 34 III. CONCLUSION

¶ 35 The judgment of the circuit court of Peoria County is affirmed.

¶ 36 Affirmed.

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