                                        2019 IL App (3d) 170374

                                 Opinion filed July 10, 2019
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 12th Judicial Circuit,
                                                     )      Will County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )      Appeal No. 3-17-0374
            v.                                       )      Circuit No. 16-CF-767
                                                     )
     ERIC D. WALKER,                                 )      Honorable
                                                     )      Daniel L. Kennedy,
            Defendant-Appellant.                     )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices Carter and Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendant, Eric D. Walker, pled guilty to aggravated battery and was subsequently

     sentenced to a term of three years’ imprisonment. He filed a pro se postconviction petition

     alleging, inter alia, that defense counsel had been ineffective for failing to share and discuss

     discovery documents with him. The trial court dismissed the petition as frivolous and patently

     without merit. On appeal, defendant argues that the dismissal was erroneous. We affirm.

¶2                                         I. BACKGROUND

¶3          On April 14, 2016, the State charged defendant with aggravated battery (720 ILCS 5/12-

     3.05(f)(1) (West 2016)). The indictment alleged that “defendant cut Jamella Martinez about the
     body with a knife.” The aggravated battery charge was given case No. 16-CF-767. The State

     would later amend the indictment, removing all references to a knife and instead alleging that

     defendant “struck” Martinez about the body “while on a public place of accommodation.” See id.

     § 12-3.05(c).

¶4          On April 27, 2016, the State charged defendant with burglary (id. § 19-1(a)-(b)). The

     indictment alleged that on February 15, 2016, defendant “knowingly entered a motor vehicle of

     Timothy Kable *** with the intent to commit therein a theft.” That charge was labeled case No.

     16-CF-864. The State amended this indictment as well, charging defendant instead with

     attempted burglary. See id. §§ 8-4, 19-1(a)-(b).

¶5          Defendant pled guilty to both charges at a single proceeding on September 29, 2016. As a

     factual basis for the aggravated battery charge, the State averred that defendant engaged in an

     argument with a number of people while at Fenton’s Motel and struck Martinez about the body.

     With respect to the attempted burglary charge, the State averred that defendant could be seen on

     surveillance video reaching into a vehicle that did not belong to him in the parking lot of a

     restaurant. The court accepted the plea and sentenced defendant to a term of three years’

     imprisonment for aggravated battery, to be served concurrently with the attempted burglary

     sentence imposed in case No. 16-CF-864.

¶6          On March 17, 2017, defendant filed a pro se postconviction petition. The petition raised

     numerous claims, many of which related to the representation defendant had received. In the

     petition, defendant alleged that his attorney, an assistant public defender, conspired against him

     with the State and intentionally misled and misrepresented him. Defendant also accused counsel

     of failing to file the motions he requested, failing to seek additional discovery, and refusing to

     speak to his witnesses.


                                                    -2-
¶7          Most relevant to the present appeal, defendant alleged that counsel refused “to allow the

     defendant to review the discovery and evidence against defendant.” He also alleged that counsel

     failed to communicate with him. Defendant concluded: “had Defendant known all that [sic] facts

     and information and discovery information among other things before Defendant [pled] guilty

     Defendant would not have [pled] guilty to any of these charges.”

¶8          Defendant alleged in his petition that on December 19, 2016, he received a number of

     partially redacted police reports relating to both of his cases. He alleged that upon reading those

     reports he learned that counsel “had been lying to the defendant all the time” and had induced

     him to plead guilty when she “knew that they had absolutely no evidence to support the

     allegations made against the defendant.” Defendant asserted that he had seen only a surveillance

     video and a police report in case No. 16-CF-864 and had seen no discovery materials in case No.

     16-CF-767. Defendant alleged that counsel told him the police had a cell phone in evidence in

     the attempted burglary case but that he later learned that was not true.

