People v. Leverette , 2022 IL App (3d) 190639-U ( 2022 )

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) 190639-UOrder filed March 30, 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,
) Stark County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0639
v. ) Circuit No. 16-CF-11
)
THOMAS M. LEVERETTE, ) Honorable
) Michael P. McCuskey,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Presiding Justice O’Brien and Justice Holdridge concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err in dismissing defendant’s postconviction petition at
the first stage.
¶2 Defendant, Thomas M. Leverette, appeals from the first-stage dismissal of his
postconviction petition. Defendant argues that the Stark County circuit court erred in dismissing
his petition because he presented the gist of a constitutional claim of ineffective assistance of
counsel. We affirm.
¶3 I. BACKGROUND
¶4 On June 29, 2016, the State charged defendant with four counts of aggravated criminal
sexual abuse (720 ILCS 5/11-1.60(d) (West 2014)). The charges alleged different sexual acts
occurring between defendant, who was over 17 years of age and more than 5 years older than the
victim, who was between the ages of 13 and 17. The conduct was alleged to have occurred
between May and August of 2014 and 2015. The public defender was appointed to represent
defendant.
¶5 Defendant pled guilty to counts I through III on October 28, 2016. In exchange for his
guilty plea and promise to testify truthfully in other pending matters, the State agreed to cap its
sentencing recommendation at seven years’ imprisonment and dismiss the remaining count.
¶6 The State provided the following factual basis for the plea. The victim would testify that
he was 14 years old in the summer of 2014 and that he knew defendant. The victim went to
defendant’s home to play video games, at which time the sexual abuse occurred. In the summer
of 2015, defendant committed additional acts of sexual abuse with the victim. Defendant asked
the victim his age in the summer of 2014, and the victim replied he was 14 years old. Defendant
admitted to the police that he committed the 2014 sexual abuse. Defendant was 26 years old in
2014.
¶7 The court accepted defendant’s plea and continued the case for a sentencing hearing. The
court ordered a presentence investigation report (PSI) be prepared.
¶8 At the sentencing hearing, the parties conversed about a fact presented in the PSI that had
not been previously discussed on the record. The PSI stated that defendant gave a statement to
investigators on July 5, 2016, asserting that he had met the victim on a homosexual dating
website. During arguments, the court expressed some confusion regarding this statement. In
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response, the State informed the court that “[t]here was some familiarity between the defendant
and the victim and family.” In response, defense counsel indicated that “[t]heir families were
acquainted” but he did not know the extent of that acquaintance. Both sides argued and made
sentencing recommendations. Defendant made a statement in allocution. At the conclusion of the
hearing, the court sentenced defendant to four years’ imprisonment. No postjudgment motions
were filed, nor did defendant appeal his case.
¶9 On August 29, 2019, defendant filed, as a self-represented litigant, a postconviction
petition. The petition generally alleged that the State inadvertently suppressed exculpatory and
impeaching evidence, and appointed counsel provided ineffective assistance by failing to render
adequate legal assistance and the conviction could have been overturned “as the strategic
decisions upon which the defendant was advised by counsel during the guilt and punishment
phase, which constitutes ineffective assistance of counsel.”
¶ 10 Defendant more specifically claimed that in 2014 he downloaded a phone application
(app) for a social website for homosexual men to meet. The app was intended only for adult use.
The app used location data and required its users to input a valid email address and consent to
terms and conditions which required the user to indicate that they were 18 years of age or older
at that time. Defendant indicated that after creating his account, the app showed the victim as a
user in his area with the listed age of 19 years old. Defendant messaged the victim through the
app, saying “I did not know you were gay.” The victim did not respond to defendant. Defendant
then messaged the victim on Facebook. Defendant alleged that the information regarding the
victim’s fraudulent profile with the deceptive age information, having been disclosed by the
State or raised by his counsel, would have been used to challenge the victim’s credibility.
¶ 11 The court summarily dismissed defendant’s petition, and defendant appeals.
