                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Wright, 2013 IL App (4th) 110822




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    KYLE L. WRIGHT, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0822


Filed                      April 17, 2013
Rehearing denied           May 22, 2013


Held                       The decision in defendant’s direct appeal from his conviction for first
(Note: This syllabus       degree murder collaterally estopped him from asserting in his
constitutes no part of     postconviction petition that his trial and appellate counsel were
the opinion of the court   ineffective in failing to argue that the trial court improperly considered
but has been prepared      the harm to the victim as an aggravating factor at the sentencing hearing,
by the Reporter of         since the appellate court decided in the direct appeal that the reference to
Decisions for the          the improper aggravating factor at the sentencing hearing was not plain
convenience of the         error, and, therefore, defendant’s counsel could not have been ineffective.
reader.)


Decision Under             Appeal from the Circuit Court of Macon County, No. 07-CF-824; the
Review                     Hon. Katherine M. McCarthy, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Peter A. Carusona and Jay Wiegman, both of State Appellate
                           Defender’s Office, of Ottowa, for appellant.

                           Jack Ahola, State’s Attorney, of Decatur (Patrick Delfino, Robert J.
                           Biderman, and Anastacia R. Brooks, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Knecht concurred in the
                           judgment and opinion.




                                            OPINION

¶1          Defendant, Kyle L. Wright, who is serving a 55-year term of imprisonment for first
        degree murder (720 ILCS 5/9-1(a)(1) (West 2006)), appeals from the summary dismissal of
        his postconviction petition. He makes several claims in his petition, but the only claims he
        pursues in this appeal are those of ineffective assistance of counsel. We conclude that our
        previous decision, on direct appeal, collaterally estops defendant from making his claims of
        ineffective assistance. Therefore, we affirm the trial court’s judgment.

¶2                                       I. BACKGROUND
¶3          In the jury trial, which occurred in March 2008, the evidence tended to show the
        following. On June 2, 2007, defendant was driving in Decatur, and Ebony Oldham was one
        of his passengers. Defendant was angry with Robert May for selling him $800 of fake
        cocaine. May was standing beside Derrick Matthews and Ricky Johnson in the 800 block of
        West Macon Street. According to Oldham and the other passengers in defendant’s car,
        defendant stopped the car, pulled out a pistol, and fired three rounds through the open front
        passenger window. One of the bullets hit Matthews in the head, killing him. May and
        Johnson were uninjured. The other two bullets struck a nearby house.
¶4          The jury found defendant guilty of the first degree murder of Matthews. The jury also
        answered yes to the question of whether the State had proved, beyond a reasonable doubt,
        that defendant had personally discharged a firearm and thereby had proximately caused the
        death of Matthews.
¶5          The trial court held a sentencing hearing in April 2008. In the sentencing hearing, the
        State called Emma Matthews, the mother of the murder victim. She testified her deceased
        son had two daughters, aged four and six, to whom he had been devoted, visiting them every

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       day and taking them to school. He also had been close to his sister. Defendant’s sister, his
       children, and the mother of his children all would miss him greatly, Matthews said.
¶6         The State next called James Addison. He testified he lived at 876 West Macon Street and
       that on June 2, 2007, he was sitting in his living room, the room closest to the street,
       watching television with a friend, when a bullet flew by him, about an inch from his head,
       and “exploded” in the wall. Particles from the wall struck him.
¶7         The State next called David Pruitt, a Decatur police officer, who identified an audio
       recording of a telephone call defendant had made from the Macon County jail to an
       eyewitness, Oldham. The State played the recording for the trial court. The court remarked
       that the recording was difficult to follow but that defendant appeared to be asking Oldham
       to leave town.
¶8         Defendant made a statement in allocution, which really was not a statement in allocution
       so much as a declaration of his innocence and a complaint about his lack of opportunity to
       read the police reports and other discovery materials.
¶9         The trial court recited the following circumstances as factors in aggravation: the
       telephone call defendant had made from jail to Oldham requesting her to leave town (but
       because the recording or the conversation in the recording was unclear, the court said it was
       not giving this factor much weight), his previous violation of probation, his prior Class 4
       felony conviction and several misdemeanor convictions, his history of drug activity, and his
       lack of work history. In addition, the court remarked: “For factors in aggravation[,] *** we
       certainly have conduct *** that caused serious harm and obvious death to the victim, Derrick
       Matthews.” The court also considered the imperilment of Addison and his guest as an
       aggravating factor. The court said:
               “But, then[,] we[ ] also[ ] have [the facts that] defendant’s conduct did threaten
           serious harm. Doesn’t have to cause serious harm. The [s]tatute reads, ‘threatened serious
           harm.’
               Here, we have a drive-by shooting, three bullets or three shots from a car ***.
               *** [W]e heard from Mr. Addison[,] [who was] an innocent bystander,
           so[ ]to[ ]speak, but not just a bystander. He’s sitting in his house, sitting on the couch
           watching TV, and a bullet whizzes by his ear, explodes in the wall. *** [L]uckily, [he
           was] not hurt. *** [L]uckily, [he was] not killed. But[ ] did it threaten serious harm?
           Certainly, it did. *** [S]o, the [c]ourt has considered *** his testimony as evidence in
           *** aggravation as well.”
¶ 10       The trial court found only one factor in mitigation. The court said: “We certainly have
       the defendant’s age, 21 years old. *** [W]e hope that a person of that age has *** the
       opportunity to be rehabilitated.”
¶ 11       The trial court sentenced defendant to imprisonment for 55 years for first degree murder.
       That sentence reflected a 30-year term for murder plus a 25-year enhancement for the
       discharge of a firearm. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006). (Without the
       enhancement, first degree murder was punishable by imprisonment for not less than 20 years
       and not more than 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West 2006).)