¶9          Defendant attached more than 100 pages of exhibits to his petition. These exhibits

     include a number of redacted police reports, largely relating to the attempted burglary case. Only

     one single-page report references the aggravated battery case. That report indicates that a female

     subject had been stabbed in her eye and a suspect had been found at Fenton’s Motel. Reports

     relating to the attempted burglary indicate that the incident was not reported to the police until

     February 22, 2016, after an altercation between defendant and Kable. Kable had accused

     defendant of taking a cell phone from his truck on February 15. Kable claimed to have a video

     depicting defendant taking the phone. Many of the exhibits attached to the petition are letters

     written by defendant to other parties, including counsel and the trial judge.




                                                     -3-
¶ 10          Defendant’s postconviction petition, as is evident from the above summary, related to

       both his aggravated battery and attempted burglary convictions. A substantively similar

       postconviction petition was filed in case No. 16-CF-864. On May 25, 2017, the trial court

       summarily dismissed both petitions in a single order. On June 8, 2017, defendant filed separate

       notices of appeal in each case.

¶ 11                                             II. ANALYSIS

¶ 12          On appeal, defendant argues that his petition presented an arguable constitutional claim

       of ineffective assistance of counsel due to counsel’s failure to show and discuss discovery

       materials with him. Accordingly, he argues that the trial court erred in dismissing his petition at

       the first stage. We review the trial court’s summary dismissal of defendant’s pro se

       postconviction petition de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010).

¶ 13          The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) sets out

       a three-stage proceeding in which a criminal defendant may assert that his conviction resulted

       from a substantial denial of his rights under the United States Constitution, the Illinois

       Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). 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. Edwards, 197 Ill. 2d 239, 244 (2001). A defendant need only allege

       sufficient facts to state the “gist” of a constitutional claim in order for his petition to be

       forwarded to the second stage. Hodges, 234 Ill. 2d at 9. The Act also requires that a defendant

       attach evidence supporting his allegations or explain why such evidence is not attached. 725

       ILCS 5/122-2 (West 2016). “[A] defendant’s failure to either (1) attach ‘the necessary

       “affidavits, records, or other evidence” ’ supporting the petition[’s] allegations or (2) explain

       their absence will itself justify the petition’s summary dismissal.” People v. Harris, 366 Ill. App.


                                                      -4-
       3d 1161, 1167 (2006) (quoting People v. Collins, 202 Ill. 2d 59, 66 (2002), quoting 725 ILCS

       5/122-2 (West 2000)).

¶ 14           The first stage of postconviction proceedings “presents a ‘low threshold’ [citation],

       requiring only that the petitioner plead sufficient facts to assert an arguably constitutional claim.”

       Brown, 236 Ill. 2d at 184 (quoting People v. Jones, 211 Ill. 2d 140, 144 (2004)). The trial court

       must summarily dismiss a postconviction petition at the first stage of proceedings if the petition

       is frivolous or patently without merit. Id. A petition is frivolous or patently without merit if it

       “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16. “A petition which lacks

       an arguable basis either in law or in fact is one which is based on an indisputably meritless legal

       theory or a fanciful factual allegation.” Id.

¶ 15           To ultimately prevail on a claim of ineffective assistance of counsel, a defendant must

       show that counsel’s performance was objectively unreasonable and that there is a “reasonable

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

       been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In determining whether

       counsel’s performance was unreasonable, there is a “strong presumption that the challenged

       action or inaction of counsel was the product of sound trial strategy and not of incompetence.”

       People v. Coleman, 183 Ill. 2d 366, 397 (1998). Of course, a defendant need not outright prove

       ineffective assistance at the first stage of postconviction proceedings. At this stage, “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.

¶ 16           The State posits that a defendant has no independent right to review discovery materials

       and that counsel’s refusal to allow a defendant to review those materials may not provide the


                                                       -5-
       basis for an ineffectiveness claim. In support, the State cites a pair of cases from the Fourth

       District, People v. Savage, 361 Ill. App. 3d 750 (2005), and People v. Davison, 292 Ill. App. 3d

       981 (1997). In Savage, the court wrote: “[A] defendant does not have a constitutional right to

       read discovery materials and an attorney’s decision as to whether to provide his or her client with

       such materials is a matter of trial strategy and is within counsel’s discretion.” Savage, 361 Ill.

