People v. Ross , 2022 IL App (1st) 200648-U ( 2022 )

2022 IL App (1st) 200648-UNo. 1-20-0648
Order filed March 25, 2022
Sixth Division
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 15 CR 14590
)
ARAELL ROSS, ) Honorable
) Michael B. McHale,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court.
Justices Harris and Mikva concurred in the judgment.
ORDER
¶1 Held: Summary dismissal of defendant’s pro se postconviction petition is affirmed over
his contention that he presented an arguably meritorious claim of ineffective
assistance of guilty plea counsel.
¶2 Defendant Araell Ross, who pled guilty to four counts of attempted first degree murder and
was sentenced to four concurrent terms of 31 years’ imprisonment, appeals from the summary
dismissal of his pro se petition for relief filed pursuant to the Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2018)). On appeal, he contends that his petition should be advanced to
No. 1-20-0648
second-stage postconviction proceedings because it alleged the arguably meritorious claim that his
plea counsel lied to him in order to induce a guilty plea. For the reasons that follow, we affirm.
¶3 Defendant’s convictions arose from the August 14, 2015, drive-by shooting of Johnnie
Wesley, Marlon English, Anthony Vivian, and Dontae Walker in Chicago. Following his arrest,
defendant was charged with 11 counts of attempted first degree murder, 3 counts of aggravated
battery, and 1 count of aggravated discharge of a firearm.
¶4 On July 5, 2016, defense counsel filed a motion in limine requesting, among other things,
that at trial, the defense “be allowed to introduce the negative findings on photo array line-ups that
included photos of the charged Defendant by (1) Anthony Vivian, (2) Marlon English, and (3)
Chiquita Anderson.” When the motion was heard on July 15, 2016, counsel explained the request
as follows:
“Your Honor, if I may, these are people who at least from the police reports say
that they are present there at the scene of the shooting. They view a photo array that
includes a photograph of [defendant], and I think it’s relevant for them to say that they
essentially saw the incident, could have seen the shooter, and with his photograph in there,
they are essentially saying that’s not him. They are saying that—the lack of identification
goes to a relevant factor suggesting that [defendant] is not the shooter in this incident.”
The trial court ruled that the defense could pursue this line of questioning if the individuals testified
at trial.
¶5 The next time the case was called, on August 22, 2016, the State informed the trial court
that the defense had requested that a gunshot residue (GSR) “kit” be analyzed of the driver of the
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vehicle defendant was stopped in. The State indicated that the results of such analysis would be
ready by September 19, 2016, the day the case was set for a jury trial.
¶6 On September 19, 2016, the State answered ready and defense counsel requested a plea
conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). The court admonished
defendant that during such a conference, the attorneys would inform the court about the facts and
circumstances of the case and about defendant’s criminal history; that the court would “come up
with an offer” it considered fair under the circumstances, which defendant could accept or reject;
and that if defendant were to reject the offer, the case would go to trial before that judge. Defendant
indicated that he understood and had no questions about the process. A conference was then held
off the record.
¶7 Following the conference, defendant stated that he wished to enter pleas of guilty to four
counts of attempted first degree murder: count V, which charged that he personally discharged a
firearm at Wesley; count VI, which charged that he personally discharged a firearm at English;
count IX, which charged that he personally discharged a firearm at English and caused great bodily
harm; and count X, which charged that he personally discharged a firearm at Vivian and caused
great bodily harm.
¶8 The trial court replied that the “offer from the court” was 31 years in prison. The court then
explained the nature of the charges and the potential sentences, the types of trials available to
defendant, and the rights that he was giving up by entering guilty pleas. Defendant stated that he
understood, denied that anyone promised him anything or threatened him in any way to induce
him to plead guilty, and affirmed that he was pleading guilty of his own free will. The court next
stated that, during the Rule 402 conference, the State asked for the statutory maximum sentence
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of 55 years in prison whereas defense counsel asked for the minimum of 31 years. The court
decided, based upon defendant’s age and lack of criminal background, to offer him the statutory
minimum of 31 years in prison.
¶9 The State then presented the factual bases for the pleas, as stipulated to by and between the
parties. On August 14, 2015, just before 7:30 p.m., defendant was a passenger in a minivan driving
south on the 6100 block of South Kimbark Avenue. Defendant fired on a group of people, striking
English in the stomach and in the wrist, and striking Vivian in the wrist. Defendant then proceeded
down the block, where Wesley confronted him about shooting near a playground. Defendant shot
at Wesley, striking Walker, who was nearby, causing a graze wound. Responding officers stopped
the minivan, which was being driven by Darius Herron. Defendant tested positive for GSR, and a
firearms expert determined that all six recovered shell casings were fired from the same firearm.
