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                                Appellate Court                            Date: 2019.07.25
                                                                           10:02:12 -05'00'



                  People v. Walker, 2018 IL App (1st) 160509



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-
Caption            Appellee, v. BRIAN WALKER, Petitioner-Appellant.



District & No.     First District, Fourth Division
                   Docket No. 1-16-0509



Filed              December 27, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 05-CR-18000; the
Review             Hon. Thomas V. Gainer Jr., Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Thomas A. Lilien, and Elena B. Penick, of State
Appeal             Appellate Defender’s Office, of Elgin, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Joseph Alexander, and Phyllis Warren, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              JUSTICE GORDON delivered the judgment of the court, with
                   opinion.
                   Presiding Justice McBride and Justice Burke concurred in the
                   judgment and opinion.
                                                OPINION

¶1       Defendant Brian Walker was convicted, after a jury trial, of the first degree murder of
     Dehombre Barnett. The jury also found that defendant personally discharged the firearm that
     caused Barnett’s death. Thus, defendant was sentenced to 28 years, plus an additional 25 years
     due to a firearm enhancement, for a total sentence of 53 years with the Illinois Department of
     Corrections (IDOC).
¶2       Defendant now appeals the first-stage dismissal of his pro se postconviction petition as
     frivolous and patently without merit. Although his pro se petition contained several claims, he
     raises only one claim on appeal: that his counsel was ineffective for failing to inform him of a
     mandatory 25-year firearm enhancement, thereby leading defendant to reject a 27-year plea
     offer from the State. For the following reasons, we do not find his arguments persuasive and
     affirm the first-stage dismissal.

¶3                                         I. BACKGROUND
¶4        Defendant was charged in a 12-count indictment with various offenses, including first
     degree murder and attempted armed robbery, stemming from the shooting death of Barnett at
     Barnett’s barber shop on July 8, 2005, during an attempted robbery. Before trial, the State
     dismissed all charges except for one count, which was the count for felony murder predicated
     on attempted armed robbery.
¶5        In this appeal, defendant does not challenge either the sufficiency of the evidence against
     him or the admission of evidence at trial. Therefore, we incorporate by reference our prior
     opinion, where we described the evidence in detail. People v. Walker, 392 Ill. App. 3d 277,
     279-85 (2009). In sum, the State’s evidence established that defendant and Matthew Moss, an
     uncharged co-offender, entered the victim’s barber shop shortly before the murder and ran out
     after two gunshots were fired. In a signed statement provided to an assistant state’s attorney,
     defendant stated that Barnett sold marijuana from his barber shop, that Moss intended to rob
     Barnett, that defendant “would take any of the money or weed” that Moss “was willing to
     give,” that the victim, Barnett, pulled out a gun, and that defendant pulled out his own gun,
     fired two shots at Barnett, and ran. In the signed statement, defendant admitted that the gun of
     his co-offender, Moss, “click[ed]” but did not fire, leaving defendant as the sole shooter.
     However, in a stipulation between the parties, a forensic scientist stated that, if called to testify,
     he would testify that a gunshot residue test performed on defendant’s hands did not detect
     gunshot residue, but that “gunshot residue particles can be effectively removed by washing or
     wiping the surface” or with “normal hand activity over time.” A forensic pathologist testified
     that Barnett died as the result of a gunshot that entered above Barnett’s left temple, above the
     eyebrow.
¶6        The jury found defendant guilty of first degree murder and also found that he personally
     discharged the firearm that proximately caused the victim’s death. At this first sentencing, the
     trial court sentenced defendant to 35 years for felony murder, plus the mandatory 25-year
     enhancement for killing with a firearm, for a total of 60 years. (There have been three
     sentencings, as we describe below.)
¶7        On appeal, defendant claimed (1) that the trial court abused its discretion by allowing the
     State to proceed solely on a felony murder charge, thereby precluding defendant from seeking


