People v. Austin

NOTICE
2022 IL App (4th) 200630-U FILED
This Order was filed under
Supreme Court Rule 23 and is September 13, 2022
NO. 4-20-0630 Carla Bender
not precedent except in the
limited circumstances allowed
4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee ) Circuit Court of
v. ) McLean County
ALLAN P. AUSTIN, ) No. 98CF482
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Knecht and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court’s judgment, which (1) dismissed
defendant’s successive postconviction petition and (2) resentenced defendant to
an aggregate sentence of 64 years in prison.

¶2 In December 1998, a jury convicted defendant, Allan P. Austin, of three counts of

aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West Supp. 1997)), two counts of

home invasion (720 ILCS 5/12-11(a)(2) (West 1996)), and six other felony offenses. Defendant’s

convictions stemmed from his separate attacks on three women near the Illinois Wesleyan

University campus in March 1998, when defendant was 16 years old. Defendant was tried and

convicted as an adult in criminal court. The trial court sentenced defendant to 20 years in prison

for each count of aggravated criminal sexual assault and 20 years for home invasion, with the

sentences to run consecutively. The court sentenced defendant to terms of less than 20 years on

each of the remaining counts and ordered those to be served concurrently.
¶3 For the next several years, defendant unsuccessfully attacked his conviction and

sentence through various collateral proceedings.

¶4 In February 2014, defendant pro se filed a petition for mandamus relief, arguing,

in relevant part, that his convictions were void because he was unlawfully transferred from

juvenile court pursuant to section 5-4 of the Juvenile Court Act of 1987 (Juvenile Court Act)

(705 ILCS 405/5-4 (West 1996)), which the Illinois Supreme Court had held was void ab initio.

See People v. Brown, 225 Ill. 2d 188, 866 N.E.2d 1163 (2007). The trial court dismissed

defendant’s petition, and this court affirmed the dismissal, but remanded the case to consider

defendant’s claim as a successive postconviction petition. Austin v. Everhart, 2015 IL App (4th)

140968-U, ¶ 4.

¶5 On remand, defendant, through counsel, filed an amended petition arguing

(1) defendant’s transfer from juvenile court was void, (2) defendant was entitled to a new trial

because the State committed a Brady violation (see Brady v. Maryland, 373 U.S. 83 (1963)), and

(3) defendant was entitled to a new sentencing hearing pursuant to People v. Buffer, 2019 IL

122327, 137 N.E.3d 763. The trial court dismissed defendant’s first two claims and granted the

third claim, resentencing defendant to an aggregate term of 64 years in prison, to be served at

50%.

¶6 Defendant appeals, arguing that the trial court erred by (1) finding his transfer to

criminal court was not void, (2) dismissing defendant’s Brady claim, and (3) imposing an

excessive sentence in violation of Buffer. Defendant further contends that (1) postconviction

counsel provided unreasonable assistance on remand by failing to raise several arguments

regarding sentencing, including a one-act, one-crime violation, and (2) his original sentencing

counsel provided ineffective assistance. We disagree and affirm.

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¶7 I. BACKGROUND

¶8 A. The Charges

¶9 In May 1998, the State charged defendant by information with three counts of

aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West Supp. 1997)), two counts of

home invasion (720 ILCS 5/12-11(a)(2) (West 1996)), and one count of residential burglary (id.

§ 19-3). A grand jury subsequently indicted defendant on those same charges as well as several

others, including one count of vehicular invasion (id. § 12-11.1)), one count of unlawful restraint

(id. § 10-3), and two counts of criminal sexual abuse (id. § 12-15(a)(1)).

¶ 10 In December 1998, the trial court conducted defendant’s jury trial at which he was

convicted of all charges.