Wesley identified defendant on scene. Wesley’s wife identified the minivan “as the one where she
had seen a passenger shooting out of that vehicle without identifying the defendant by face.”
¶ 10 The court found that the pleas had been given knowingly and voluntarily and that there
were factual bases for the pleas. It accepted the pleas and found defendant guilty of four counts of
attempted first degree murder. After defendant waived his right to a presentence investigation, the
court imposed four concurrent terms of 31 years’ imprisonment. The State nol-prossed the
remaining counts.
¶ 11 The trial court then admonished defendant that, even though he entered guilty pleas, he still
had the right to appeal. However, in order to appeal, he “would have to file with the clerk of the
court within 30 days of today’s date a written motion to withdraw” the pleas which stated “all the
reasons why you would want to withdraw your plea[s],” and that any issue not raised in the motion
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would be “waived for appeal purposes.” The court further explained that if the motion was granted,
the court would set aside the guilty pleas and sentences, the case would be set for trial, and all the
charges that were “dismissed” would be reinstated and set for trial. The court finally stated that if
defendant could not afford an attorney or a transcript of the plea hearing, they could be provided
free of charge. The court asked defendant whether he understood and defendant answered yes.
¶ 12 About four months after sentencing, defendant filed a pro se motion to withdraw his guilty
pleas and vacate the sentences. The trial court denied the motion, finding it lacked jurisdiction.
This court granted defendant leave to file a late notice of appeal, but ultimately dismissed the
appeal because we lacked jurisdiction and the “admonition exception” did not apply to save
defendant’s appeal. See People v. Ross, 2019 IL App (1st) 172211-U, ¶¶ 12-15.
¶ 13 On November 6, 2019, defendant filed the pro se postconviction petition at issue in this
appeal, supported by his own attestation affidavit, raising three claims.
¶ 14 First, defendant claimed that his defense counsel was ineffective in that he “caused
[defendant] to enter into a plea which was based upon incorrect information and advice from
defense counsel.” Defendant alleged that counsel “on numerous occasions repeatedly told [him]
the person he was in the van with had made incriminating statements against defendant” and
“defense counsel’s statements turned out to be false.” Defendant maintained that counsel’s “false
statements” made him believe that “incriminating statements were going to be presented during a
trial and that a witness would provide testimony against [him],” which “played into [defendant’s]
decision to enter into a plea agreement.” According to defendant, counsel presented “false
information *** for the sole purpose to induce [defendant’s] plea.” Defendant asserted that had
counsel provided truthful information, he “would have strongly considered not entering into a
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plea.” Defendant also alleged that defense counsel was ineffective for failing to inform him prior
to the day of trial that he had tested positive for GSR.
¶ 15 Second, defendant alleged that he entered an open guilty plea, but the trial court
erroneously admonished him as if he had entered a negotiated plea.
¶ 16 Third, defendant alleged that the trial court failed to admonish him pursuant to Illinois
Supreme Court Rule 605(b) (eff. Oct. 1, 2001).
¶ 17 The circuit court summarily dismissed the petition as frivolous and patently without merit
on January 31, 2020. Defendant’s notice of appeal was timely mailed on February 26, 2020, and
date-stamped as received and filed on March 5, 2020. See Ill. S. Ct. R. 373 (eff. July 1, 2017) (“If
received after the due date, the time of mailing by an incarcerated, self-represented litigant shall
be deemed the time of filing”); Ill. S. Ct. R. 612(b)(18) (eff. July 1, 2017) (Rule 373 applies in
criminal proceedings).
¶ 18 On appeal, defendant contends that his petition should be advanced for second-stage
proceedings because it contained the arguably meritorious claim that defense counsel was
ineffective for inducing his guilty plea by falsely claiming that the driver of the minivan involved
in the shooting had implicated him and would be called as a witness at trial.
¶ 19 In cases not involving the death penalty, the Act provides a three-stage process for
adjudication. 725 ILCS 5/122-1 (West 2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The instant
case involves the first stage of the process, during which the trial court independently assesses the
petition, taking the allegations as true and giving the petition a liberal construction. Hodges, 234
Ill. 2d at 10, 21. Based on this review, the trial court must determine whether the petition “is
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frivolous or is patently without merit,” and, if it so finds, dismiss the petition. 725 ILCS 5/122-
2.1(a)(2) (West 2018).
