People v. Moore

            NOTICE
                                          2022 IL App (5th) 190374-U
                                                                                           NOTICE
 Decision filed 11/03/22. The
                                                                                This order was filed under
 text of this decision may be      NOS. 5-19-0374, 5-19-0375, 5-19-0376 cons.   Supreme Court Rule 23 and is
 changed or corrected prior to
 the filing of a Petition for                                                   not precedent except in the

 Rehearing or the disposition of
                                                    IN THE                      limited circumstances allowed
 the same.                                                                      under Rule 23(e)(1).
                                      APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,      )     Appeal from the
                                          )     Circuit Court of
      Plaintiff-Appellee,                 )     Marion County.
                                          )
v.                                        )     Nos. 11-CF-332, 14-CF-94, &
                                          )          14-CF-288
JARID D. MOORE,                           )
                                          )     Honorable Mark W. Stedelin,
      Defendant-Appellant.                )     Judge, presiding.
______________________________________________________________________________

          PRESIDING JUSTICE BOIE delivered the judgment of the court.
          Justices Welch and Wharton concurred in the judgment.

                                                  ORDER

¶1        Held: Where the issues raised in defendant’s postconviction petition were without merit
                and postconviction counsel was not unreasonable for failing to include additional
                nonmeritorious issues from defendant’s pro se filings, and any argument to the
                contrary would lack merit, we grant defendant’s appointed counsel on appeal leave
                to withdraw and affirm the judgment of the circuit court.

¶2        Defendant, Jarid D. Moore, appeals the circuit court’s order denying his petition pursuant

to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). Defendant’s

appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded

that this appeal lacks merit. Accordingly, OSAD has filed a motion to withdraw as counsel for the

defendant (see Pennsylvania v. Finley, 481 U.S. 551 (1987)) along with a brief in support of the

motion. OSAD has provided the defendant with a copy of its Finley motion and brief. This court

has provided him with ample opportunity to file a written pro se brief, memorandum, etc.,

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responding to OSAD’s motion or explaining why this appeal has merit. The defendant has not

filed any sort of response. Having read OSAD’s Finley motion and brief, and having examined

the record on appeal, this court concludes that the instant appeal does indeed lack merit. There is

no potential ground for appeal. Accordingly, OSAD is granted leave to withdraw as counsel, and

the judgment of the circuit court is affirmed.

¶3                                      BACKGROUND

¶4     This appeal concerns three separate but related cases. In case No. 11-CF-332, defendant

pleaded guilty to violating an order of protection obtained by his then-girlfriend. In case No. 14-

CF-94, defendant was placed on probation after pleading guilty to two counts of aggravated

domestic battery against his wife, Stacey J.-M. In case No. 14-CF-288, defendant was charged

with two counts of aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2014)) and one

count each of unlawful restraint (id. § 10-3(a)) and domestic battery (id. § 12-3.2(a)(1)) against

Stacey J.-M. The State alleged that the offenses occurred on September 7-8, 2014. After defendant

was charged in No. 14-CF-288, the State petitioned to revoke his probation in the two earlier cases.

¶5     At trial in No. 14-CF-288, Stacey J.-M. testified that she had no recollection of the events

leading to defendant’s arrest and that she had lied in her previous statement to police. The State

was then allowed to introduce that statement, in which she said that she was at home with defendant

on September 7, 2014. He was angry with her because he believed that she had been with another

man. He made her lie naked on the bed and choked her. They began fighting, during which time

he bit her leg and punched her. He held a pillow over her face. Defendant would not allow her to

leave. Eventually, she got up and, under the pretext of going to the bathroom, left the apartment.

She ran to the neighbors to get help.




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¶6     Anthony Scott Deain testified that Stacey J.-M. knocked on his door and asked to see his

mother. She was wrapped only in a bath towel. She had bruises all over and, when asked about

them, said that her boyfriend had held her against her will.

¶7     Dawn Deain testified that Stacey J.-M. said that her husband or boyfriend had beaten her.

He would not let her have her clothes so that she could not leave. She had bruises on her face and

neck. The State also introduced evidence of letters and phone calls between Stacey and defendant

in which they agreed that she would testify that she did not remember the incident.