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       jury instructions on self-defense and second degree murder, (2) that the trial court erred by
       refusing to allow the defense to present evidence that a co-offender was not charged,
       (3) that the trial court erred by refusing to give defendant’s issues instruction on armed
       robbery, and (4) that defendant’s sentence was both excessive and improper because the trial
       court considered in aggravation matters that were implicit in the offense and facts unsupported
       by the evidence.
¶8         For reasons already stated in our prior opinion, this court affirmed the judgment of
       conviction, but remanded for resentencing, “with instructions that the trial court may not
       consider in aggravation the killing by a firearm, because that is a matter implicit in the firearm
       enhancement for the felony murder conviction.” Walker, 392 Ill. App. 3d at 303.
¶9         At the second sentencing, held on May 18, 2010, the trial court sentenced defendant to 28
       years for felony murder, plus 25 years for the firearm enhancement, for a total of 53 years.
¶ 10       On appeal from the second sentencing, this court found that “there is nothing in the record
       to show whether the sentencing court considered defendant’s subjective belief that he shot the
       victim in self-defense, which is a statutory mitigating factor in sentencing only in a felony
       murder case.” People v. Walker, 2012 IL App (1st) 102284-U, ¶ 1. This court vacated
       defendant’s sentence a second time and remanded for a third sentencing in order “for the
       sentencing court to consider defendant’s [subjective] belief.” Walker, 2012 IL App (1st)
       102284-U, ¶ 1.
¶ 11       At the third sentencing, held on December 18, 2012, the trial court considered defendant’s
       subjective belief in the need for self-defense and again sentenced defendant to 28 years for
       felony murder, plus 25 years for the firearm enhancement, for a total of 53 years. Defendant
       filed an appeal from the third sentencing, but this court granted counsel’s Anders motion to
       withdraw and affirmed defendant’s sentence. Anders v. California, 386 U.S. 738 (1967); In re
       J.P., 2016 IL App (1st) 161518, ¶¶ 5-6 (pursuant to Anders, appointed counsel may request
       leave to withdraw from representation on direct appeal if counsel “conclude[s] that no viable
       grounds exist for the appeal”).
¶ 12       In a pro se postconviction petition, filed on November 17, 2015, defendant raised several
       claims, only one of which he raises on appeal: that his counsel was ineffective for failing to
       inform him of a mandatory 25-year firearm enhancement, thereby leading defendant to reject a
       27-year plea offer from the State. With respect to this claim, the trial court found, among other
       things, that “petitioner was aware that if he rejected the purported plea offer he could face a
       sentence of up to 60 years for first degree murder, regardless of any sentencing enhancement,
       yet [he] still chose to do so. Petitioner’s actual sentence was not in excess of the maximum
       sentence he knowingly risked by rejecting the plea offer.”
¶ 13       Thus, on January 4, 2016, the trial court dismissed the petition as frivolous and patently
       without merit, and this appeal followed. On appeal, defendant asks this court to reverse the trial
       court’s summary dismissal and remand for second-stage proceedings. However, defendant
       does not specify what relief he ultimately seeks from these proceedings. From his contentions,
       it appears that he seeks a reversal of his conviction and a remand for the resumption of plea
       negotiations and a new trial, if necessary. See People v. Hale, 2013 IL 113140, ¶ 1; People v.
       White, 2011 IL 109616, ¶¶ 14, 31. However, even if this case was remanded as defendant
       seeks, there is no guarantee that the State will again make a 27-year plea offer, as defendant
       alleges it previously made.


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¶ 14                                          II. ANALYSIS
¶ 15           Defendant claims that the trial court erred in dismissing his pro se postconviction
       petition as frivolous and patently without merit. On this appeal, defendant raises one claim:
       that his trial counsel was ineffective for failing to advise him of a mandatory 25-year firearm
       enhancement, leading him to reject a plea offer by the State of 27 years. For the following
       reasons, we affirm.

