United States District Court, N.D. Illinois, Eastern Division
ROBERT L. WHARTON, Petitioner,
NEDRA CHANDLER, Warden, Dixon Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Petitioner, Robert L. Wharton, has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. For the reasons provided below, his Petition is denied. The Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On January 25, 2007, Petitioner Robert L. Wharton was indicted in the Circuit Court of DuPage County, Illinois, in case number 07 CF 46 ("case '46") on one count of predatory criminal sexual assault of a child, two counts of aggravated criminal sexual abuse, and seven counts of child pornography. (Dkt. No. 66, Ex. J at 1-11.) The following month, on February 8, 2007, Petitioner was indicted in the same court in case number 07 CF 256 ("case '256") on one count of aggravated criminal sexual abuse. ( Id. at 12.) On July 30, 2008, Petitioner pled guilty in an agreement covering both cases to one count each of aggravated criminal sexual abuse and predatory criminal sexual assault of a child. (Dkt. No. 49 at 6-7.) In exchange for his plea, the State agreed to dismiss the remaining counts of case '46, with no additional agreements. ( Id. at 3-4.) Petitioner was represented by retained counsel, Michael Norris, from the indictment up to and including sentencing. (Dkt. No. 55 at 1.)
During the July 30 change of plea hearing, the trial court asked Petitioner whether he understood that he was pleading guilty to aggravated criminal sexual abuse, "which is punishable by three to seven years in the Illinois Department of Corrections followed by two years of mandatory supervised release, " and predatory criminal sexual assault of a child, "which is punishable by six to thirty years in the Illinois Department of Corrections followed by mandatory supervised release that could be for the rest of your life." (Dkt. No. 49 at 4.) The Petitioner responded affirmatively. ( Id. at 4.) When asked whether the Petitioner's medications, Lipitor or SimQuell, affected his ability to understand the proceedings, Petitioner responded, "No, ma'am." ( Id. at 5.) Directly before Petitioner was asked how he would plead, he was asked whether anyone "promised [him] anything in order to get [him] to plead guilty other than the dismissal of certain charges here, " and he responded, "No." ( Id. at 6.)
The State provided in the factual basis for the plea to predatory criminal sexual assault of a child that Petitioner was sixty-three years old and that the victim was five years old. ( Id. at 8.) The victim was Petitioner's neighbor, who stated that Petitioner had taken pictures of and touched the victim's genitals. ( Id. ) Petitioner "acknowledged taking various photographs of [the victim] while she was naked in provocative poses; and, further, that he admitted placing his finger in the sex organ of [the victim]." ( Id. at 9.) The State then provided the factual basis for the plea to aggravated criminal sexual abuse, again beginning by noting Petitioner's age and the age of the victim, in this case ten years old. ( Id. ) This victim was also Petitioner's neighbor, and was in her basement during a family party when Petitioner approached her and "put his hand down her pants making skin-to-skin contact with her sex organ." ( Id. at 9-10.) Petitioner stipulated to these facts and, after the trial court received an affirmative response from Petitioner as to whether he understood the sentences would run consecutively, the Petitioner's plea was found to have been "knowingly and voluntarily made." ( Id. at 10.)
On November 26, 2008, Petitioner's sentencing hearing was held, and the State offered in aggravation witness testimony regarding additional victims (Dkt. No. 50 at 9-14), victim impact statements read by the victims' parents ( Id. at 17-26), and pornographic photos possessed by Petitioner ( Id. at 7-8). Norris did not object or subject any State's witness to cross-examination. ( Id. ) Detective Anthony Simpson testified that he found, pursuant to a valid search warrant, approximately 180 digital images of child pornography on Petitioner's flash drives, that the ten-year-old victim recalled to him another incident where Petitioner had fondled her breasts, and that two more adults had come forward and alleged Petitioner had sexually abused them when they were each seven-years-old. (Dkt. No. 65 at 17-18.) In mitigation, Norris offered character letters and certificates of completion of various jail programs. (Dkt. No. 50 at 28.) Norris also argued that Petitioner saved the victims and their families from enduring a trial by pleading guilty. ( Id. at 34.) Petitioner finally made his own statement, expressing remorse and arguing he was otherwise an upstanding citizen. ( Id. at 35-36.) The State argued for consecutive sentences of 25 and 5 years, and Norris argued that, given Petitioner was sixty-three years old, the State's recommendation amounted to a death sentence, inconsistent with the sentencing range of 6 to 30 years. ( Id. at 34-36.) Petitioner was sentenced to twenty years in the Illinois Department of Corrections in case '46, and four years in the Illinois Department of Corrections in case '256, the sentences to be served consecutively. ( Id. at 38.)
On December 4, 2008, Petitioner filed a motion in the Circuit Court of DuPage County, pro se, to withdraw his plea and for reconsideration of his sentence, arguing ineffective assistance of counsel based on (1) an alleged promise made to him by Norris that Petitioner would receive only twelve years if he pled guilty, and (2) that Norris failed to call any of Petitioner's character witnesses. (Dkt. No. 51, Ex. 8.) Petitioner also moved for appointment of counsel. ( Id. ) On January 21, 2009, Petitioner's motion to appoint counsel was denied because of available home equity and pension interest, and Petitioner's motions to withdraw his plea and reconsider sentence were continued so that he would have time to hire an attorney. ( Id. Ex. 9.)