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¶ 12 II. ANALYSIS
¶ 13 Defendant argues that his petition sets forth sufficient facts to state the gist of a
constitutional claim for ineffective assistance of counsel.
¶ 14 The Post-Conviction Hearing Act creates a procedure for imprisoned criminal defendants
to collaterally attack their convictions or sentences based on a substantial denial of their rights
under the United States Constitution, the Illinois Constitution, or both. 725 ILCS 5/122-1(a)(1)
(West 2018). “At the first stage, the court must accept as true and liberally construe all of the
allegations in the petition unless contradicted by the record.” People v. Walker, 2019 IL App (3d)
170374, ¶ 13. A defendant need only state the gist of a constitutional claim, which is a low
threshold. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). “At this stage, a defendant need not
make legal arguments or cite to legal authority.” Id.¶ 15 “If the trial court finds in the first stage of proceedings that the petition is frivolous or
patently without merit, it shall summarily dismiss the petition ***.” People v. Moore, 2018 IL
App (3d) 160271, ¶ 15. A petition is considered frivolous if it has no arguable basis in law or
fact. People v. Hodges, 234 Ill. 2d 1, 11-13, 16 (2009). Although the threshold for a first-stage
postconviction petition is low, defendant must still present a “modest amount of detail.” People
v. Jones, 213 Ill. 2d 498, 504 (2004). The purpose of postconviction proceedings is to inquire
into issues that were not, and could not, have been raised on direct appeal. People v. Barrow, 195
Ill. 2d 506, 519 (2001). Issues that could have been raised on direct appeal, and were not, are
procedurally forfeited. Id. The circuit court’s first-stage dismissal of a postconviction petition is
reviewed de novo. Hodges, 234 Ill. 2d at 9.
¶ 16 First, defendant concedes on appeal that his claim that the State inadvertently suppressed
evidence of an exculpatory and impeaching nature that established that the victim lied about his
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age is without merit. See Brady v. Maryland, 373 U.S. 83, 1196-97 (1963). Defendant
acknowledges that this issue is not viable as this evidence was within defendant’s control and
was not used by the State.
¶ 17 Second, defendant argues that his petition stated the gist of a claim of ineffective
assistance of counsel. At the first stage of postconviction proceedings, a petition that alleges
ineffective assistance of counsel may not be summarily dismissed if it is arguable that:
(1) counsel’s performance fell below an objective standard of reasonableness; and (2) the
defendant was prejudiced. Hodges, 234 Ill. 2d at 17. To establish prejudice on a guilty plea,
defendant’s allegation that he would have pled not guilty and proceeded to trial but for counsel’s
deficiency must be accompanied by either a claim of innocence or the articulation of a plausible
defense that could have been raised at trial. People v. Hall, 217 Ill. 2d 324, 335-36 (2005).
¶ 18 Here, defendant does not provide any facts asserting or reasonably implying an inability
to have raised this claim of ineffective assistance in a direct appeal; thus, the issue is
procedurally forfeited. Additionally, defendant’s claims are so general that they lack a basis in
fact. Defendant does not define or point to any specific deficiencies in counsel’s representation
but merely states that the conviction could have been challenged if not for counsel’s deficient
advice and strategy. Nor does defendant allege sufficient prejudice, that is, he would not have
pled guilty but for counsel’s deficient performance.
¶ 19 The frivolous nature of defendant’s petition is shown by the trial court’s finding that
“[t]he alleged suppressed evidence was addressed in the PSI and even commented on in the
sentencing hearing.” The court also correctly noted that even if the victim’s profile listed his age
as 19, the record revealed that defendant was acquainted with the victim and his family prior to
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these events. For these reasons, we find defendant’s petition does not have a basis in fact or law
necessary to avoid summary dismissal.
¶ 20 III. CONCLUSION
¶ 21 The judgment of the circuit court of Stark County is affirmed.
¶ 22 Affirmed.
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