¶ 11 In November 2000, this court affirmed defendant’s conviction on direct appeal,

rejecting his claims that his trial counsel was ineffective for failing to (1) file a motion to sever

the charges because they “were not part of the same comprehensive transaction” and

(2) cross-examine a detective about the misspelling of defendant’s name on the tag of the t-shirt

recovered from A.B.’s bed. People v. Austin, 316 Ill. App. 3d 1307, 779 N.E.2d 529 (2000)

(table) (unpublished order under Supreme Court Rule 23). (A.B. was the victim of the three

aggravated criminal sexual assault counts and home invasion count.)

¶ 12 B. Subsequent Proceedings

¶ 13 Defendant subsequently filed many collateral attacks “challeng[ing] his

convictions and sentence from every conceivable angle.” People v. Austin, 2014 IL App (4th)

140408, ¶ 9, 23 N.E.3d 615 (Austin II). We have thoroughly described those attacks and claims

in Austin II (see id. ¶¶ 8-14) and do not repeat them here. We note that in February 2015, we

directed the clerk of this court to reject any filings from defendant in this court until he paid a

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$500 sanction for his frivolous filings. Defendant paid that sanction in December 2020.

¶ 14 C. The Mandamus Petition

¶ 15 In February 2014, defendant, who was barred from filing claims in the circuit

court without leave of court, filed a petition for mandamus relief against Don R. Everhart Jr., the

circuit clerk of McLean County, in which he argued his convictions were void but the circuit

court’s refusal to accept his filings prevented him from challenging those convictions. Everhart

moved to dismiss the petition, and the trial court granted that motion.

¶ 16 On appeal, this court affirmed the dismissal of defendant’s mandamus petition but

remanded the case with instructions for the trial court to (1) recharacterize defendant’s pleading

as a successive postconviction petition and (2) advance that petition to the second stage of

proceedings. Austin v. Everhart, 2015 IL App (4th) 140968-U, ¶ 17 (Austin III). We explained

that the documents attached to defendant’s mandamus petition indicated that his charges were

transferred from juvenile court to criminal court pursuant to section 5-4 of the Juvenile Court Act

(705 ILCS 405/5-4 (West 1996)). Id. ¶ 7. The Illinois Supreme Court had ruled subsection 3.3 of

section 5-4 was void ab initio and determined defendants who were transferred under the void

provision were entitled to new transfer hearings. Id. ¶ 15 (citing Brown, 225 Ill. 2d at 198-99).

Because the limited record before us supported a claim that defendant’s case was originally

transferred to criminal court pursuant to a void statute, we remanded the case.

¶ 17 D. Proceedings on Remand

¶ 18 1. The Amended Successive Petition and Motion To Dismiss

¶ 19 In July 2015, defendant pro se filed a motion for leave to file a successive

postconviction petition. The case was severely delayed due to personal family health issues of

defendant’s counsel. In July 2019, new counsel filed an amended successive postconviction

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petition raising three issues for consideration. Specifically, defendant argued that he was entitled

to (1) a new transfer hearing because his case was transferred to criminal court pursuant to a void

statute, (2) a new trial because the State committed a Brady violation by failing to disclose a

police report that would have impeached the identification of defendant by one of the victims,

and (3) a new sentencing hearing because his 80-year aggregate sentence constituted a de facto

life sentence pursuant to Buffer.

¶ 20 In October 2019, the State filed a motion to dismiss defendant’s amended

successive petition. The State argued defendant was not transferred to criminal court pursuant to

the void transfer provision. Instead, defendant was subject to automatic transfer because the prior

statute required defendants who were (1) over the age of 15 and (2) charged with aggravated

criminal sexual assault to be tried in criminal court. The State further argued that it had not

committed a Brady violation because the police report defendant allegedly never received was

not legally material. That is, the State maintained that although the police report stated one of the

victims could not make an identification at a police lineup, that victim later independently

identified defendant on multiple occasions, including in open court. As a result, the outcome of

defendant’s trial was unaffected by any failure to disclose the police report.

¶ 21 The State conceded that defendant was entitled to a new sentencing hearing

because his 80-year sentence was a de facto life sentence.