¶ 16                               A. Stages of a Post-Conviction Proceeding
¶ 17        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) “provides
       a method by which persons under criminal sentence in this state can assert that their
       convictions were the result of a substantial denial of their rights under the United States
       Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009);
       People v. Tyler, 2015 IL App (1st) 123470, ¶ 143. Specifically, section 122-1 of the Act
       provides:
                     “(a) Any person imprisoned in the penitentiary may institute a proceeding under
                 this Article if the person asserts that:
                         (1) 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
                     of the State of Illinois or both[.]” 725 ILCS 5/122-1(a) (West 2016).
       The Act permits a person under a criminal sentence to challenge his or her conviction or
       sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d
       458, 471 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)).
¶ 18        To be entitled to postconviction relief, a petitioner bears the burden of establishing that a
       substantial deprivation of his constitutional rights occurred “in the proceedings that produced
       the conviction or sentence being challenged.” Pendleton, 223 Ill. 2d at 471; People v. Waldrop,
       353 Ill. App. 3d 244, 249 (2004); 725 ILCS 5/122-1(a) (West 2016).
¶ 19        In noncapital cases, the Act contemplates three stages. Pendleton, 223 Ill. 2d at 471-72. At
       the first stage, the trial court has 90 days to review a petition and may summarily dismiss it, if
       the trial court finds that the petition is frivolous and patently without merit. 725 ILCS
       5/122-2.1(a)(2) (West 2016); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss
       the petition within that 90-day period, the trial court must docket it for further consideration.
       725 ILCS 5/122-2.1(b) (West 2016); Pendleton, 223 Ill. 2d at 472.
¶ 20        If the petition survives this initial review, the process moves to the second stage, where the
       trial court appoints counsel for a petitioner who cannot afford counsel. 725 ILCS 5/122-4
       (West 2016). Appointed counsel may make any amendments that are “necessary” to the
       petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42 (2007).
       After counsel has reviewed and amended the petition if needed, the State may file a motion to
       dismiss or file an answer. 725 ILCS 5/122-5 (West 2016); Pendleton, 223 Ill. 2d at 472. If the
       State moves to dismiss, the trial court may hold a dismissal hearing, which is still part of the
       second stage. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).
¶ 21        If the petition proceeds, it advances to a third-stage evidentiary hearing. “[W]hen a
       petitioner’s claims are based upon matters outside the record, the Postconviction Act does not
       intend such claims [to] be adjudicated on the pleadings.” People v. Snow, 2012 IL App (4th)
       110415, ¶ 15; see also 725 ILCS 5/122-6 (West 2016); Pendleton, 223 Ill. 2d at 472-73. At an

                                                    -4-
       evidentiary hearing, the trial court “may receive proof by affidavits, depositions, oral
       testimony, or other evidence,” and “may order the [defendant] brought before the court.” 725
       ILCS 5/122-6 (West 2016).
¶ 22        When a matter is decided without an evidentiary hearing, we review the trial court’s
       decision under a de novo standard of review. People v. Hommerson, 2014 IL 115638, ¶ 6
       (first-stage summary dismissal); Tyler, 2015 IL App (1st) 123470, ¶ 151 (second-stage
       dismissal) (citing Pendleton, 223 Ill. 2d at 473). Thus, a de novo standard of review applies to
       the case at bar. Under a de novo standard, the reviewing court owes no deference to the trial
       court’s judgment or reasoning. Tyler, 2015 IL App (1st) 123470, ¶ 151 (citing People v.
       Vincent, 226 Ill. 2d 1, 14 (2007)). De novo consideration means that the reviewing court
       performs the same analysis that a trial judge would perform. Tyler, 2015 IL App (1st) 123470,
       ¶ 151.
¶ 23        In addition, a reviewing court may affirm on any basis found in the record. In re Gabriel
       W., 2017 IL App (1st) 172120, ¶ 31; People v. Miles, 2017 IL App (1st) 132719, ¶ 22; People
       v. Daniel, 2013 IL App (1st) 111876, ¶ 37 (“we may affirm on any basis appearing in the
       record, whether or not the trial court relied on that basis or its reasoning was correct”).