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¶ 12       Defendant took a direct appeal. In addition to challenging jury instruction (People v.
       Wright, No. 4-08-0472, slip order at 10 (Aug. 20, 2009) (unpublished order under Supreme
       Court Rule 23)), he argued the trial court had erred by considering two circumstances as
       aggravating factors in the sentencing hearing: (1) the severe harm he had caused the murder
       victim, Matthews, and (2) the severe harm he almost had caused to the man watching
       television in his living room, Addison (id. at 12). These factors, he argued, were already
       implicit in the offense of first degree murder and hence were not legitimate aggravating
       factors. Id.
¶ 13       Defendant acknowledged that, because his trial counsel never raised this issue in a
       motion for a reduction of the sentence, the issue normally would be forfeited. Id.
       Nevertheless, on the authority of People v. Martin, 119 Ill. 2d 453, 458 (1988), he requested
       us to review the issue as plain error. Wright, slip order at 12-13. We concluded that the
       endangerment of Addison was a legitimate aggravating factor and that consideration of that
       factor was therefore not error at all. Id. at 13. As for the harm to Matthews, we agreed that
       consideration of that factor was erroneous, but we did not find it to be plain error. Id. at 13.
       We reasoned:
                “The jury could have found that defendant intended to shoot May, in which case the
           bullet whizzing by Addison in his living room was not inherent to the felony murder of
           Matthews. Nor was the endangerment of Richards inherent to the felony murder
           (Richards was the other man standing beside May). In Martin, 119 Ill. 2d at 458, 519
           N.E.2d at 886, the evidence in the sentencing hearing ‘was not [only] closely balanced,
           [but] it strongly favored leniency for the defendant.’ In the present case, the evidence in
           the sentencing hearing was not closely balanced, and it does not strongly favor leniency.
           Driving down West Macon Street, defendant had to see the houses lining the sides of the
           street. He had to see Richards standing beside May. Nevertheless, defendant drew his
           pistol, pointed it in the direction of Addison’s house and Richards, and squeezed off not
           one but three rounds. He had no quarrel with Addison or Richards; it is just that their
           lives were insignificant to him, and if they happened to be in the way of his wrath, so be
           it. The court could punish defendant for his indifference to human life. We do not find
           that the court’s passing reference to the harm inflicted upon Matthews put the judicial
           system in disrepute (see People v. Hampton, 149 Ill. 2d 71, 102, 594 N.E.2d 291, 305
           (1992)) or deprived defendant of a fair sentencing hearing (see People v. Hall, 195 Ill.
           2d 1, 18, 743 N.E.2d 126, 136 (2000)). The plain-error doctrine will not rescue defendant
           from the procedural forfeiture.
                Seemingly as an afterthought, defendant accuses his trial counsel, in one sentence,
           of ineffective assistance for failing to object to improper aggravating factors. This
           assertion is too cursory to qualify as an argument. The element of prejudice is far from
           self-evident. See People v. Nieves, 192 Ill. 2d 487, 503, 737 N.E.2d 150, 158-59 (2000).”
           Id. at 13-14.
¶ 14       Therefore, on direct appeal, we affirmed the trial court’s judgment (we found no merit
       in the challenge to the jury instruction, either). Id. at 14. The supreme court denied leave to
       appeal. People v. Wright, 234 Ill. 2d 550 (2009) (table).


