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                               Appellate Court                          Date: 2019.07.02
                                                                        12:35:11 -05'00'




                  People v. Stoecker, 2019 IL App (3d) 160781



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            RONALD LEE STOECKER, Defendant-Appellant.



District & No.     Third District
                   Docket No. 3-16-0781



Filed              April 26, 2019



Decision Under     Appeal from the Circuit Court of Stark County, No. 96-CF-14; the
Review             Hon. Michael P. McCuskey, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Peter A. Carusona, and Andrew J. Boyd, of State
Appeal             Appellate Defender’s Office, of Ottawa, for appellant.

                   James D. Owens, State’s Attorney, of Toulon (Patrick Delfino, David
                   J. Robinson, and Gary F. Gnidovec, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              PRESIDING JUSTICE SCHMIDT delivered the judgment of the
                   court, with opinion.
                   Justice Carter concurred in the judgment and opinion.
                   Justice Lytton dissented, with opinion.
                                             OPINION

¶1       Defendant, Ronald Lee Stoecker, appeals the dismissal of his petition for relief from
     judgment, arguing that (1) his due process rights were violated where the court did not give
     him a meaningful opportunity to respond to the motion to dismiss and the court held an
     ex parte hearing on the motion and (2) his counsel did not adequately represent him. We
     affirm.

¶2                                       I. BACKGROUND
¶3       In 1998, a jury convicted defendant of first degree murder (720 ILCS 5/9-1(a)(2) (West
     1996)) and aggravated criminal sexual assault (id. § 12-14(a)(2)). The evidence at trial
     established that 15-year-old Jean Humble left the Children’s Home in Peoria, Illinois, at
     approximately 8:45 p.m. on May 29, 1996. Humble accepted a ride from defendant, who
     drove her to a remote area, sexually assaulted her, cut her throat, and left her. Humble walked
     to get help. The attack occurred within a mile of defendant’s previous residence, which was
     vacant at the time. Humble arrived at the home of Sadie Streitmatter at 10:45 p.m. and told
     Streitmatter that she had been raped. Streitmatter called 911, and an ambulance transported
     Humble to a hospital in Peoria around 12 a.m. At the hospital, Humble was unable to speak
     but responded to questions by writing her responses. She indicated that her assailant was
     driving a red, four-door car. Humble died in the hospital 30 days later.
¶4       On the day of the attack, defendant had attended a class in Peoria at the Center for
     Prevention of Abuse from 6 to 8 p.m. A member of the class testified that he saw defendant
     leave in a red car. At 4:30 a.m. the morning after the attack, defendant purchased a plane
     ticket to Costa Rica in cash and left the country. He had told his boss earlier that month that
     if he got into any legal trouble he would flee to Costa Rica due to their lenient extradition
     rules. Eighteen months after the attack, defendant was apprehended in Costa Rica and
     extradited to Illinois.
¶5       Defendant’s family helped him cover up the crime. The morning after the attack, an
     off-duty police officer saw defendant’s brother removing and burning the interior of the red
     car. Defendant’s family testified that the car was inoperable that day due to a blown engine,
     his brother was disassembling the car to sell it as scrap metal, and it was common for them to
     burn things on their property. Defendant’s mother testified that the whole Stoecker family
     had planned to move to Costa Rica in January 1996. They knew that moving to Costa Rica
     would be a violation of defendant’s parole, so he planned to leave after his weekly class so he
     had a week before the violation would be noticed. His family also testified that, on the day of
     the attack, defendant arrived home around 9 p.m. He was clean, and his demeanor was
     normal. His mother took him to the airport just after midnight.
¶6       The court sentenced defendant to concurrent terms of life and 30 years’ imprisonment.
     We affirmed his convictions and sentences on direct appeal. People v. Stoecker, No.
     3-98-0750 (1999) (unpublished order under Illinois Supreme Court Rule 23). Defendant then
     filed numerous unsuccessful postconviction petitions and petitions for relief from judgment.
     People v. Stoecker, 2015 IL App (3d) 140128-U; People v. Stoecker, 2014 IL 115756; People
     v. Stoecker, 2014 IL App (3d) 130389-U; People v. Stoecker, 2012 IL App (3d) 120183-U;
     People v. Stoecker, 384 Ill. App. 3d 289 (2008).


