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People v. McCoy

Court of Appeals of Illinois, Second District

September 29, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DANIEL K. McCOY, Defendant-Appellant

Page 629

Appeal from the Circuit Court of Boone County. No. 07-CF-524. Honorable Fernando L. Engelsma, Judge, Presiding.

SYLLABUS

Where the appellate court initially affirmed the dismissal of defendant's postconviction petition on the ground that the petition lacked a proper verification and the Illinois Supreme Court ordered the appellate court to vacate the affirmance and reconsider the appeal in light of the holding in Hommerson that the lack of a proper verification is not a permissible basis for a first-stage dismissal, the appellate court held that the petition was substantively frivolous and patently without merit and again affirmed the first-stage dismissal, since the allegations that defendant was denied effective assistance of counsel, that the police lacked proper evidence, misplaced or overlooked evidence and coerced his guilty plea, that the State's Attorney manufactured evidence, and that law enforcement officers broke into the apartment of defendant's wife and told her that their children would grow up in foster homes if she did not provide a statement they wanted had to be considered totally meritless, especially when those allegations contradicted defendant's responses to the court's questions at his plea hearing.

Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender's Office, of Elgin, for appellant.

Michelle J. Courier, State's Attorney, of Belvidere (Lawrence M. Bauer and Victoria E. Jozef, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.

OPINION

JORGENSEN, JUSTICE.

Page 630

[¶1] Defendant, Daniel K. McCoy, appealed the first-stage dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)); he asserted that he stated the gist of a claim of ineffective assistance of counsel and that the dismissal was thus error. The State responded that defendant did not properly verify the petition and that dismissal was therefore mandatory. We agreed and affirmed the dismissal. People v. McCoy, 2011 IL App. (2d) 100424, 962 N.E.2d 1157, 357 Ill.Dec. 256. The supreme court has now ordered us to vacate the affirmance and reconsider the appeal in light of People v. Hommerson, 2014 IL 115638, 378 Ill.Dec. 459, 4 N.E.3d 58, in which it held that the lack of a proper verification is not a permissible basis for a first-stage dismissal. People v. McCoy, 8 N.E.3d 1042, 380 Ill.Dec. 500 (Ill. 2014) (supervisory order). We now hold that defendant's petition was substantively frivolous and patently without merit. We therefore affirm the dismissal.

[¶2] I. BACKGROUND

[¶3] A grand jury indicted defendant on a count of armed robbery (720 ILCS 5/18-2(a) (West 2006)) (the taking at knifepoint of $65, a large stuffed-crust pizza, and an order of hot wings) and two counts of burglary (720 ILCS 5/19-1(a) (West 2006)). The court accepted a negotiated guilty plea from defendant on September 26, 2008. At that hearing, the court asked defendant whether, to induce him to accept the plea agreement, anyone had made any promises other than those in the plea agreement or had done anything to coerce him. Defendant agreed that there had been no additional promises or coercion. For its part, the State dismissed the burglary counts. The court sentenced defendant to 10 years' imprisonment. He later filed a " Motion for Reduction of Sentence" that the court properly denied as untimely. We dismissed his appeal. See People v. McCoy, 399 Ill.App.3d 1235, 990 N.E.2d 936, 371 Ill.Dec. 748 (2010) (unpublished order under Supreme Court Rule 23).

Page 631

[¶4] On January 26, 2010, defendant filed a petition under the Act. In it, he asserted ...


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