                             2018 IL App (2d) 160353 

                                  No. 2-16-0353

                            Opinion filed July 20, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 09-CF-2414
                                       )
KATIE LIN STOCKTON,                    ) Honorable
                                       ) John R. Truitt,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2018 IL App (2d) 160353


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.




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2018 IL App (2d) 160353


¶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.

¶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)



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(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.



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2018 IL App (2d) 160353


                    * 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.

                    * 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.”




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2018 IL App (2d) 160353


¶ 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].”




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2018 IL App (2d) 160353


¶ 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.

¶ 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

defense.” (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.”).




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2018 IL App (2d) 160353


¶ 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.



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