                                                -2-
¶7         In 2016, defendant filed another pro se petition for relief from judgment, which is the
       subject of this appeal. See 735 ILCS 5/2-1401 (West 2016). In the pro se petition, defendant
       contended that his sentence to life imprisonment was void under Apprendi v. New Jersey, 530
       U.S. 466 (2000), and because the circuit court did not explicitly state on the record the
       aggravating circumstances necessitating natural life imprisonment. He argued that Apprendi
       now applied retroactively to his case based on the United States Supreme Court cases of
       Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), and Welch v. United States,
       578 U.S. ___, 136 S. Ct. 1257 (2016). He further contended that he acted diligently in
       bringing his petition because he did “did not learn of the retroactivity of Johnson and Welch
       until June 2016, from a Jailhouse Lawyer.”
¶8         On November 14, 2016, the State filed a motion to dismiss the petition, alleging that
       defendant’s petition was not timely filed, as it was filed 16 years after judgment was entered
       and defendant did not provide a reasonable explanation for such delay. Moreover, the State
       said that the issues defendant sought to raise had previously been litigated. Appointed
       counsel was served with the motion to dismiss but filed no response. On November 18, 2016,
       the court held a hearing on the motion to dismiss. There is no indication in the record that
       appointed counsel received notice of the hearing. The State was the only party present at the
       hearing. The court stated that defendant’s presence was not required. The court did not
       reference appointed counsel at the hearing. The court dismissed the petition at the hearing,
       stating: “[T]he Court finds the People’s motion and memorandum persuasive and correct as a
       matter of law.” Defendant filed a pro se motion to reconsider, alleging, inter alia, that he was
       not given the opportunity to respond to the motion since the hearing was held only four days
       after the motion to dismiss was filed. Appointed counsel did not file any postjudgment
       motions. The court did not hold a hearing on defendant’s motion to reconsider; instead, the
       court issued a written order denying the motion.

¶9                                           II. ANALYSIS
¶ 10       On appeal, defendant argues (1) that his due process rights were violated where the court
       granted the motion to dismiss without giving defendant a meaningful opportunity to respond
       and the court held an ex parte hearing on the motion with only the State present and (2) that
       appointed counsel inadequately represented defendant where he failed to file, appear, or
       provide any representation to defendant. We find that, even accepting defendant’s argument
       that his due process rights were violated, any such violation would be harmless error, as the
       deficiencies in the petition could not be cured by remand. As the deficiencies in the petition
       could not be cured, defense counsel acted appropriately in this situation.
¶ 11       “We review de novo a claim asserting the denial of due process (People v. Bradley, 2017
       IL App (4th) 150527, ¶ 13), as we do the dismissal of a section 2-1401 petition (People v.
       Vincent, 226 Ill. 2d 1, 18 (2007)).” People v. Rucker, 2018 IL App (2d) 150855, ¶ 16. The
       constitutional right to procedural due process entitles an individual to “the opportunity to be
       heard at a meaningful time and in a meaningful manner.” In re D.W., 214 Ill. 2d 289, 316
       (2005). “[T]he fundamental right to the opportunity to be heard ‘ “has little reality or worth
       unless one is informed that the matter is pending.” ’ ” Rucker, 2018 IL App (2d) 150855,
       ¶ 17 (quoting BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 28, quoting
       Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). However,