¶ 22 2. The Hearing and the Trial Court’s Ruling

¶ 23 In October 2019, the trial court conducted a hearing on the State’s motion to

dismiss defendant’s amended successive petition. The parties presented arguments consistent

with their written filings. The trial court granted the State’s motion to dismiss defendant’s void

transfer claim and his Brady claim. However, the court granted defendant’s amended successive

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petition on the sentencing issue and vacated defendant’s original sentence.

¶ 24 Regarding defendant’s void transfer claim, the trial court ruled that defendant’s

juvenile case was not transferred pursuant to the void statute but instead was transferred pursuant

to the mandatory transfer provision of the Juvenile Court Act that required a minor at least 15

years of age who is charged with aggravated criminal sexual assault “ ‘shall be prosecuted under

the criminal [laws].’ ” See 705 ILCS 405/5-4(6)(a) (West 1996). Because defendant’s case was

not transferred pursuant to the void statute, there was no merit to his claim.

¶ 25 Regarding the Brady claim, the trial court found that the police report (1) was not

provided to defendant in discovery and (2) could have been used to impeach one of the victims at

trial. However, the court concluded the report was not material because it would not have

impacted the outcome of the trial and did not undermine confidence in the verdict. Specifically,

the court noted that S.E., the victim discussed in the police report, identified defendant

subsequently when he rode by her work on a bicycle and at trial. The court also noted that the

physical evidence and defendant’s statements during interrogation further supported the

convictions.

¶ 26 Although the trial court dismissed defendant’s first two claims, the court agreed

with his third claim—namely, that his 80-year sentence violated Buffer—and ordered a new

sentencing hearing.

¶ 27 3. The Resentencing Hearing

¶ 28 In October 2020, the trial court conducted a new sentencing hearing. The court

noted that a new presentence investigation report (PSI) had been filed in November 2019 and an

addendum to that report was filed in June 2020. Neither party objected to the PSI or its

addendum.

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¶ 29 The State submitted (1) a transcript of defendant’s trial testimony, (2) a transcript

of the original sentencing hearing, and (3) “a printout from the Illinois Department of

Corrections inmate profile search for the defendant.” Defendant did not object, and neither party

presented any further evidence.

¶ 30 After hearing the arguments and recommendations of the parties, the trial court

discussed the relevant statutory and non-statutory factors in aggravation and mitigation. The

court then individually addressed each of the statutory factors contained within section 5-4.5-105

of the Unified Code of Corrections that the court must consider when sentencing defendants who

were under the age of 18 at the time of the commission of the offense. 730 ILCS 5/5-4.5-105

(West 2020). Among other things, the court noted that defendant (1) had an extensive criminal

history as a juvenile that included serious felonies, (2) had no intellectual deficiencies or mental

health issues, (3) was not subject to peer pressure before or while the offenses were committed,

and (4) had not expressed remorse for his actions. The court then stated the following:

“The Court finds based upon all of those factors that the defendant’s

conduct from an early age to the present shows irretrievable depravity, permanent

incorrigibility, and irreparable corruption beyond the possibility of rehabilitation.

The defendant’s criminal history while not in jail or detention or DOC

demonstrates escalation in his criminal behavior; escalation which resulted in the

offenses for which he is being resentenced today.

The defendant has shown an unwillingness as well as conscious inability

to comply with authority and directions designed to change and alter his

behaviors.”

¶ 31 The trial court sentenced defendant to 16 years in prison for counts I-IV (three

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counts of aggravated criminal sexual assault and one count of home invasion) to be served

consecutively for an aggregate sentence of 64 years in prison. The court sentenced defendant to

various lesser terms of years for his remaining offenses to be served concurrently with counts

I-IV. Defendant was entitled to day-for-day credit and received credit for 8198 days

(approximately 22½ years) in custody.

¶ 32 This appeal followed.

