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                                                                        Date: 2018.09.25
                              Appellate Court                           11:13:02 -05'00'




                  People v. Stockton, 2018 IL App (2d) 160353



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           KATIE LIN STOCKTON, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-16-0353



Filed             July 20, 2018



Decision Under    Appeal from the Circuit Court of Winnebago County, No.
Review            09-CF-2414; the Hon. John R. Truitt, Judge, presiding.



Judgment          Affirmed.


Counsel on        James E. Chadd, Patricia Mysza, and Miriam Sierig, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,
                  David J. Robinson, and Steven A. Rodgers, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE SCHOSTOK delivered the judgment of the court, with
                  opinion.
                  Justices Zenoff and Jorgensen concurred in the judgment and opinion.
                                             OPINION

¶1        Defendant, Katie Lin Stockton, appeals from an order of the circuit court of Winnebago
     County summarily dismissing her petition under the Post-Conviction Hearing Act (Act) (725
     ILCS 5/122-1 et seq. (West 2016)) seeking relief from her conviction of first degree murder
     (720 ILCS 5/9-1(a)(2) (West 2004)). We affirm.
¶2        The victim of defendant’s crime was her newborn daughter. Defendant entered a
     nonnegotiated guilty plea and was sentenced to a 50-year prison term. The body of
     defendant’s daughter was discovered in December 2004 on property owned by defendant’s
     mother and stepfather. The child, who had been born alive, was wrapped in clothing and had
     been placed in a plastic bag. Either hypothermia or suffocation from the clothing or plastic
     had caused the child’s death. Evidence at defendant’s sentencing hearing established that she
     was questioned by police and that she denied that the child was hers. It was not until 2009
     that police obtained a DNA sample from defendant showing that she was the child’s mother.
     DNA testing showed that John Craig was the father. In the course of the investigation, police
     discovered the decomposed remains of two infants in bags in the trunk of defendant’s car.
     Genetic testing established that defendant was the mother of the two infants and that Craig
     was the father of one of them. Both were full term at birth, but it could not be determined
     whether they were born alive. Several witnesses testified that the bags in which the infants
     were found contained liquid from decomposition, as well as maggots and insects.
¶3        Winnebago County Coroner Elizabeth Fiduccia testified that she and the sheriff of
     Winnebago County gave the child found in 2004 the name Crystal. She explained that the
     child was found near Christmas on a crystal-clear night. They took the child’s handprints and
     footprints so that, when the child’s family was identified, they would have “something to
     hold onto because they knew this child was real and it would make it more real if they saw
     it.” Craig testified that defendant told him that she was carrying his child. She later told him
     that she had a miscarriage. When Craig learned that the child had been born alive, he named
     her Mariah Renee.
¶4        The State presented numerous photographs of (1) the child at the site where her body was
     discovered in 2004, (2) the child’s autopsy, (3) the child in an open casket with stuffed
     animals, (4) the child’s headstone, and (5) the decomposed remains of the infants later found
     in the trunk of defendant’s car. The State introduced evidence that there were places such as
     hospitals, police stations, and fire stations where defendant could have left a newborn
     without fear of punishment.
¶5        According to the presentence investigation report, defendant had been convicted of
     forgery in 2008 and was sentenced to probation. In addition, the State presented evidence that
     defendant had been dismissed from a job due to suspicion that she was stealing money from
     her employer.
¶6        Defendant’s mother, Lisa Landsee, testified for defendant. According to Landsee,
     defendant had a son when she was in her early twenties. In 2004 or 2005, Landsee suspected
     that defendant was abusing drugs and alcohol. In 2008, defendant was incarcerated. After her
     release, defendant lived with Landsee. Defendant helped around the house, took care of her
     son, and had three jobs. In her statement in allocution, defendant apologized for what she had
     done and asked for forgiveness.