                                                  -3-
                   “ ‘[a]utomatic reversal is only required where an error is deemed “structural,” i.e.,
               a systemic error which serves to “erode the integrity of the judicial process and
               undermine the fairness of the defendant’s trial.” ’ People v. Glasper, 234 Ill. 2d 173,
               197-98 (2009) (quoting People v. Herron, 215 Ill. 2d 167, 186 (2005)). *** “[M]ost
               errors of constitutional dimension are subject to a harmless error analysis. Only those
               constitutional violations that are ‘structural defects in the constitution of the trial
               mechanism,’ such as total deprivation of the right to trial counsel or absence of an
               impartial trier of fact, are per se error that necessitate remandment for a new
               proceeding.” People v. Shaw, 186 Ill. 2d 301, 344-45 (1999) (quoting Arizona v.
               Fulminante, 499 U.S. 279, 309 (1991)).’ ” People v. Sheley, 2017 IL App (3d)
               140659, ¶ 16.
       “Harmless-error analysis is ‘based on the notion that a defendant’s interest in an error-free
       trial must be balanced against societal interests in finality and judicial economy.’ ” People v.
       Mullins, 242 Ill. 2d 1, 23 (2011) (quoting People v. Simms, 121 Ill. 2d 259, 275-76 (1988)).
       When conducting harmless error analysis, we determine whether the outcome would have
       been the same regardless of the error. See id. We determine harmless error based on the
       particular facts of each case, considering the record as a whole. People v. Howard, 147 Ill. 2d
       103, 148 (1991).
¶ 12        Even if we were to accept defendant’s argument that his due process rights were violated,
       we find that any error in failing to allow defendant to respond to the State’s motion to
       dismiss his petition does not rise to the level of structural error and is, therefore, subject to
       harmless error analysis. Defendant’s petition is without merit. All of the issues raised could
       have been raised on one of his previous six appeals. In fact, he previously challenged his
       sentence, including raising an Apprendi issue. See Stoecker, 2014 IL App (3d) 130389-U.
       Moreover, defendant filed his petition more than 16 years after the deadline for filing a
       section 2-1401 petition. His reason for the delay was that he did not find out that Johnson,
       576 U.S. ___, 135 S. Ct. 2551, and Welch, 578 U.S. ___, 136 S. Ct. 1257, were retroactive
       until June 2016. The retroactivity of Johnson and Welch have no applicability to defendant’s
       case. As we stated in his previous appeal, “the rule established in Apprendi does not apply
       retroactively to cases whose direct appeals were exhausted prior to Apprendi being decided.”
       Stoecker, 2014 IL App (3d) 130389-U, ¶ 16 (citing People v. De La Paz, 204 Ill. 2d 426
       (2003)). We do not find that failing to reverse this case where defendant has already had six
       bites at the apple would “erode the integrity of the judicial process and undermine the
       fairness of the defendant’s trial.” People v. Herron, 215 Ill. 2d 167, 186 (2005). Enough
       judicial resources have already been wasted on another meritless collateral pleading filed by
       defendant. Moreover, defendant has previously fled to Costa Rica to elude authorities in this
       case. See Stoecker, No. 3-98-0750.
¶ 13        Defendant cites the Fourth District case of People v. Bradley, 2017 IL App (4th) 150527,
       ¶ 21, and the Second District case of Rucker, 2018 IL App (2d) 150855, for the proposition
       that failing to give defendant the opportunity to respond to the State’s motion to dismiss is
       inherently prejudicial and undermines the integrity of the judicial process. We note that the
       Fourth District in Bradley held that “the trial court’s failure to give defendant an opportunity
       to respond to the State’s motion to dismiss was inherently prejudicial and undermined the
       integrity of the proceedings.” Bradley, 2017 IL App (4th) 150527, ¶ 21. However, the Fourth
       District has subsequently done exactly what we do here, in similar situations. See People v.