¶ 24                                B. Ineffective Assistance of Counsel
¶ 25       Defendant claims that the trial court erred in dismissing his petition at the first stage
       because he made a nonfrivolous claim of ineffective assistance of trial counsel.
¶ 26       Every Illinois defendant has a constitutional right to the effective assistance of counsel
       under the sixth amendment to the United States Constitution and under the Illinois
       Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala,
       2013 IL 113688, ¶ 36. Claims of ineffective assistance are judged against the standard set forth
       in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing
       People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois)). To prevail
       on a claim of ineffective assistance, a defendant must show both (1) that counsel’s
       performance was deficient and (2) that this deficient performance prejudiced defendant.
       Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).
¶ 27       To establish the first prong, that counsel’s performance was deficient, a defendant must
       show “that counsel’s performance was objectively unreasonable under prevailing professional
       norms.” Domagala, 2013 IL 113688, ¶ 36. To establish the second prong, that this deficient
       performance prejudiced the defendant, the defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694).
       “[A] reasonable probability that the result would have been different is a probability sufficient
       to undermine confidence in the outcome—or put another way, that counsel’s deficient
       performance rendered the result of the trial unreliable or fundamentally unfair.” People v.
       Evans, 209 Ill. 2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135 (2007).
¶ 28       Although the Strickland test is a two-prong test, our analysis may proceed in any order.
       Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a trial court
       may dismiss the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264, 283 (1992).
       Thus, if a court finds that defendant was not prejudiced by the alleged error, it may dismiss on
       that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476 (2003);
       Albanese, 104 Ill. 2d at 527.

                                                    -5-
¶ 29                              C. Strickland in the Plea Bargain Context
¶ 30       In the plea bargain context, to show prejudice, a defendant must establish certain factors, as
       we discuss below. Our supreme court found that the factors listed in People v. Curry, 178 Ill.
       2d 509, 529-30 (1997), no longer control and that the factors set forth in Missouri v. Frye, 566
       U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), are the ones that now control. Our
       supreme court clearly stated: “Frye and Cooper, rather than Curry, control and the factors set
       forth in those cases must now be relied upon in deciding if prejudice has been shown where a
       plea offer has lapsed or been rejected because of counsel’s deficient performance.” Hale, 2013
       IL 113140, ¶ 20.
¶ 31       According to Hale, Frye, and Cooper, to show prejudice in the plea bargain context, a
       defendant must show a reasonable probability (1) that, but for his counsel’s deficient advice,
       he would have accepted the plea offer, (2) that the plea would have been entered without the
       prosecution cancelling it, (3) that the trial court would have accepted the bargain, assuming
       that it had discretion under state law to accept or reject it, and (4) that “the end result of the
       criminal process would have been more favorable by reason of a plea.” Frye, 566 U.S. at 147;
       Cooper, 566 U.S. at 163-64; Hale, 2013 IL 113140, ¶ 19.
¶ 32       In addition, “[t]he disparity between the sentence a defendant faced and a significantly
       shorter plea offer can be considered supportive of a defendant’s claim of prejudice.” Hale,
       2013 IL 113140, ¶ 18.
¶ 33       In the case at bar, defendant cannot show a reasonable probability that, but for his counsel’s
       deficient advice, he would have accepted the plea offer; and, thus, his petition is patently
       without merit on the first factor. See Frye, 566 U.S. at 147; Cooper, 566 U.S. at 163-64; Hale,
       2013 IL 113140, ¶ 19.
¶ 34       Even without the mandatory firearm enhancement, defendant knew he was facing a
       possible 60-year sentence for murder, and the 53-year sentence he actually received was less
       than this maximum. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (60-year maximum).1 In addition,
       even without the mandatory enhancement, defendant knew he was facing a possible 20-year
       minimum for murder. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004) (20-year minimum). The alleged
       plea offer was only seven years more than the minimum that defendant does not deny he knew
       of and, thus, on the very low end of his possible exposure. In sum, even if we accept his
       allegations as true, defendant was willing to both risk a possible 60-year sentence for murder
       and reject an offer of only seven years more than the minimum, in the hope of being acquitted.
       See Hale, 2013 IL 113140, ¶¶ 8, 28 (finding no prejudice from a 40-year total sentence, where
       “defendant was willing to risk a 30-year sentence and go to trial, rather than plead guilty in
       exchange for a 15-year sentence”).
¶ 35       Defendant was willing to take this risk even though he knew that his criminal history
       demonstrated both a resistance to change and a prior involvement with drugs and guns. His
       presentence report demonstrates that, on December 13, 2001, he was sentenced to 18 months’
       probation for attempted possession of cocaine. On July 17, 2002, a violation of probation
       petition was filed. On August 6, 2002, his probation was terminated unsatisfactorily when he
       was sentenced for new offenses, namely, six years for the manufacture or delivery of cocaine
       and three years for the possession of a weapon by a felon, to run concurrently. On July 8, 2005,