       App. 3d at 757. In Davison, the court listed a number of reasons that counsel might wish to

       restrict a defendant’s access to discovery materials. Davison, 292 Ill. App. 3d at 989.

¶ 17          Defendant, in turn, argues that counsel must have a duty to disclose or discuss at least

       certain discovery materials. Defendant implicitly concedes that counsel does not have a duty to

       show a defendant all discovery materials but insists that counsel must nevertheless show a

       defendant—or at least discuss with a defendant—evidence that is particularly relevant to the

       decision to plead guilty.

¶ 18          In essence, both parties are correct. Decisions regarding which items received in

       discovery that a defense attorney chooses to share with or discuss with his or her client is a

       matter of trial strategy. Savage, 361 Ill. App. 3d at 757. As such, that decision is afforded a

       strong presumption that it was the product of sound trial strategy rather than incompetence.

       Coleman, 183 Ill. 2d at 397. That presumption, however, is rebuttable. People v. Peterson, 2017

       IL 120331, ¶ 80 (“[T]he strong presumption that counsel’s strategy was sound may be overcome

       where counsel’s decisions appear to be so irrational that no reasonably effective defense attorney

       in similar circumstances would pursue such a strategy.”). In the present context, a defendant may

       be able to rebut that presumption by showing that counsel withheld discovery information that

       cast doubt on the State’s ability to prove him guilty or was otherwise particularly relevant to his

       decision to plead guilty.


                                                      -6-
¶ 19          That was, in fact, one of the many theses of defendant’s postconviction petition. He

       alleged that on December 19, 2016—nearly three months after his guilty plea—he received a

       number of police reports related to both of his convictions. According to defendant, after reading

       these reports, he learned that counsel had been untruthful regarding the State’s case and the State

       actually “had absolutely no evidence to support the allegations made against” him.

¶ 20          With respect to his conviction for aggravated battery—the only conviction at issue in this

       appeal—however, defendant did not attach to his petition any documentation “supporting its

       allegations.” 725 ILCS 5/122-2 (West 2016). While defendant did attach copious exhibits to his

       petition, only a single-page police report related to the aggravated battery conviction. That report

       was a brief summary of an attack on a female subject, fully consistent with the factual basis

       provided by the State at defendant’s guilty plea hearing. The report actually serves to undermine

       defendant’s claim that he would not have pled guilty had he seen the report, as it contains no

       information not already present in the record and thus already available to defendant. Relatedly,

       it provides no basis for arguing that counsel’s purported decision not to disclose the report to

       defendant was unsound or unreasonable.

¶ 21          While defendant’s documentation actually undermines his claim of ineffective assistance

       of counsel, no factual allegations in the petition serve to salvage the claim. Defendant did not

       allege what new information he learned from the police reports with respect to his aggravated

       battery conviction. He also failed to allege what information had been withheld from him by

       counsel. Neither the factual allegations in the petition nor the documents attached to the petition

       create a basis for arguing that counsel’s performance fell below an objective standard of

       reasonableness. Accordingly, we find that the trial court properly dismissed defendant’s petition

       at the first stage of proceedings.


                                                      -7-
¶ 22                                  III. CONCLUSION

¶ 23   The judgment of the circuit court of Will County is affirmed.

¶ 24   Affirmed.




                                              -8-
                                  No. 3-17-0374


Cite as:                 People v. Walker, 2019 IL App (3d) 170374


Decision Under Review:   Appeal from the Circuit Court of Will County, No. 16-CF-767;
                         the Hon. Daniel L. Kennedy, Judge, presiding.


Attorneys                James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed,
for                      of State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for                      Thomas D. Arado, and Stephanie L. Raymond, of State’s
Appellee:                Attorneys Appellate Prosecutor’s Office, of counsel), for the
                         People.




                                       -9-
