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People v. Smith

Court of Appeals of Illinois, Fourth District

March 8, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DARNELL M. SMITH, Defendant-Appellant

          Appeal from Circuit Court of Sangamon County. No. 09CF508. Honorable John W. Belz, Judge Presiding.

         Michael J. Pelletier, Jacqueline L. Bullard, and Janieen R. Tarrance (argued), all of State Appellate Defender's Office, of Springfield, for appellant.

         John Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Linda Susan McClain (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

         Justices Turner and Steigmann concurred in the judgment and opinion.

          OPINION

          [401 Ill.Dec. 448] APPLETON, JUSTICE.

          [¶1] Defendant, Darnell M. Smith, who is serving a sentence of 18 years' imprisonment for burglary (720 ILCS 5/19-1(a) (West 2008)), appeals the second-stage dismissal of his pro se petition for postconviction relief. See People v. Harris, 2013 IL App. (1st) 111351, ¶ ¶ 46-47, 998 N.E.2d 618, 376 Ill.Dec. 76 (describing the three stages of a postconviction proceeding). Before granting the State's motion for dismissal, the trial court granted appointed counsel's motion to withdraw from representing defendant in this postconviction proceeding. Defendant appeals, arguing that the motion to withdraw failed to explain why each of the claims in his pro se petition was frivolous or patently without merit, as the supreme court now requires such a motion to do. See People v. Kuehner, 2015 IL 117695, ¶ 21, 392 Ill.Dec. 347, 32 N.E.3d 655.

          [¶2] We do not even reach that argument. Assessing the sufficiency of the motion to withdraw would be premature, considering that postconviction counsel never filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and the record fails to clearly show counsel's fulfillment of all of his responsibilities under that rule. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.

         [¶3] I. BACKGROUND

         [¶4] A. The Pro Se Petition

          [¶5] In his pro se petition, which he filed on October 3, 2011, defendant made essentially four claims, each of which allegedly described a " clear[] violat[ion]" of his " constitutional rights."

          [¶6] The first claim was that Karen Tharp served as the prosecutor in this case [401 Ill.Dec. 449] even while, in a civil case pending in the United States District Court for the Central District of Illinois, Smith v. Tharp, No. 20-CV-3011 HAB-CHE, defendant was suing her for $100,000 on the ground that she had violated his constitutional rights in People v. Tharp, Sangamon County case No. 2005-CF-2083.

          [¶7] The second claim was that, on September 22, 2011, during the jury's deliberations in this case, the trial court allowed the prosecutor, Tharp, to interact with the jurors, as evidenced by the fact that when defendant and his defense counsel, Brian T. Otwell, were called back into the courtroom to hear the jury's verdict, Judge Belz and Tharp entered the courtroom from behind the judge's chambers and, following closely on their heels, were the bailiffs, Bob Kaehler and Mike Ground, and the " tamper[ed]-with jury."

          [¶8] The third claim was that Judge Belz should have granted defendant's motion to remove Tharp from her position as prosecutor because she previously " made racial statements by saying [to defendant:] 'If I get a chance to prosecute you again, I will win at all costs.'"

          [¶9] The fourth claim was that Judge Belz should have recused himself, given the appearance of partiality he had created by refusing to remove Tharp and by allowing her to tamper with the jury.

         [¶10]B. The State's Motion To Dismiss thePro SePe ...


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