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¶ 15       On August 12, 2011, defendant filed a postconviction petition. Two of his claims were
       that (1) his trial counsel had provided ineffective assistance by failing to preserve the trial
       court’s error of considering invalid aggravating factors and (2) his counsel on direct appeal
       had provided ineffective assistance by failing to raise all the claims that defendant now was
       raising in his postconviction petition.
¶ 16       On August 30, 2011, the trial court summarily dismissed the postconviction petition as
       “frivolous” and “patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). In the
       dismissal order, the trial court gave four reasons for its decision. First, the court found the
       petition to be untimely, because defendant had filed it more than three years after his
       conviction. See 725 ILCS 5/122-1(c) (West 2010). Second, the petition was unverified. See
       725 ILCS 5/122-1(b) (West 2010). Third, the petition had no supporting affidavits attached
       to it. See 725 ILCS 5/122-2 (West 2010). Fourth (a reason alternative to the first three
       reasons), defendant had “failed to make the requisite showing of either deficient performance
       or sufficient prejudice to his defense in this claim for ineffective assistance of either trial or
       appellate counsel.”
¶ 17       This appeal followed.

¶ 18                                        II. ANALYSIS
¶ 19                                 A. Our Standard of Review
¶ 20       Section 122-2.1(a) of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a) (West
       2010)) says that, within 90 days after the filing and docketing of a postconviction petition,
       the trial court shall examine the petition and shall enter an order pursuant to section 122-2.1
       (725 ILCS 5/122-2.1 (West 2010)). Subsection (a)(2) (725 ILCS 5/122-2.1(a)(2) (West
       2010)) says that, if the defendant has been sentenced to imprisonment and if the court
       determines that his or her petition is “frivolous or *** patently without merit,” the court
       “shall dismiss the petition in a written order, specifying the findings of fact and conclusions
       of law it made in reaching its decision.” This first stage in the postconviction proceeding
       “allows the circuit court to act strictly in an administrative capacity by screening out those
       petitions which are without legal substance or are obviously without merit.” (Internal
       quotation marks omitted.) People v. Tate, 2012 IL 112214, ¶ 9. If the court does not
       summarily dismiss the petition as “frivolous or *** patently without merit” within 90 days
       after the filing and docketing of the petition, “the court shall order the petition to be docketed
       for further consideration in accordance with Sections 122-4 through 122-6” (725 ILCS
       5/122-4 to 122-6 (West 2010)); that is, the petition advances to the second stage of the
       postconviction proceeding. 725 ILCS 5/122-2.1(b) (West 2010).
¶ 21       The Post-Conviction Hearing Act does not define the terms “frivolous” and “patently
       without merit,” but the supreme court has explained:
           “[A] pro se petition seeking postconviction relief under the Act may be summarily
           dismissed as ‘frivolous or *** patently without merit’ pursuant to section 122-2.1(a)(2)
           only if the petition has no arguable basis either in law or in fact. 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 fanciful factual allegation. An example of an indisputably

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             meritless legal theory is one which is completely contradicted by the record. [Citation.]
             Fanciful factual allegations include those which are fantastic or delusional.” People v.
             Hodges, 234 Ill. 2d 1, 16-17 (2009).
       The mere unlikelihood of a factual proposition does not make that proposition “fantastic or
       delusional,” for the unlikely can turn out to be true. (Internal quotation marks omitted.) Id.
       at 13 & n.5.
¶ 22         A trial court should not summarily dismiss a postconviction petition unless its lack of
       legal and factual merit is certain and indisputable. For example, if the petition claims
       ineffective assistance of counsel, the question, at the first stage of the postconviction
       proceeding, is not whether the defendant has “ ‘demonstrate[d]’ or ‘prove[d]’ ineffective
       assistance by ‘showing’ that counsel’s performance was deficient and that it prejudiced the
       defense.” Tate, 2012 IL 112214, ¶ 19. That is the burden the defendant must carry in the
       second stage of the postconviction proceeding, in which he or she must “make a substantial
       showing of a constitutional violation.” (Internal quotation marks omitted.) Id. In the first
       stage, by contrast, “[a] different, more lenient formulation applies” (id.): we apply not the
       Strickland test but the “ ‘arguable’ Strickland test”–and that qualifier “arguable” is crucial;
       it is not synonymous with “ultimately correct” (id. ¶ 20). “At the first stage of postconviction
       proceedings under the Act, 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.” (Emphases in
       original.) (Internal quotation marks omitted.) Id. ¶ 19.
¶ 23         We decide de novo whether the petition deserves to be summarily dismissed as legally
       and factually inarguable. Hodges, 234 Ill. 2d at 9. “[A] petition which is sufficient to avoid
       summary dismissal is simply one which is not frivolous or patently without merit.”
       (Emphasis in original.) Id. at 11.

¶ 24                     B. The Purported Untimeliness of the Petition and
                       Its Lack of Verification and of Supporting Affidavits
¶ 25        Defendant points out that neither the untimeliness of the postconviction petition (People
       v. Boclair, 202 Ill. 2d 89, 99 (2002)) nor its lack of a proper verification (People v. Terry,
       2012 IL App (4th) 100205, ¶ 23) is a legitimate ground for summarily dismissing the
       petition. As for the lack of supporting affidavits, he points out that affidavits are unnecessary
       if the record provides the necessary support for the claims in the postconviction petition. See
       People v. Hanks, 335 Ill. App. 3d 894, 899 (2002). The State does not appear to disagree
       with defendant thus far, and we find those points to be well taken.