¶ 20 A petition may be dismissed as frivolous or patently without merit “only if the petition has
no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16. A petition has no arguable
basis in law when it is founded in “an indisputably meritless legal theory,” for example, a legal
theory that is completely belied by the record. Id. A petition has no arguable basis in fact when it
is based on a “fanciful factual allegation,” which includes allegations that are “fantastic or
delusional” or contradicted by the record. Id. at 16-17; People v. Morris, 236 Ill. 2d 345, 354
(2010). Our review of a first-stage dismissal is de novo. Hodges, 234 Ill. 2d at 9. Pursuant to this
standard, we review the trial court’s judgment, not the reasons given for it. People v. Jones, 399
Ill. App. 3d 341, 359 (2010).
¶ 21 Traditionally, to establish ineffective assistance of counsel, a defendant must show (1) that
counsel’s representation fell below an objective standard of reasonableness; and (2) but for
counsel’s errors, there is a reasonable probability that the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, our supreme court has
indicated that in the context of first-stage postconviction proceedings, a defendant need not
conclusively establish these factors; in Hodges, our supreme court held that “a petition alleging
ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s
performance fell below an objective standard of reasonableness and (ii) it is arguable that the
defendant was prejudiced.” Hodges, 234 Ill. 2d at 17.
¶ 22 In this court, defendant asserts that the legal theory of ineffective assistance of counsel set
forth in his petition is not indisputably meritless. He argues that his petition, liberally construed,
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alleged that defense counsel misrepresented the strength of the State’s evidence in order to pressure
him to plead guilty, and that he learned of the misrepresentations sometime thereafter. According
to defendant, defense counsel lied to him by communicating that Herron would testify against him
at a trial. He maintains that counsel’s use of a falsehood to pressure him to plead guilty is conduct
that falls far outside the range of competence demanded of attorneys in criminal cases. Defendant
also asserts that his petition demonstrated he was prejudiced by counsel’s representation, as he
alleged in the petition that absent counsel’s misrepresentation, he would have “strongly
considered” going to trial. He maintains that, liberally construing this claim, “if defense counsel
had not lied to [defendant] to induce a guilty plea, [defendant] would have pursued a trial defense
that challenged the prosecution’s witnesses, as shown by the defense’s motion in limine, which
alleged that several individuals who witnessed the shooting were unable to identify [him].”
¶ 23 In addition, defendant asserts that the defense could have theorized that defendant tested
positive for GSR because Herron was the shooter and GSR saturated the minivan’s interior and
settled on him. Defendant further argues that the factual allegations supporting his claim, taken as
true and liberally construed, are not fanciful. He asserts that his allegation that counsel lied to him
about Herron’s readiness to testify against him at a trial “is not rebutted by the record because
Herron’s name did not appear in the prosecution’s answer to discovery.” Finally, defendant
acknowledges that he did not attach an affidavit from defense counsel or explain its absence, but
maintains that his claim falls within an exception to the affidavit requirement because the difficulty
or impossibility of obtaining such an affidavit from counsel is self-apparent.
¶ 24 Initially, we cannot ignore that defendant’s postconviction petition includes no supporting
evidence for his claim of ineffective assistance of counsel. Under section 122-2 of the Act,
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postconviction petitions must be supported with “affidavits, records, or other evidence” or “state
why the same are not attached.” 725 ILCS 5/122-2 (West 2018); see also People v. Collins, 202
Ill. 2d 59, 66-67 (2002) (verification affidavit not “substitute” for evidentiary support). We are
mindful that where a defendant alleges ineffective assistance of counsel, his noncompliance with
this provision may be excused “where the petition contains facts sufficient to infer that the only
affidavit the defendant could have furnished, other than his own sworn statement, was that of his
attorney.” People v. Hall, 217 Ill. 2d 324, 333 (2005). Nevertheless, a postconviction petition still
“must supply sufficient factual basis to show the allegations in the petition are ‘capable of objective
or independent corroboration.’ ” People v. Allen, 2015 IL 113135, ¶ 24 (quoting Collins, 202 Ill.
2d at 67).
¶ 25 Defendant asserted in his petition that counsel repeatedly told him Herron had made
statements incriminating him and said Herron would testify against him at trial, and that counsel’s
statements “turned out to be false.” However, defendant provided no insight as to how or when he
came to know counsel’s assertions were untrue. While a pro se petitioner is only required to
include a limited amount of detail in a postconviction petition and need not present formal legal
arguments at the first stage, he is not excused from providing any factual detail at all surrounding
the alleged constitutional violation. People v. Hatter, 2021 IL 125981, ¶ 24. Also, although
defendant cannot be expected to have procured an affidavit from his trial counsel to support his
claim (see Hall, 217 Ill. 2d at 333), we agree with the State that he cannot be excused for failing
to obtain an affidavit or sworn statement from Herron or to explain why he did not do so. Without
such an affidavit or explanation, defendant’s claim amounts to little more than speculation that
counsel falsely told him Herron would “provide testimony against [him]” at trial. See People v.