                                                   -4-
       Lofton, 2018 IL App (4th) 150743-U (finding that, although circuit court dismissed the
       defendant’s section 2-1401 petition two days after the State filed its motion to dismiss, any
       error was harmless where the defendant had previously filed one section 2-1401 petition and
       three postconviction petitions and the petition was meritless); People v. Harris, 2018 IL App
       (4th) 160242-U (likewise finding any error in not allowing the defendant a meaningful
       opportunity to respond harmless where the petition was meritless and the defendant had
       previously had six bites at the apple).1 Moreover, while the Second District in Rucker noted
       that the defendant made an argument based off of this holding in Bradley, it only held that
       failing to allow the defendant to respond amounted to a due process violation. See Rucker,
       2018 IL App (2d) 150855, ¶¶ 25-26. The court never held that such a violation would be
       inherently prejudicial and undermine the judicial process. Further, there is no indication that
       the defendants in Bradley and Rucker had amassed such a large number of meritless
       collateral challenges to their convictions or sentences. We find those cases distinguishable on
       that fact alone.
¶ 14        Defendant further argues that his appointed counsel provided inadequate representation
       where he failed to appear, file, or provide any representation to defendant. At the outset, we
       note that in People v. Walker, 2018 IL App (3d) 150527, ¶ 24, this court discussed the lack of
       clarity regarding the level of assistance required by appointed counsel in a section 2-1401
       proceeding. The Walker court noted that in Tedder v. Fairman, 92 Ill. 2d 216, 226-27 (1982),
       “the supreme court held that although indigent criminal defendants may receive appointed
       counsel to represent them in civil actions, appointed counsel is not required in such civil
       proceedings. The Tedder court stated that the level of assistance required for appointed
       counsel in such instances is to exercise due diligence.” Walker, 2018 IL App (3d) 150527,
       ¶ 25. The Walker court noted that, subsequently, the supreme court in People v. Pinkonsly,
       207 Ill. 2d 555, 568 (2003), held that it was inappropriate to hold appointed counsel in
       section 2-1401 proceedings to the ineffective assistance of counsel standard set forth in
       Strickland v. Washington, 466 U.S. 668 (1984). Walker, 2018 IL App (3d) 150527, ¶ 26. The
       court noted that our supreme court had stated that, “ ‘[a]ssuming that the defendant was
       entitled to the same level of assistance on his section 2-1401 petition as on a postconviction
       petition, the defendant did not receive unreasonable assistance.’ ” Id. ¶ 27 (quoting
       Pinkonsly, 207 Ill. 2d at 568). The court in Walker surmised that, since in Pinkonsly the
       parties had not asked the supreme court to decide whether the reasonable assistance standard
       applied to attorneys appointed in section 2-1401 proceedings, this was arguably dicta. Id.
       After Pinkonsly, this court issued an opinion in People v. Welch, 392 Ill. App. 3d 948, 952
       (2009), which also “assume[d] that a section 2-1401 petitioner is entitled to the same level of
       assistance as a postconviction petitioner,” though the parties did not raise an issue with the
       level of assistance in this situation. See Walker, 2018 IL App (3d) 150527, ¶ 28. The Walker
       court stated, “Although our consideration of the above cases would persuade us to find that a
       section 2-1401 petitioner who is appointed counsel is entitled to reasonable assistance, we
       need not reach this issue. As we will discuss below, we find that appointed counsel failed to
       provide adequate assistance under either standard (reasonable assistance or due diligence).”
       Id. ¶ 29.
          1
           We acknowledge that unpublished decisions do not serve as authority for our decision. We
       mention them only to point out that we are not the first court to apply common sense to the issue at
       hand.

                                                    -5-
¶ 15       Like Walker, we do not need to determine which standard of assistance applies here
       because under either standard, appointed counsel’s performance was adequate. Under the
       reasonable assistance standard counsel has “an obligation to ensure that any existing claims
       are properly presented to the court.” Id. ¶ 31. “[D]ue diligence require[s] appointed counsel
       to perform the tasks assigned by the court. [Citation.] In Tedder, that meant amending
       defendant’s pro se petition, which the court told counsel was inadequate.” Id. ¶ 36. Here,
       counsel could not cure the defects in defendant’s petition. Therefore, under either of these
       standards, counsel adequately represented defendant.
¶ 16       Even if we were to impute the stricter ineffective assistance of counsel standard on
       counsel’s performance, defendant still would not prevail. In order to prevail on a claim of
       ineffective assistance of counsel, a defendant must show both that counsel’s performance
       was deficient and that the deficient performance prejudiced defendant. Strickland, 466 U.S.
       at 687. Because a defendant must satisfy both prongs of the Strickland test to prevail, the
       failure to establish either precludes a finding of ineffective assistance of counsel. People v.
       Henderson, 2013 IL 114040, ¶ 11. Defendant cannot show that he was prejudiced by
       counsel’s allegedly deficient performance. All of the issues either could have been raised or
       were previously raised and, therefore, were barred by res judicata. Moreover, defendant
       could not have shown that he acted diligently in filing the petition outside of the requisite
       time frame.
¶ 17       We recognize the due process concerns inherent in the trial court’s handling of this
       matter. However, the facts of this case call for us to affirm. Defendant has shown himself to
       be not only a very dangerous man but also one who, with the help of his family, will flee the
       jurisdiction. We find that to return defendant to the circuit court for a hearing he cannot win
       would needlessly expose both law enforcement and the public in general to an unreasonable
       risk.