¶ 33 II. ANALYSIS

¶ 34 Defendant appeals, arguing that the trial court erred by (1) finding his transfer to

criminal court was not void, (2) dismissing his Brady claim, and (3) imposing an excessive

sentence in violation of Buffer. Defendant further contends that (1) postconviction counsel

provided unreasonable assistance on remand by failing to raise several arguments regarding

sentencing, including a one-act, one-crime violation, and (2) his original sentencing counsel

provided ineffective assistance. We disagree and affirm.

¶ 35 A. The Applicable Law and Standard of Review

¶ 36 The Post-Conviction Hearing Act (Act) provides a criminal defendant the means

to redress substantial violations of his constitutional rights that occurred in his original trial or

sentencing. People v. Bailey, 2017 IL 121450, ¶ 17, 102 N.E.3d 114; 725 ILCS 5/122-1 (West

2014). The Act contains a three-stage procedure for relief. People v. Allen, 2015 IL 113135, ¶ 21,

32 N.E.3d 615; 725 ILCS 5/122-2.1 (West 2014). At the second stage, the trial court appoints

counsel who must then investigate the defendant’s claims and make any amendments necessary

for an adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6,

2013). The State may file a motion to dismiss the petition, and the petition advances to a

third-stage evidentiary hearing only if the defendant makes a “substantial showing of a

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constitutional violation.” Buffer, 2019 IL 122327, ¶ 45.

¶ 37 The Illinois Supreme Court has described proceedings at the second stage as

follows:

“The second stage of postconviction review tests the legal sufficiency of the

petition. Unless the petitioner’s allegations are affirmatively refuted by the record,

they are taken as true, and the question is whether those allegations establish or

‘show’ a constitutional violation. In other words, the ‘substantial showing’ of a

constitutional violation that must be made at the second stage [citation] is a

measure of the legal sufficiency of the petition’s well-pled allegations of a

constitutional violation, which if proven at an evidentiary hearing, would entitle

petitioner to relief.” (Emphasis in original.) People v. Domagala, 2013 IL 113688,

¶ 35, 987 N.E.2d 767.

The appellate court reviews a trial court’s dismissal of a petition at the second stage de novo.

People v. Sanders, 2016 IL 118123, ¶ 31, 47 N.E.3d 237.

¶ 38 B. This Case

¶ 39 In this case, the bulk of defendant’s claims were either (1) raised earlier in prior

collateral attacks or (2) could have been raised in an earlier proceeding. Accordingly, they are

barred by res judicata. See Bailey, 2017 IL 121450, ¶ 15 (holding that the Act contemplates the

filing of only one postconviction petition and expressly provides that “ ‘[a]ny claim of

substantial denial of constitutional rights not raised in the original or an amended petition is

waived’ ” (quoting 725 ILCS 5/122-3 (West 2014)).

¶ 40 Nonetheless, defendant’s claims also fail on their merits. Because defendant

complains his claims have never been addressed on the merits, we do so in the hope that he will

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finally understand what we have been saying all along: his claims are frivolous.

¶ 41 1. Defendant’s One-Act, One-Crime Claims

¶ 42 Defendant claims the three aggravated sexual assault convictions and the home

invasion conviction should all merge under the one-act, one-crime doctrine. Defendant is

mistaken.

¶ 43 First, home invasion is clearly a different crime than aggravated criminal sexual

assault because none of the elements of home invasion are within any of the elements of

aggravated criminal sexual assault. See People v. Miller, 238 Ill. 2d 161, 166, 938 N.E.2d 498,

502 (2010) (describing abstract elements approach); People v. Rodriguez, 169 Ill. 2d 305,

188-89, 661 N.E.2d 305, 308 (1996) (holding home invasion and aggravated criminal sexual

assault were based on multiple acts despite sharing a common act). Defendant seems to think that

because the felony he intended to commit when he committed home invasion was aggravated

criminal sexual assault, that makes one a lessor included offense of the other. He is simply

wrong. Moreover, the home invasion was predicated on his intention to cause bodily injury, not

to commit sexual assault. See 720 ILCS 5/12-11(a)(2) (West 1996).