           1
            Section 5-8-1(a)(1)(a) provides that, for first degree murder, “a term shall be not less than 20 years
       and not more than 60 years.” 730 ILCS 5/5-8-1(a)(1)(a) (West 2004).

                                                       -6-
       shortly after his release from his prior drug and weapons charges, the instant offense occurred,
       which also involved drugs and weapons. In this offense, defendant, according to his own
       statement, shot the victim whom he hoped would be a source of drugs, money, or both. Despite
       a criminal history that demonstrated a resistance to change, defendant chose to reject a plea
       offer that was only seven years above the minimum that he does not deny he knew of. In three
       sentencings before two different trial judges, defendant did not receive the minimum.
¶ 36       The “showing of prejudice must encompass more than a defendant’s own ‘ “subjective,
       self-serving” ’ testimony.” Hale, 2013 IL 113140, ¶ 18. The petition at bar is not at the
       third-stage evidentiary hearing phase of the proceedings, as was the petition in Hale, 2013 IL
       113140, ¶ 11. However, even if we assume that defendant received a 27-year plea offer from
       the State, that this offer remained open until the start of trial, that his petition asserts that he
       would have accepted this offer if he knew of the mandatory enhancement, and that his counsel
       failed to inform him of it, there is still nothing alleged in the petition to show prejudice, except
       for defendant’s own subjective, self-serving remarks. See Hale, 2013 IL 113140, ¶ 18. A court
       may consider a disparity between “the sentence a defendant faced” and a plea offer as objective
       evidence supporting defendant’s claim. Hale, 2013 IL 113140, ¶ 18. However, as we
       explained above, this consideration does not help defendant here. Thus, even if we accept his
       contention that his attorney failed to inform him of the enhancement, he cannot show prejudice
       on the facts observed in this case.
¶ 37       Our supreme court in Hale concluded that it would be unnecessary to review the other
       arguments of the State since we have already concluded that defendant cannot establish the
       prejudice prong of defendant’s claim of ineffective assistance of trial counsel. Hale, 2013 IL
       113140, ¶ 30 (“we find it unnecessary to examine the additional factors necessary for a finding
       of prejudice”).
¶ 38       In conclusion, on the particular facts of this case, we find that defendant cannot show
       prejudice where he faced a possible 60-year sentence, even without the 25-year firearm
       enhancement, and where his 53-year sentence is less than the 60 years he was willing to risk.

¶ 39                                    III. CONCLUSION
¶ 40      For the foregoing reasons, we affirm the trial court’s first-stage dismissal of defendant’s
       pro se postconviction petition.

¶ 41      Affirmed.




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