¶8     The jury found defendant guilty of all charges except one count of aggravated domestic

battery. The court conducted a sentencing hearing which also functioned as a probation revocation

hearing for the two older cases. At the conclusion, the court revoked defendant’s probations and

sentenced him to 10-year terms of imprisonment to run concurrently. On direct appeal, defendant

argued only that he was entitled to additional sentencing credit.

¶9     Defendant filed a postconviction petition and an “amendment” that raised an additional

issue. The trial court advanced the petition to the second stage and appointed counsel, who filed

a second-amended petition. This amended pleading included two issues raised in defendant’s

pro se petition: (1) that during closing argument, the prosecutor shifted the burden of proof to

defendant and (2) that trial counsel was ineffective for failing to impeach Stacey J.-M. The

amended petition further alleged that two jurors failed to disclose their history of domestic violence

allegations. The court heard arguments but no testimony during a third-stage hearing, after which

the court denied the petition. Defendant filed notices of appeal in all three pending cases. On its

own motion, this court consolidated the appeals.




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¶ 10                                        ANALYSIS

¶ 11   OSAD contends that the only possible issues on appeal are whether the trial court properly

denied defendant’s postconviction petition and whether postconviction counsel provided

reasonable assistance. OSAD concludes that neither issue has even arguable merit, and we agree.

¶ 12   First, the trial court properly denied the second-amended petition because none of the

issues raised had substantive merit. The Act provides a remedy to a criminal defendant whose

federal or state constitutional rights were substantially violated at his trial or sentencing. People

v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). A postconviction proceeding allows inquiry only

into constitutional issues that were not, and could not have been, adjudicated on direct

appeal. People v. Pabello, 2019 IL App (2d) 170867, ¶¶ 19-20.

¶ 13   We note that defendant’s direct appeal requested only additional sentencing credit. The

postconviction petition raised ordinary trial errors, which could have been raised on direct appeal

and thus are presumptively forfeited. However, defendant’s initial petition argued, at least

generally, that appellate counsel was ineffective for failing to raise certain issues on direct appeal.

Thus, we discuss the merits of these issues.

¶ 14   The first issue the petition raised is that the prosecutor improperly shifted the burden of

proof to defendant. In closing, the prosecutor argued that photographs of the victim showed

bruises “head to toe.” In response, defense counsel argued that the photographs did not show

bruises on her head or neck. Moreover, “Any or all of these marks could have an innocent

explanation.” In rebuttal, the State argued, “If the bruises and marks had an innocent explanation,

why didn’t we ever hear it?” The trial court sustained a defense objection to this remark and

instructed the jury to ignore statements to which an objection was sustained.




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¶ 15   Generally, the State in closing argument may not attempt to shift the burden of proof to the

defendant. See People v. Euell, 2012 IL App (2d) 101130, ¶ 20 (comment in response to a defense

argument that defendant might have been framed that there was “ ‘no evidence of that from the

defense standpoint’ ” improperly shifted burden to defendant). Nonetheless, comments by the

prosecution that improperly shift the burden of proof will only result in a reversal on appeal where

the improper remarks resulted in substantial prejudice to the defendant’s right to a fair trial. People

v. Edgecombe, 317 Ill. App. 3d 615, 623 (2000). Moreover, a trial judge’s prompt action in

sustaining an objection will be sufficient to cure the error of an improper comment. Id.

¶ 16   Here, the State presented compelling evidence of defendant’s guilt, including Stacey’s

original statement to the police, which was corroborated by two neighbors, and phone calls and

correspondence between Stacey and defendant in which they discussed having her testify that she

did not remember the incident and lied in the initial statement. Against this overwhelming

evidence, the State’s isolated comment did not deprive defendant of a fair trial. Moreover, the trial

court promptly sustained the defense objection, thus curing any arguable prejudice.

¶ 17   The second issue raised in the amended petition is that trial counsel was ineffective for

failing to attack the victim’s credibility. To establish ineffective assistance, a defendant must show

that counsel’s performance fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. People v. Manning, 241 Ill. 2d 319, 326 (2011) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). Moreover, to establish deficient performance, a defendant

must overcome the strong presumption that the challenged action or inaction was the result of

sound trial strategy. Id. at 327. The decision whether to cross-examine or impeach a witness is




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generally one of trial strategy and thus will not support an ineffective-assistance claim. People v.

Pecoraro, 175 Ill. 2d 294, 326 (1997).

