                                      2018 IL App (1st) 160509

                                            No. 1-16-0509

                                   Opinion filed December 27, 2018 


                                                                           FOURTH DIVISION

                                                IN THE


                                  APPELLATE COURT OF ILLINOIS


                                           FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                     )       Appeal from the Circuit Court
     ILLINOIS,                                      )       of Cook County.
                                                    )
          Respondent-Appellee,                      )
                                                    )
          v.                                        )       No. 05 CR 18000
                                                    )
     BRIAN WALKER,                                  )       The Honorable
                                                    )       Thomas V. Gainer, Jr.,
          Petitioner-Appellant.                     )       Judge, presiding.



               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
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        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                                          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


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          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 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.




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¶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


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       No. 1-16-0509


          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.

¶ 14                                             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                               I. 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);


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           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


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        No. 1-16-0509


           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 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 (citing Pendleton,

           223 Ill. 2d at 473 ) (second-stage dismissal). 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,


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          ¶ 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                                II. 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


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          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.

¶ 29                               III. 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


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          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”).



             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).

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       No. 1-16-0509


¶ 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, 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


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          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                                          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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