On February 23, 2009, Petitioner filed an application to proceed as a poor person wherein he stated income of $60 per month and ownership of a home valued at $210, 000, automobiles valued at $2, 200, $7, 000 in savings, and $500 per month pension. (Dkt. No. 52.) At the same time, Petitioner filed a motion for transcripts and common law records which contained an attestation that Petitioner was "without financial means to pay for the report requested" in that he possessed no real estate, money or property sufficient for payment. ( Id. ) The trial court denied the motions based on the substance of Petitioner's acknowledged income and assets. ( Id. Ex. 12.)
On April 9, 2009, Petitioner filed a pro se post-conviction petition pursuant to 725 Ill. Comp. Stat. 5/122-1(a)(1), alleging the statutes he was convicted under were unconstitutional, that his counsel was ineffective, and improper application of Mandatory Supervised Release. (Dkt. No. 66, Ex. A.) Again, Petitioner filed a motion for appointment of counsel, this time averring an income of only $15 per month, and the previously identified home, vehicles, pension, and savings had been replaced by a single prison trust account containing $300. (Dkt. No. 52, Ex. 14.) The trial court again denied Petitioner's motion for appointment of counsel, noting that it had done so twice before because Petitioner's "net worth is, for purposes of appointment of the [P]ublic [D]efender, it's astronomical." (Dkt. No. 53, Ex. 17 at 3:12-14.)
Petitioner again moved to have counsel appointed on June 10, 2009, noting he "tried to obtain counsel and was willing to try and pay, but due to the severity of his case, lawyers are reluctant to represent him, " and he attached letters from attorneys declining to represent him. ( Id. Ex. 19.) This motion was denied for the same reasons it had been previously: that Petitioner had a house with over $200, 000 of equity and a pension - Petitioner acknowledged both of these assets. (Dkt. No. 66, Ex. Y at 2:18-24.) The trial court reminded Petitioner that he had pending a motion to withdraw his guilty plea and a motion to reconsider his sentence, at which point the Petitioner withdrew his motion to withdraw his guilty plea and asked to go forward, pro se, on his motion to reduce sentence alone. ( Id. at 3:14-23.) Petitioner again articulated a desire to hire counsel, and the trial court set a hearing for the motion to reduce sentence. ( Id. at 4.)
In a purported attempt to prepare for his hearing, Petitioner again moved for transcripts and common law records. (Dkt. No. 53, Ex. 20.) At his August 21, 2009 hearing, Petitioner's request for transcripts and common law records was denied. ( Id. Ex. 21.) When the trial court asked Petitioner whether he had "at least $200, 000 equity in a home in Elmhurst; isn't that correct?" petitioner responded "Yes." ( Id. at 3:3-5.) Petitioner was allowed to argue his motion to reduce sentence, and the trial court denied the motion. ( Id. at 17.)
Petitioner filed a notice of appeal on each of his cases on September 14, 2009. (Dkt. No. 54.) The cases were treated separately. ( Id. Ex. 29.) Both cases were remanded on October 14, 2009, to the trial court to determine whether Petitioner was indigent and should be appointed counsel. ( Id. )
Petitioner filed an application to defend as a poor person, and motions for appointment of counsel and transcripts and common law records in case '46. (Dkt. No. 66, Ex. K.) On December 1, 2009, the appellate court again remanded case '46 to the trial court for "specific findings of fact" relating to its finding Petitioner was not indigent. Petitioner filed a pro se appellant's brief alleging trial court error or ineffective assistance of counsel for allowing him to plead to predatory criminal sexual assault without Petitioner having penetrated the victim. ( Id. Ex. N.) However, Petitioner did not submit the record on appeal, and his motion to proceed without the record was denied because the court found "appellant's allegation of indigenc[e] in his unsigned, unverified motion to be contrary to his statements, in court... on August 21, 2009, wherein he acknowledged having over $200, 000.00 equity in his Elmhurst home." ( Id. Exs. O, P.) The appellate court dismissed case '46 solely because Petitioner had failed to file the record or a brief in compliance with Illinois Supreme Court Rules 341 and 342, and denied Petitioner's motion for rehearing on October 25, 2010. ( Id. Exs. S, U.)
In case '256, shortly after the October 14, 2009, indigence remand, the appellate court ordered Petitioner to file a docketing statement and submit a $25 filing fee within seven days. (Dkt. No. 54, Ex. 32 at 3.) Petitioner's failure to comply with this order resulted in dismissal of case '256 on November 3, 2009. ( Id. at 2.)
Petitioner filed a petition for leave to appeal ("PLA") in case 46 with the Illinois Supreme Court on December 6, 2010, and he was allowed to proceed as a poor person based on his status as an inmate. (Dkt. No. 66, Ex. W.) At this stage, Petitioner raised three issues: (1) that the appellate court erred in dismissing his case for lack of a record and failure to file in compliance with Illinois Supreme Court Rules; (2) that the appellate court was erroneous in holding Petitioner not indigent; and (3) that the trial court erred in allowing him to plead to criminal predatory sexual abuse in the alleged absence of penetration of the victim. (Dkt. No. 54, Ex. 34.) On January 26, 2011, the Supreme Court of Illinois denied Petitioner's PLA. ( Id. Ex. 35.)
Petitioner filed a pro se petition for writ of habeas corpus in both case '46 and case '256 on January 23, 2012, in this Court. In it, Petitioner asserted six grounds on which he was unlawfully held:
(1) Trial counsel was ineffective for allowing Petitioner to plead to criminal predatory sexual assault without proof of ...