¶ 18   Here, the decision not to further attack Stacey’s credibility appears to have been a

reasonable strategic choice. On the witness stand, Stacey claimed not to remember the incident.

She did not remember defendant attacking her and attempted to disavow her prior statement to the

contrary. Thus, the defense wanted the jury to believe Stacey’s trial testimony, and any vigorous

attempt to impeach her might have led the jury to more readily reject her testimony and thus accept

the earlier statement.

¶ 19   The third issue raised in the petition was that two jurors had been respondents in order-of-

protection proceedings and thus had lied during voir dire when asked whether they were charged

with a crime. Where a defendant alleges that a juror was not forthcoming during voir dire, the

general rule is that a motion for a new trial will not be granted unless the defendant can establish

that prejudice resulted. People v. Porter, 111 Ill. 2d 386, 403 (1986) (citing Pekelder v. Edgewater

Automotive Co., 68 Ill. 2d 136, 139 (1977)). Whether to grant such a motion is within the trial

court’s discretion. Id.

¶ 20   Here, two male jurors had been respondents in order-of-protection cases. The trial court

found that their failure to disclose this was not literally false as there was no evidence that either

had been charged with a crime. Moreover, defendant cannot establish prejudice. That two jurors

had been charged with domestic violence themselves arguably made them more sympathetic to

defendant’s case.

¶ 21   The second potential issue identified by OSAD is whether postconviction counsel provided

reasonable assistance.      Because no constitutional right to appointed counsel exists in

postconviction proceedings, postconviction petitioners are entitled only to the level of assistance


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provided by the Act. People v. Flores, 153 Ill. 2d 264, 276 (1992). This means a “reasonable”

level of assistance, which includes compliance with Illinois Supreme Court Rule 651(c). People

v. Johnson, 338 Ill. App. 3d 1004, 1008 (2003). Under that rule, the record on appeal must “contain

a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has

consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her

contentions of deprivation of constitutional rights, has examined the record of the proceedings at

the trial, and has made any amendments to the petitions filed pro se that are necessary for an

adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The

filing of a Rule 651(c) certificate gives rise to a presumption that postconviction counsel provided

reasonable assistance. People v. Jones, 2011 IL App (1st) 092529, ¶ 23. Here, counsel filed a

certificate closely tracking the rule’s language, thus creating a presumption that he provided

reasonable assistance.

¶ 22   OSAD points out that even after counsel filed the amended postconviction petition,

defendant continued to file pro se pleadings and correspondence with the court. In a letter to

defendant, counsel explained that he could not ethically make arguments with no legal basis.

However, he promised to attempt to preserve for appeal defendant’s pro se arguments, including

those raised in the pro se petition. However, it appears that he failed to do so, and the court never

addressed any issues other than the three raised in the amended petition. OSAD contends, though,

that while this might represent deficient performance, defendant cannot demonstrate prejudice

because none of the issues was meritorious. See People v. Greer, 212 Ill. 2d 192, 205 (2004) (Rule

651(c) does not require postconviction counsel to advance frivolous or spurious claims).

¶ 23   One unpreserved allegation from the pro se petition was that Officer Joe Rizzo lied about

an interview he conducted with Anthony Deain. In his report, Rizzo said that Deain stated that


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Stacey had come over several times claiming that she was fighting with her boyfriend. Deain saw

bruises on her during these occasions. At trial, however, Deain testified that he had never seen

Stacey before September 8. For obvious reasons, defense counsel did not ask Deain about his

prior statement to Rizzo, and Rizzo did not testify. Thus, the jury never heard about this statement

from Deain, so its inclusion in the police report was not a factor in defendant’s conviction.

¶ 24     A second such allegation was that the prosecutor had a conflict of interest by virtue of

having represented the victim in prior, unrelated cases. A letter from postconviction counsel that

defendant filed shows that counsel thoroughly investigated the issue and found no evidence that

the prosecutor had represented the victim. In the absence of contrary evidence, this issue is without

merit.

¶ 25     Defendant also alleged that counsel on direct appeal was ineffective for failing to raise

various instances of trial counsel’s alleged ineffectiveness. A criminal defendant is guaranteed the

effective assistance of appellate counsel. People v. Mack, 167 Ill. 2d 525, 531 (1995). However,

counsel on appeal need not raise every conceivable argument, and counsel’s assessment of which

arguments to raise “ ‘will not be questioned unless it can be said that his judgment in this regard

was patently erroneous.’ ” Id. at 533 (quoting People v. Collins, 153 Ill. 2d 130, 140 (1992)).