¶ 44 Next, defendant claims his three aggravated criminal sexual assault convictions

were all based on the same act of penetration. Defendant’s argument could be meritorious if it

were factually accurate. However, each count was based on a different act of penetration: two

vaginal penetrations and one oral penetration. Oral and vaginal penetration are clearly separate

acts and support separate convictions. Further, a defendant can be convicted of two offenses

based on the same type of penetration if they constituted separate acts. See People v. Segara, 126

Ill. 2d 70, 77, 533 N.E.2d 802, 805 (1988) (“To permit a defendant to rape an individual several

times over a period of time in the same place with little or no break between each act deprecates

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the heinous and violent nature of each act and the effect each act has upon the victim.”). The

victim testified that defendant penetrated her vaginally, then made her perform oral sex on him,

before subsequently forcing her onto her stomach and penetrating her vaginally again. For the

reasons stated, defendant’s convictions were each based on separate acts.

¶ 45 Defendant further claims the crimes charged in counts I-IV constitute a single act

because they were committed during the same course of conduct. This absurd claim fails for the

reasons we just explained as well as the reasons given in People v. Marzonie, 2018 IL App (4th)

160107, ¶ 40, 115 N.E.3d 270 (rejecting defendant’s claim that he committed a single crime of

“operating a mobile methamphetamine lab”).

¶ 46 We note that defendant also asserts that the types of penetration listed in the

indictments are irrelevant because they are not part of the offense. His undeveloped argument is

simply mistaken about the authority he cites.

¶ 47 We also briefly note that this court earlier rejected a claim by defendant that the

more minor charges against him should have been severed from the serious felonies, which

means any similar argument for severance is meritless. People v. Austin, No. 4-99-0188 (Nov.

16, 2000) (unpublished order under Illinois Supreme Court Rule 23) (Austin IV).

¶ 48 2. Defendant’s Transfer to Criminal Court Was Valid

¶ 49 Defendant claims his juvenile charges should not have been transferred because

section 5-4 of the Juvenile Court Act was void. This claim has been addressed on the merits by

the trial court twice and both times the trial court properly rejected it. Critically, defendant’s

felony claims were not transferred pursuant to the void provision of the Juvenile Court Act.

Defendant was 16 years old and charged with three counts of aggravated criminal sexual assault.

Section 5-4(6)(a) required the automatic transfer of those offenses and any crimes arising out of

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the same operative facts. 705 ILCS 405/5-4(6)(a) (West 1996). Instead, defendant’s case was

automatically transferred to criminal court both under the law in effect at the time and the

version of the Juvenile Court Act in place prior to 1996. Id.; see also People v. Clark, 119 Ill. 2d

1, 13, 518 N.E.2d 138, 143 (1987) (concluding the provisions of the Juvenile Court Act in effect

at the time required automatic transfer if the defendant was at least 15 years old and committed

aggravated criminal sexual assault). Because defendant’s transfer to criminal court was required

under the statute in effect at the time of his transfer, the trial court properly dismissed his void

transfer claim.

¶ 50 3. Defendant’s 64-Year Sentence Was Appropriate

¶ 51 Next, defendant claims his new 64-year sentence was void because it exceeded 40

years in violation of Buffer. Defendant is wrong for several reasons.

¶ 52 First, in People v. Dorsey, 2021 IL 123010, ¶¶ 49-50, 183 N.E.3d 715, the Illinois

Supreme Court made clear that day-for-day sentencing credit is considered when determining if

a sentence is a de facto life sentence in excess of 40 years. Here, defendant was sentenced to an

aggregate of 64 years to be served at 50%. The minimum term of years defendant is required to

serve is 32 years, well short of a de facto life sentence.

¶ 53 Second, as this court explained in People v. Kuehner, 2022 IL App (4th) 200325,

¶ 79, sentences longer than 40 years are permissible if “the sentencing court considers the

offender’s youth and its attendant circumstances.” Here, the trial court individually addressed

each factor and concluded that 64 years was an appropriate sentence. Accordingly, we affirm the

trial court’s sentence.