                                                -2-
¶7         In imposing sentence, the trial court noted that there was no evidence that the children
       whose remains were found in the trunk of defendant’s car had been born alive. Accordingly,
       the court stated that it would not consider the remains as evidence of an uncharged crime.
       However, the court indicated that concealing the remains in her car was arguably the act of a
       “deranged individual.” As noted, the court sentenced defendant to a 50-year prison term.
¶8         Defendant moved to reconsider her sentence. The trial court denied the motion, and
       defendant appealed. Because trial counsel failed to properly comply with Illinois Supreme
       Court Rule 604(d) (eff. Feb. 6, 2013), we remanded for proceedings in compliance with that
       rule. On remand, the trial court again denied defendant’s motion to reconsider her sentence.
       On appeal, defendant’s attorney moved to withdraw as counsel pursuant to Anders v.
       California, 386 U.S. 738 (1967), and People v. Jones, 38 Ill. 2d 384 (1967). We granted the
       motion and affirmed the trial court’s judgment, noting that “there is no indication that, in any
       respect, the trial court erred in what it did or did not consider” at sentencing. People v.
       Stockton, No. 2-14-1259 (2015) (unpublished summary order under Illinois Supreme Court
       Rule 23(c)). Defendant subsequently filed the pro se postconviction petition giving rise to
       this appeal.
¶9         We begin our analysis with a brief summary of the general principles governing
       proceedings under the Act. In People v. Meeks, 2016 IL App (2d) 140509, ¶ 3, we observed
       as follows:
                   “Under the Act, a person imprisoned for a crime may mount a collateral attack on
               his conviction and sentence based on violations of his constitutional rights. [Citation.]
               Within 90 days after a petition for relief under the Act is filed and docketed, the trial
               court must examine the petition and either summarily dismiss it or docket it for
               further proceedings. [Citation.] If the trial court finds that the petition is ‘frivolous or
               is patently without merit,’ the petition will be summarily dismissed. [Citation.]
               Summary dismissal is proper if the petition ‘is based on an indisputably meritless
               legal theory or a fanciful factual allegation.’ [Citation.]”
       Any claim of substantial denial of constitutional rights not raised in the original or an
       amended petition is forfeited. 725 ILCS 5/122-3 (West 2016). We review a summary
       dismissal de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009).
¶ 10       Defendant’s pro se petition ostensibly raised three claims, the second of which was as
       follows:
                   “PETITIONER’S 6TH AMENDENDMENT [sic] RIGHT TO THE UNITED
               STATE[S] CONSTITUTION WHICH GUARANTEES A FAIR AND IMPARTIAL
               TRIAL WAS VIOLATED. TO WIT:
                   1. The Trial Judge erred in allowing the State’s Attorney to introduce evidence in
               that had nothing to do with the case at hand.
                       * The Trial Judge allowed evidence that was illegally obtained from a search
                   of the defendant’s vehicle while it was in impound for an unrelated charge. There
                   was no warrant and no probable cause to search the vehicle either time it was in
                   impound.
                       * The Trial Judge allowed the State’s Attorney to put a person on the witness
                   stand to testify against defendant claiming that he was the father of one of the
                   infants found in the trunk of defendant’s vehicle.


