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People v. Johnson

Court of Appeals of Illinois, Fourth District

March 31, 2017

GRANVILLE S. JOHNSON, Defendant-Appellant.

         Appeal from Circuit Court of Champaign County No. 08CF1424 Honorable John R. Kennedy, Judge Presiding.

          JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Appleton concurred in the judgment and opinion.



         ¶ 1 In April 2014, defendant, Granville S. Johnson, filed a petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014)) with the assistance of private counsel. In June 2014, the trial court dismissed defendant's petition at the first stage of postconviction proceedings.

         ¶ 2 In July 2014, defendant's counsel withdrew his representation, and defendant filed a timely pro se motion to reconsider, which he later supplemented. Defendant's motion to reconsider and its supplement alleged postconviction counsel provided "ineffective" assistance by failing to raise certain previously requested claims in his postconviction petition.

         ¶ 3 In May 2016, the trial court denied defendant's motion to reconsider and found any new claims raised in his motion to reconsider and its supplement were forfeited as they were not raised in the original petition. Defendant appeals, arguing the trial court erred by (1) not considering whether postconviction counsel's representation was "unreasonable" for failing to include the additional claims in his postconviction petition and (2) summarily dismissing his petition because at least one of the claims he would have raised states the gist of a meritorious claim. We affirm.

         ¶ 4 I. BACKGROUND

         ¶ 5 In August 2009, a jury found defendant guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), and, in November 2009, the trial court sentenced him to consecutive terms of 53 years' and 32 years' imprisonment. Defendant's convictions and sentence were later affirmed on appeal, and both his petition for leave to appeal to the Illinois Supreme Court and his writ of certiorari with the United States Supreme Court were denied. People v. Johnson, 2012 IL App (4th) 090893-U (affirming on direct review), appeal denied, No. 115225 (Ill. Jan. 30, 2013); Johnson v. Illinois, 134 S.Ct. 358 (2013) (denying petition for a writ of certiorari).

         ¶ 6 A. Direct Review

         ¶ 7 On appeal from his convictions and sentence, defendant argued, in relevant part, the trial court erroneously concluded the State exercised due diligence in obtaining deoxyribonucleic acid (DNA) test results and thus was entitled to an extension of the speedy-trial deadline under section 103-5(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(c) (West 2008)). Johnson, 2012 IL App (4th) 090893-U, ¶¶ 2, 18. In support of his argument, defendant highlighted three examples of a lack of due diligence: (1) the State, despite sending other evidence for testing on August 13, 2008, failed to request a DNA standard for comparison until October 15, 2008; (2) despite obtaining defendant's sample, the State did not send the sample to the crime lab until early January 2009; and (3) the State could have avoided any delay had it checked the Illinois State Police DNA database, which had contained defendant's DNA since at least 2005. Id. ¶ 18. After reviewing the record "as it existed at the time of the [October 20, 2008, ] hearing" on the State's motion for a continuance, we concluded the trial court's decision to grant the State a continuance was not an abuse of its discretion. Id. ¶¶ 22-28.

         ¶ 8 B. Postconviction Petition

         ¶ 9 In April 2014, defendant, through private counsel, filed a postconviction petition, alleging ineffective assistance of trial counsel for counsel's failure to file a motion to reconsider the trial court's October 20, 2008, order based on newly tendered evidence. Specifically, defendant alleged, on October 21, 2008, the State tendered supplemental discovery to trial counsel, which included a September 11, 2008, Illinois State Police lab report. According to the petition, the lab report stated the lab "was ready to proceed with DNA testing as soon as it received (1) permission to consume some of the samples in the testing process[, ] and (2) a sample of [defendant's] DNA." The State did not file its motion to permit destruction of evidence necessary to complete forensic testing and motion for an order requiring the submission of defendant's biological and hair samples until October 15, 2008. Defendant asserted the State's failure to take the steps necessary to complete testing for approximately one month demonstrated, contrary to the court's previous decision, it did not act diligently in obtaining the DNA test results. Defendant argued, had (1) trial counsel filed a motion for the court to reconsider its prior ruling based on the newly tendered evidence, the trial court may have reversed its decision to grant the State a continuance; and (2) the court reversed its prior decision, the State would have been required to try defendant by November 2008, which might well have led to the dismissal of the charges for a violation of the speedy-trial statute.

         ¶ 10 C. First-Stage Dismissal

         ¶ 11 On June 11, 2014, the trial court summarily dismissed defendant's postconviction petition. The court characterized defendant's petition as raising a claim his trial counsel was ineffective for failing to file a motion to reconsider the trial court's ruling granting the State a continuance to obtain DNA evidence, which, in turn, resulted in a violation of his right to a speedy trial. The court found defendant was "procedurally barred from asserting [his claim] under the doctrine of res judicata" as it was an issue "that [was] or could have been raised on direct appeal" and defendant "allege[d] no new evidence or information that was not or could not have been a subject of [his] direct appeal." In addition, the court found defendant's claim did not meet the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). On June 23, 2014, defendant, through counsel, filed a notice of appeal.

         ¶ 12 D. Retained Counsel's Motion to Withdraw Representation

         ¶ 13 On July 7, 2014, defendant's counsel filed with this court a motion to withdraw as counsel and appoint the office of the State ...

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