¶ 54 4. Defendant Did Not Make a Substantial Showing of a Brady Violation

¶ 55 Last, defendant claims the trial court erred by dismissing his Brady claim. The

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trial court found that, assuming defendant never received the police report, the State committed a

Brady violation. However, the court ultimately concluded that the police report was not material

in the legal sense required to entitle defendant to a new trial. We agree.

¶ 56 To establish a Brady violation sufficient to require a third-stage evidentiary

hearing, defendant needed to make a substantial showing that (1) the State failed to turn over

exculpatory or impeaching evidence requested in discovery and (2) that evidence was material to

his guilt or innocence. People v. Snow, 2012 IL App (4th) 110415, ¶ 35, 964 N.E.2d 1139.

Evidence is material “if there is a reasonable probability that, had the evidence been disclosed

***, the result of the proceeding would have been different.” (Internal quotation marks omitted.)

Id. ¶ 36. A reasonable probability exists when the undisclosed evidence undermines confidence

in the outcome of the trial. Id.

¶ 57 The police report concerns S.E.’s inability to definitively identify defendant at a

lineup. (We note that S.E. was one of the three women defendant attacked, but she was not the

victim of the aggravated criminal sexual assaults or home invasion convictions which form the

basis of defendant’s 64-year prison sentence.) However, at trial, S.E. testified that after the

lineup described in the police report, she (1) recognized defendant and called the police when she

saw him riding his bike near the place she was attacked, (2) identified defendant at a show up the

same night he was arrested, and (3) identified defendant as the attacker in open court. In his

interview with police after his arrest, defendant volunteered information about the crimes to the

police and signed a written confession. Given the overwhelming nature of the evidence against

defendant, the police report pertaining to S.E. does not undermine confidence in the jury’s

verdict.

¶ 58 5. Ineffective Assistance of Counsel

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¶ 59 Because we have rejected defendant’s claims on their merits, neither his trial

counsel nor his postconviction counsel could have rendered ineffective assistance for failing to

raise them or raising them inadequately. See, e.g., People v. Price, 2021 IL App (4th) 190043,

¶ 187 (concluding that defendant could not establish prejudice under Strickland when this court

rejected his underlying claims on their merits).

¶ 60 C. Epilogue

¶ 61 Defendant is clearly unhappy about his sentence, but his situation is now better

than it was when he was first convicted in 1998. Defendant is eligible for day-for-day credit

because he was sentenced prior to the enactment of the truth-in-sentencing statute, which would

have required him to serve at least 85% of his sentences for aggravated criminal sexual assault

and home invasion. 730 ILCS 5/3-6-3(a)(2)(i), (ii) (West 2020). Because that statute does not

apply to defendant, in theory, he could be released after serving 32 years, and he has already

served over 20.

¶ 62 Defendant’s continued harassing and frivolous litigation can have very real,

negative consequences for him. Specifically, the trial court can order the Illinois Department of

Corrections to conduct a hearing to revoke up to 180 days of sentencing credit when the court

makes a specific finding that a previous filing was frivolous. Id. § 3-6-3(d). The trial court can

also assess and collect filing fees and court costs from a prisoner’s trust fund account

administered by the Department of Corrections. 735 ILCS 5/22-105(a) (West 2020).

Additionally, as defendant is already aware, the appellate court is authorized to impose sanctions,

including monetary sanctions, on a party who files a frivolous appeal. Ill. S. Ct. R. 375(b) (eff.

Feb. 1, 1994).

¶ 63 We have addressed defendant’s claims on the merits (1) so that he will know they

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cannot succeed and (2) to give the trial court more help in evaluating the frivolity of defendant’s

claims should he reraise them in the future. If that happens, the trial court can and should

consider the elimination of good time.

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated, we affirm the trial court’s judgment.

¶ 66 Affirmed.

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