Court of Appeals of Illinois, First District, Third Division
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Appeal from the Circuit Court of Cook County. No. 08 CR 18719 (02). The Honorable Nicholas Ford, Judge, presiding.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Brian K. Hodes, Assistant State's Attorney, Chicago, IL.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Therese Bissell, Assistant Appellate Defender, Office of the State Appellate Defender Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
[¶1] Defendant, Isaiah Brown, appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), following his conviction for unlawful use of a weapon by a felon. Brown contends the trial court erred in dismissing his petition without an evidentiary hearing because he made a substantial showing of a constitutional violation where trial counsel was ineffective for failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State's guilty plea offer and the extended sentence he faced if convicted at trial. And, trial counsel was ineffective because she labored under a conflict of interest by also representing Omar Young, another man arrested at the scene and a potential defense witness. Brown further argues the trial court demonstrated bias against him by prejudging his case and asks this court to remand his cause for an evidentiary hearing before a different judge.
[¶2] We affirm. The trial court properly dismissed Brown's second-stage postconviction petition. The allegations in Brown's petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record before us.
[¶4] Following a jury trial, Brown was convicted of unlawful use of a weapon by a felon (UUWF). Initially, the court sentenced Brown to 18 years in prison, but following a motion to reconsider, imposed a 13-year sentence. We affirmed his conviction and sentence on direct appeal. People v. Brown, No. 1-09-1826, [published in table format at 403 Ill.App.3d 1101, 993 N.E.2d 147, 373 Ill.Dec. 147] (Oct. 13, 2010) (unpublished order under Supreme Court Rule 23(c)(7)).
[¶5] Trial Proceedings
[¶6] On September 11, 2008, at 3:30 p.m., Chicago police officer Elizabeth Ayala responded to a neighbor's call that a man was standing on the porch of 167 North Lockwood, Chicago, with a machine gun. Officer Ayala was the first officer to arrive at the two-story brownstone. She saw six men in front of the house--three on the porch (Omar Young, Elliot Harper and Isaiah Brown) and three in front of the porch. Officer Ayala approached the house through the front gate, and as she did, she saw the barrel of an assault rifle sticking out of Harper's shirt. Officer Ayala drew her gun and told the six men to get to the ground.
[¶7] According to Ayala, Harper and Brown reacted slowly to her instruction. Officer Ayala testified Brown had a 9-millimeter handgun. She watched him as
he moved to the side of the porch, leaned over, and dropped the gun out of his hand. Brown then set the beer bottle he had in his other hand on the stoop before lying on the ground.
[¶8] Officer Ayala secured Harper's weapon by grabbing the barrel of the gun as she aimed her gun at him.
[¶9] Officer Ayala testified she never lost sight of the handgun Brown dropped and that she instructed Officer Michael Petrusonis, who had arrived on the scene, to secure the gun. Petrusonis recovered and secured the loaded gun. He showed the gun to Officer Ayala, who confirmed it was the one Brown dropped. The police arrested all six men, including Brown and Harper, and transported them to the police station. The police inventoried the gun and the bullets that had been removed from it. The 9-millimeter gun was never fingerprinted.
[¶10] On October 1, 2008, the State charged Brown with two counts each of UUWF and aggravated unlawful use of a weapon (AUUW) and codefendant Harper with two counts of AUUW. Harper pled guilty to one count of AUUW; Brown proceeded to a jury trial.
[¶11] At trial, Officer Ayala identified Brown as the individual who had dropped the loaded handgun recovered by Officer Petrusonis. Petrusonis testified he recovered, secured, and inventoried the handgun and the bullets it contained. Brown moved for a directed finding, which the court denied.
[¶12] Teona Henry, Brown's first cousin, testified for the defense that Brown did not have a gun that day and that another man, " Omar," dropped the gun the police recovered. Henry testified she lived at 167 North Lockwood, on the second floor, with her grandmother living below her on the first floor. Henry arrived home that day shortly after 3 p.m. and parked her car in the alley. At the same time, Brown, his wife, and their son drove up and parked in the alley as well. Henry testified she walked with Brown and his family through the gangway and entered the yard of their grandmother's home. They observed some men standing on the porch, but Henry testified it was common for men to hang out on the home's porch when no one was home.
[¶13] Henry testified that when she first arrived at the house, she saw Harper with a gun strapped to his back. She told Brown to tell the men to get off the porch. Brown's wife and son went in the house. Henry followed and was about to walk through the door when the police arrived. She testified that Officer Ayala came through the yard with her gun drawn and instructed everyone to get on the ground. Henry stood still in front of the door. She testified Harper, Young, and a man named Jeremy were on the porch and a few other people were near the steps leading up to the porch, including Brown, who was at the banister near the gangway.
[¶14] When Officer Ayala arrived, Henry saw Young take a gun out of the front of his pants, put his hand on the side of the banister and drop the gun. Henry testified she never saw Brown with a gun in his hand, only a beer.
[¶15] Brown did not testify.
[¶16] The jury found Brown guilty of UUWF. The court denied Brown's motion for a new trial and proceeded to sentencing.
[¶17] The State argued Brown was " Class X mandatory" because this was his third Class 2 conviction. The State informed the court of Brown's criminal history, including: (1) Class 1 possession of a controlled substance, for which he received probation that was terminated unsuccessfully;
(2) Class 2 delivery of a controlled substance, for which he received Cook County boot camp; (3) forgery, for which he received probation that was terminated unsuccessfully; and (4) federal possession of explosive devices, for which he was sentenced to 28 months and 15 days in federal prison. The State argued the sentencing range should be 6 to 30 years and asked that a 6-year sentence be imposed.
[¶18] Defense counsel argued the sentencing range should be three to seven years, the range for a Class 2 felony, and asked for the minimum. In mitigation, defense counsel argued Brown was a working father of three who supported his family and might have a problem with alcohol. Brown spoke, denying any wrongdoing and stated his trial counsel, Dawn Projansky, " did a good job" and he " believed in her and trusted her judgment to go for a jury trial. She worked so hard for me and, she did her best and I thank her again."
[¶19] The trial court found the sentencing range to be 6 to 30 years and sentenced Brown as a Class X offender to 18 years' imprisonment.
[¶20] Defense counsel moved to have the sentence reconsidered, arguing that Class X sentencing was an unauthorized " double upgrade." Following a hearing, the court found Brown was not subject to Class X sentencing. The court held the sentencing range was 3 to 14 years and resentenced Brown to 13 years for UUWF.
[¶21] Direct Appeal
[¶22] On direct appeal, Brown argued the trial court abused its discretion in sentencing him to an " excessive" sentence of 13 years. We affirmed the sentencing, finding the trial court properly considered the aggravating and mitigating factors presented by the parties and Brown's significant criminal history. People v. Brown, No. 1-09-1826, [published in table format at 403 Ill.App.3d 1101, 993 N.E.2d 147, 373 Ill.Dec. 147] (Oct.13, 2010) (unpublished order under Supreme Court Rule 23(c)(7)).
[¶23] Postconviction Proceedings
[¶24] Brown retained private counsel, Scott Frankel, and filed his petition for postconviction relief on June 30, 2011. In his initial petition, Brown argued his trial counsel, Dawn Projansky, was ineffective for failing to (1) communicate the State offered a three-year sentence in exchange for Brown's guilty plea, (2) fully advise Brown of the extended sentence he faced, because of his background, if convicted, and (3) conduct a reasonable investigation and present the testimony of potential ...