¶ 26          C. The Preclusive Effect of Our Previous Finding of No Plain Error
¶ 27      On direct appeal, defendant argued the trial court erred in the sentencing hearing by
       considering two circumstances as aggravating factors: (1) the severe harm he caused to
       Matthews and (2) the severe harm he almost caused to Addison. Wright, slip order at 12.
       Defendant argued that the consideration of those two factors was erroneous because those


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       factors already were implicit in the offense of first degree murder. Id.
¶ 28        Because that issue, however, was not raised in the motion to reduce the sentence, we held
       the issue to be forfeited. Id. Defendant attempted to avert the forfeiture by invoking the
       doctrine of plain error. Id. at 12-13. We found that the trial court’s consideration of the
       second factor, the endangerment of Addison, was not error at all, let alone plain error,
       because endangering Addison was not inherent in murdering Matthews. Id. at 13. As for the
       first factor, causing harm to Matthews was inherent in the murder of Matthews. Nevertheless,
       for two reasons, we concluded that this error did not amount to plain error. First, “the
       evidence in the sentencing hearing was not closely balanced, and it [did] not strongly favor
       leniency.” Id. Second, “the court’s passing reference to the harm inflicted upon Matthews”
       did not “put the judicial system in disrepute” or “deprive[ ] defendant of a fair sentencing
       hearing.” Id. at 14.
¶ 29        The State now contends that, under the doctrine of the law of the case, our previous
       finding of no plain error should preclude defendant from arguing prejudice in the context of
       his claims of ineffective assistance. Actually, the doctrine of the law of the case is
       inapplicable because that doctrine bars relitigation of an issue already decided in the same
       case, whereas a postconviction proceeding is a case different from the direct appeal. See
       People v. Bannister, 378 Ill. App. 3d 19, 37 (2007).
¶ 30        Instead, the relevant doctrine is collateral estoppel. “Collateral estoppel, or issue
       preclusion, prevents relitigation of issues of law or fact that have previously been litigated
       and decided in an action involving the same parties or their privies.” In re Huron Consulting
       Group, Inc., 2012 IL App (1st) 103519, ¶ 22.
¶ 31        In the direct appeal, we decided an issue of law: we decided that the sentencing hearing
       was fair despite the trial court’s isolated mention of an invalid aggravating factor, i.e., the
       harm to the murder victim. Wright, slip order at 14. See also People v. Luna, 409 Ill. App.
       3d 45, 51 (2011) (“the trial court’s reference to the victim’s death was minimal,” and remand
       for resentencing was unnecessary). That finding collaterally estops defendant from arguing
       prejudice for purposes of a claim of ineffective assistance. See People v. Blair, 215 Ill. 2d
       427, 442 (2005) (“We *** conclude that the legislature intended that trial courts may
       summarily dismiss postconviction petitions based on *** res judicata ***.”); Huron, 2012
       IL App (1st) 103519, ¶ 22; Richter v. Village of Oak Brook, 2011 IL App (2d) 100114, ¶ 17
       (“Collateral estoppel is a branch of res judicata ***.”). Defendant could succeed in his claim
       of ineffective assistance of trial counsel only if the deficient performance by trial counsel
       caused him prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). And he
       suffered prejudice only if the deficient performance deprived him of a fair sentencing
       hearing. See id.; People v. Morgan, 187 Ill. 2d 500, 548 (1999); People v. Stanley, 246 Ill.
       App. 3d 393, 403 (1993). Because we held, on direct appeal, that the sentencing hearing was
       fair despite the brief mention of an invalid aggravating factor, defendant is collaterally
       estopped from claiming prejudice from trial counsel’s failure to preserve the error for review.
       It further follows that appellate counsel could not have been ineffective in omitting to fully
       brief an ultimately unmeritorious theory. See People v. Stephens, 2012 IL App (1st) 110296,
       ¶ 109.


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¶ 32       The trial court did not rely on the doctrine of collateral estoppel in its summary dismissal
       of the postconviction petition. Even so, we may affirm the summary dismissal on any basis
       that has support in the record. See People v. Dent, 408 Ill. App. 3d 650, 654-55 (2011);
       People v. Edgeston, 396 Ill. App. 3d 514, 522 (2009). Our conclusion, in the direct appeal,
       that the sentencing hearing was fair despite the mention of an invalid aggravating factor
       makes the claims of ineffective assistance of trial counsel and appellate counsel inarguable.

¶ 33                                   III. CONCLUSION
¶ 34      For the foregoing reasons, we affirm the trial court’s judgment, and we award the State
       $50 against defendant in costs.

¶ 35      Affirmed.




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