                                                    -3-
                        * There was no way to determine if a crime even happened when the skeletal
                   remains were found, and it was never explained how the State knew how this man
                   was father to the infant.
                   2. The Trial Judge erred un [sic] taking into consideration evidence in this case
                where the defendant was never connected to an actual crime.
                        * The Trial Judge considered the two bags with skeletal remains to be used as
                   a ‘character witness’ as to the defendant’s guilt in the case at hand.
                        * The remains have never been linked to a crime or that the defendant
                   committed a crime.
                        * The Trial Judge should never have allowed the remains or the alleged father
                   into evidence against defendant.
                   3. The Trial Judge made ‘off colored’ remarks about the defendant before he
                handed down his sentence.
                        * Trial Judge allowed his emotions to get involved when he sentenced
                   defendant and by considering the evidence that never should have been allowed.”
¶ 11        Defendant contends that the constitutional theory underlying this claim was that she did
       not receive the effective assistance of counsel on direct appeal. Defendant argues that a
       considerable amount of irrelevant and inflammatory evidence was erroneously admitted at
       sentencing, depriving her of a fair sentencing hearing. According to defendant, although trial
       counsel carefully preserved the errors for appeal, appellate counsel failed to raise them,
       thereby failing to provide effective assistance.
¶ 12        Although defendant did not use the words “ineffective assistance of appellate counsel” or
       equivalent language in her pro se petition, she contends that, at the first stage of the
       proceedings, the reference to the sixth amendment was sufficient. According to defendant,
       she “placed her claim under the umbrella of the Sixth Amendment.” Defendant further argues
       that “because of the Sixth Amendment’s direct association with the right to the effective
       assistance of counsel, when [defendant] wrote that she was denied her right to a fair and
       impartial trial under the Sixth Amendment, she sufficiently framed her allegation as a claim of
       ineffective assistance of counsel.” (Emphasis in original.)
¶ 13        In her reply brief, defendant acknowledges that her petition did not say “whether she
       invoke[d] her right to [the] effective assistance of trial counsel or appellate counsel.” She
       notes, however, that her petition asked for review of “an issue that trial counsel vigorously
       litigated and diligently preserved for review.” According to defendant, because appellate
       counsel did nothing on appeal, “[i]t is *** a reasonable conclusion that [defendant] referred
       to appellate counsel’s performance when invoking the Sixth Amendment.” Defendant
       maintains that, in view of these circumstances, reading the petition as stating a claim of
       ineffective assistance of appellate counsel gives meaning to “all words and concepts used by
       [defendant].”
¶ 14        Defendant’s argument is unpersuasive. As discussed below, the sixth amendment
       guarantees the right to the effective assistance of trial counsel, not appellate counsel. Thus,
       contrary to defendant’s argument, a claim of ineffective assistance of appellate counsel is not
       under the “umbrella” of the sixth amendment, and reading the petition to state such a claim
       does not give meaning to the petition’s reference to the sixth amendment.



                                                  -4-
¶ 15       The sixth amendment provides, “In all criminal prosecutions, the accused shall enjoy the
       right to a speedy and public trial, by an impartial jury *** and to be informed of the nature
       and cause of the accusation; to be confronted with the witnesses against him; to have
       compulsory process for obtaining witnesses in his favor, and to have the Assistance of
       Counsel for his defence.” (Emphasis added.) U.S. Const., amend. VI. “Once started, the Sixth
       Amendment’s ‘criminal prosecution’ continues through to the end of the basic trial stage,
       including sentencing.” 3 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr,
       Criminal Procedure § 11.2(b), at 710-11 (4th ed. 2015). Thus, “the ‘criminal prosecution’ has
       ended where the defendant is pursuing an appeal from his conviction.” Id. at 711. Although
       there is a right to the effective assistance of counsel in a criminal defendant’s first appeal as
       of right, that right to counsel arises from the fourteenth amendment. See Douglas v.
       California, 372 U.S. 353, 357-58 (1963) (“There is lacking that equality demanded by the
       Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of
       counsel’s examination into the record, research of the law, and marshalling of arguments on
       his behalf, while the indigent *** is forced to shift for himself.”); see also Evitts v. Lucey,
       469 U.S. 387, 396 (1985) (“A first appeal as of right *** is not adjudicated in accord with
       due process of law if the appellant does not have the effective assistance of an attorney.”).
¶ 16       In view of the foregoing, we conclude that, although a petition must be “given a liberal
       construction” (Hodges, 234 Ill. 2d at 21), the reference in defendant’s petition to the sixth
       amendment did not transform her claim into one of ineffective assistance of appellate
       counsel.1 Because defendant’s petition did not raise a claim of ineffective assistance of
       appellate counsel, the claim is forfeited. 725 ILCS 5/122-3 (West 2016).
¶ 17       For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago
       County. As part of our judgment, we grant the State’s request that defendant be assessed $50
       as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill.
       2d 166, 178 (1978).

¶ 18       Affirmed.




           1
            We do not hold that, if a claim of ineffective assistance of appellate counsel is adequately raised,
       merely referring to the sixth amendment would invalidate the claim. However, a sixth-amendment
       claim that does not contain any reference to appellate counsel is insufficient to raise a claim of
       ineffective assistance of appellate counsel.

                                                       -5-