¶ 18                                     III. CONCLUSION
¶ 19      For the foregoing reasons, we affirm the judgment of the circuit court of Stark County.

¶ 20      Affirmed.

¶ 21       JUSTICE LYTTON, dissenting:
¶ 22       The majority upholds the dismissal of defendant’s petition for relief from judgment,
       finding that (1) any potential error in failing to give defendant the opportunity to respond to
       the motion to dismiss was harmless error, and (2) counsel’s performance was adequate. I
       address each point in turn.
¶ 23       With regard to the first issue, the majority merely concludes that any potential error
       resulting from the court’s failure to give defendant 21 days to respond to the motion to
       dismiss is harmless. Significantly, the majority does not answer the specific question as to
       whether any error actually occurred. Relying upon the holdings in Bradley, 2017 IL App
       (4th) 150527, and Rucker, 2018 IL App (2d) 150855, I address and answer this specific
       question in the affirmative.
¶ 24       In Bradley, the circuit court granted the State’s motion to dismiss the defendant’s pro se
       section 2-1401 petition a mere two days after the State had filed it, before the defendant had a


                                                  -6-
       chance to respond. Bradley, 2017 IL App (4th) 150527, ¶ 19. In Rucker, the State filed a
       motion to dismiss the defendant’s pro se section 2-1401 petition. Rucker, 2018 IL App (2d)
       150855, ¶ 8. The court held a hearing on the motion the same day it was filed, stating that the
       defendant did not need to be brought to court. Id. In both cases, the courts held that it violates
       due process “to grant a motion to dismiss a complaint without allowing the opposing party
       notice and a meaningful opportunity to be heard.” Bradley, 2017 IL App (4th) 150527, ¶ 16;
       Rucker, 2018 IL App (2d) 150855, ¶ 30. Here, the court held a hearing on the State’s motion
       to dismiss only four days after the motion was filed. Like Bradley and Rucker, defendant was
       not given a meaningful opportunity to respond to the motion. Moreover, defendant was
       represented by counsel. The record does not show that counsel was given notice of the
       hearing, and the hearing was held without defendant or counsel being present. Therefore, I
       would expressly find that defendant’s due process rights were violated. Ultimately, however,
       I agree with the majority’s conclusion that the failure to give defendant 21 days to respond to
       the State’s motion to dismiss was harmless.2 I, therefore, concur in that portion of the
       analysis.
¶ 25       I dissent, however, on the alternative issue—whether counsel’s performance was
       adequate. I believe that under either the reasonable assistance standard or the due diligence
       standard, counsel’s failure to appear, file, or provide any representation to defendant
       amounted to inadequate counsel. In this case, the record does not show that appointed
       counsel provided any actual representation to defendant. He did not show up in court (though
       the record does not show that he received notice of the hearing on the motion to dismiss), he
       did not amend defendant’s pro se section 2-1401 petition, he did not amend defendant’s
       pro se motion for reconsideration, he did not file any postjudgment motions, nor does the
       record show that he spoke to defendant. In my opinion, the failure to provide any actual
       representation to defendant amounted to inadequate performance under either the reasonable
       assistance or due diligence standards. Moreover, the majority conjectures that defendant
       would not be able to show prejudice under the ineffective assistance of counsel standard. Our
       supreme court has specifically held that the Strickland standard does not apply to section
       2-1401 proceedings. See Pinkonsly, 207 Ill. 2d at 568. This discussion of prejudice has no
       bearing on the adequacy of counsel here. I would vacate the judgment dismissing defendant’s
       petition and remand for new section 2-1401 proceedings with new counsel.
¶ 26       I would be remiss if I did not note that whether defendant is “a very dangerous man” or
       “will flee the jurisdiction” (supra ¶ 17) has no bearing on the legal issues presented on
       appeal. Moreover, the section 2-1401 proceeding at issue in the circuit court could be
       accomplished without defendant present, as he had appointed counsel.




           2
            In doing so, I note that the majority cites two unpublished Fourth District cases that apply harmless
       error in a similar scenario. It does not appear that there are any published cases that do so. Therefore, we
       have no actual authority contradicting the holding in Bradley that the failure to give a defendant an
       opportunity to respond to the State’s motion to dismiss is inherently prejudicial. See Bradley, 2017 IL
       App (4th) 150527, ¶ 21.

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