¶ 26     To succeed on this issue, defendant would have to overcome three layers of presumptions.

Defendant would have to show that (1) trial counsel was ineffective in his handling of the issues

in the first instance, (2) appellate counsel was ineffective for failing to question on appeal trial

counsel’s effectiveness, and (3) postconviction counsel provided unreasonable assistance by not

including the issue in the amended postconviction petition. At each level, a strong presumption

exists that counsel’s conduct was the product of sound trial strategy rather than incompetence. See

Strickland, 466 U.S. at 689 (courts must indulge a strong presumption that counsel’s conduct falls


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within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action “might be considered sound

trial strategy”).

¶ 27    The allegations of defendant’s petition, consisting as they do largely of conclusional

statements, fall far short of overcoming the presumption that three separate attorneys were

incompetent for failing to raise—or more vigorously pursue—these arguments.               Most of

defendant’s allegations under the rubric of ineffective assistance merely take issue with various

rulings of the trial court followed by conclusional allegations that the rulings were wrong. For

example, defendant complains that the trial court admitted evidence of his prior conviction of

domestic battery against the same victim. The State admitted the conviction pursuant to section

115-20 of the Code of Criminal Procedure of 1963, which provides as follows:

        “Evidence of a prior conviction of a defendant for domestic battery *** is admissible in a

        later criminal prosecution for any of these types of offenses when the victim is the same

        person who was the victim of the previous offense that resulted in conviction of the

        defendant.” 725 ILCS 5/115-20(a) (West 2014).

¶ 28    The conviction at issue was for domestic battery against Stacey J.-M.           Defendant

acknowledges that counsel did oppose the admission of this conviction. Although defendant

complains that the statutory “criteria” were not met, he does not identify what criteria were not

met. The conviction was for one of the named offenses against the same victim. Defendant also

complains that the conviction was “more prejudicial than probative” but again fails to explain how.

The statute presupposes a conviction of a similar offense against the same victim, which is of

course prejudicial to the defendant but also highly probative. Defendant fails to identify any

particular circumstances about this particular case that make the prior conviction unusually


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prejudicial or less probative. These vague allegations do not show how defense counsel could

have successfully argued against admission of the conviction. They certainly do not establish that

appellate counsel was ineffective for failing to raise the issue on direct appeal or that

postconviction counsel’s decision not to include the issue in the amended petition was

unreasonable.

¶ 29   We briefly comment on one additional allegation of the pro se petition. Defendant claimed

that counsel was ineffective for failing to argue that his rights were violated when he was tried by

an all-white jury. A state denies a defendant equal protection when it puts him or her on trial

before a jury from which members of his or her race have been purposefully excluded. Batson v.

Kentucky, 476 U.S. 79, 85 (1986). However, this requirement does not guarantee a defendant a

“ ‘petit jury composed in whole or in part of persons of his own race.’ ” Id. (quoting Strauder v.

West Virginia, 100 U.S. 303, 305 (1879)). However, a defendant does have the right to be tried

by a jury whose members are selected pursuant to nondiscriminatory criteria. Id. at 85-86.

¶ 30   Defendant alleged that only one African-American was included in the venire. It appears

that this prospective juror was stricken because he was friends with defendant’s family, obviously

a race-neutral reason. In the pro se petition, defendant complained that there was only one black

person in the venire. However, in order to show that the jury panel was not drawn from a fair

cross-section of the community, a defendant must show that the underrepresentation of a distinct

group in the community is due to the systematic exclusion of the group in the jury-selection

process. People v. Omar, 281 Ill. App. 3d 407, 414 (1996) (citing Duren v. Missouri, 439 U.S.

357, 364 (1979)), which defendant has not done. Accordingly, it was not unreasonable for

postconviction counsel to not pursue this issue.




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¶ 31                                   CONCLUSION

¶ 32   Because no meritorious argument exists that the trial court erred by denying defendant’s

postconviction petition or that postconviction counsel provided unreasonable assistance, we grant

OSAD leave to withdraw and affirm the circuit court’s judgment.


¶ 33   Motion granted; judgment affirmed.




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