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Bew, 228 Ill. 2d 122, 135 (2008) (claims of ineffective assistance of counsel cannot be based on
mere speculation). In light of the lack of supporting documentation and the failure to provide any
justification for its absence, summary dismissal was justified. 725 ILCS 5/122-2 (West 2018);
People v. Delton, 227 Ill. 2d 247, 254 (2008).
¶ 26 Moreover, summary dismissal was proper because defendant’s claim of ineffective
assistance of counsel has no arguable basis in law or fact. See Hodges, 234 Ill. 2d at 16. Where a
defendant claims his trial counsel was ineffective during a guilty plea proceeding, he must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty
and would have insisted on going to trial. Hatter, 2021 IL 125981, ¶ 26. In order to meet
Strickland’s prejudice prong, the defendant must claim that he would have been better off going
to trial because he would have been acquitted or because he had a viable defense. Id.; Hall, 217
Ill. 2d at 335-36.
¶ 27 Here, defendant asserted in his petition that “had defense counsel provided truthful
information, [he] would have strongly considered not entering into a plea.” In his brief on appeal,
defendant suggests that at trial, the defense “would have pursued a trial defense that challenged
the prosecution’s witnesses, as shown by the defense’s motion in limine, which alleged that several
individuals who witnessed the shooting were unable to identify [defendant],” and that defense
counsel could have theorized at a trial that Herron was the shooter and GSR saturated the minivan’s
interior and settled on defendant. But nowhere in the petition did defendant assert he was innocent
or explain what defense he may have utilized at a trial. Defendant’s conclusory allegation in his
petition that absent counsel’s alleged lying, he would have “strongly considered” not pleading
guilty is insufficient to establish prejudice. See Hatter, 2021 IL 125981, ¶ 26 (assertion that
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defendant would not have pled guilty must be accompanied by claim of innocence or a plausible
defense).
¶ 28 We agree with the State that we must ask whether defendant arguably would have been
“better off” rejecting the plea offer and insisting on a trial. Id. ¶¶ 26, 30. Here, had defendant
proceeded to a trial, he would have had to defend against all of the charges that had been nol-
prossed in exchange for his guilty plea and would have faced a maximum sentence of 55 years in
prison for attempted first degree murder during which he personally discharged a firearm and
caused great bodily harm. 720 ILCS 5/8-4(c)(1)(D) (West 2014); 730 ILCS 5/5-4.5-25(a) (West
2014). In these circumstances, there was no arguable advantage to defendant in withdrawing his
guilty plea. See Hatter, 2021 IL 125981, ¶¶ 38-40 (affirming summary dismissal where there was
no arguable advantage in withdrawing guilty plea because the defendant would have had to defend
against nol-prossed charges and faced harsher sentencing penalties had he insisted on a trial).
Where defendant is unable to make an arguable showing of prejudice, his petition is founded on a
meritless legal theory and, therefore, has no arguable basis in law. See Hodges, 234 Ill. 2d at 16.
¶ 29 We further note that the record rebuts a factual allegation upon which defendant’s claim of
ineffectiveness is based. Specifically, defendant alleged in his petition that counsel falsely told him
Herron would “provide testimony against [him]” at trial. In his brief on appeal, defendant argues
that this allegation is not rebutted by the record because Herron’s name did not appear in the
prosecution’s answer to discovery. However, our review of the record has revealed that, contrary
to defendant’s assertion, Herron actually was identified as a potential witness by the State. In its
answer to discovery, the State listed about 30 police personnel and civilians that it “may or may
not call” as witnesses. “Darius Heron” [sic] is the twelfth civilian listed. As such, the record
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contradicts defendant’s allegation that defense counsel lied by telling him Herron would be
testifying for the State at trial. Where defendant’s petition relied on a factual allegation that is
contradicted by the record, it has no arguable basis in fact. Hodges, 234 Ill. 2d at 16-17. Thus,
summary dismissal was warranted. See People v. Coleman, 183 Ill. 2d 366, 381-82 (1998) (if the
factual allegations upon which a claim is predicated are contradicted by the record, the claim is
inherently frivolous and patently without merit and dismissal will be upheld).
¶ 30 In sum, defendant’s petition claiming ineffective assistance of counsel contains no
supporting evidence, does not explain its absence, and has no arguable basis either in law or in
fact. In these circumstances, it was properly dismissed as frivolous and patently without merit.
¶ 31 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 32 Affirmed.
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