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People v. Crenshaw

Court of Appeals of Illinois, Fourth District

April 19, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL E. CRENSHAW, Defendant-Appellant.

         Appeal from Circuit Court of Brown County Nos. 09CF5 Honorable Diane M. Lagoski, Judge Presiding.

          JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.

          OPINION

          KNECHT, JUSTICE

         ¶ 1 This case comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in this case. For the reasons that follow, we grant OSAD's motion and affirm the trial court's judgment.

         ¶ 2 I. BACKGROUND

         ¶ 3 On October 20, 2009, the trial court found defendant, Michael E. Crenshaw, guilty of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2008)) and sentenced him to eight years in prison on November 30, 2009. Defendant appealed his conviction, arguing the trial court erred by (1) denying his motion to suppress his confession, (2) admitting a cellular phone recording, and (3) imposing an excessive sentence. People v. Crenshaw, 2011 IL App (4th) 090908, ¶ 1, 959 N.E.2d 703. This court affirmed defendant's conviction and rejected his arguments. Id.

         ¶ 4 While his direct appeal was pending, defendant also filed a pro se postconviction petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2008)). Defendant's appointed counsel amended the petition. The trial court dismissed several claims alleged in the petition, but it allowed an ineffective-assistance claim to move forward. The claim alleged defendant's trial counsel was ineffective for failing to admonish him regarding his ineligibility for probation. The court ultimately denied defendant's postconviction petition, which was affirmed by this court in People v. Crenshaw, 2012 IL App (4th) 110202, ¶ 1, 974 N.E.2d 1002.

         ¶ 5 In December 2012, defendant pro se filed (1) a motion for substitution of judge, (2) a motion for leave to file a successive postconviction petition, and (3) a successive postconviction petition. The successive postconviction petition alleged initial postconviction counsel was ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. April 26, 2012) and amend his postconviction petition to allege (1) judicial error, (2) ineffective assistance of trial counsel, (3) newly discovered evidence, and (4) ineffective assistance of appellate counsel.

         ¶ 6 In January 2013, Judge Robert K. Adrian denied defendant's motion for a substitution of judge, finding defendant failed to show Judge Diane M. Lagoski was biased. In June 2013, the State filed a motion to dismiss the successive postconviction petition for failure to seek leave to file it. Judge Lagoski granted the State's motion, and defendant filed a motion to reconsider and a motion for a hearing. The State then filed a motion to have defendant's petition deemed frivolous and to order defendant to pay costs. Defendant filed a second motion for a hearing. In September 2013, Judge Lagoski granted the motion to reconsider and set the matter for a hearing.

         ¶ 7 Also in September 2013, defendant filed a second petition for leave to file a successive postconviction petition and an amended successive postconviction petition. The amended successive postconviction petition alleged, inter alia, postconviction counsel (1) was ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012) by failing to review the record, (2) failed to amend the initial postconviction petition to include issues of ineffective assistance of appellate counsel, (3) failed to amend the initial postconviction petition to include the claim that trial counsel misled defendant on whether there could be a substitution of judge, (4) failed to amend the initial postconviction petition to include a claim of ineffective assistance of appellate counsel on the issue of judicial bias or impartiality, and (5) failed to amend the petition to include a claim that appellate counsel was ineffective for not raising the issue of the insufficiency of the evidence. In November 2013, the trial court denied defendant's request for leave to file the successive postconviction petition, which this court affirmed in People v. Crenshaw, 2015 IL App (4th) 131035, ¶¶ 21-45, 38 N.E.3d 1256.

         ¶ 8 In February 2014, defendant filed a motion for a hearing and a motion for substitution of judge, seeking a substitution of Judge Lagoski. The motion for substitution of judge was denied by Judge Adrian in April 2014.

         ¶ 9 In August 2014, defendant filed a "motion to vacate, void judgment" under section 2-1401(f) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West 2014)), arguing the judgment against him was void because (1) the trial court committed a miscarriage of justice and plain error by dismissing the rape kit and "negative findings" by the Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial hearing. Defendant also supplemented a renewed motion for substitution of judge as a matter of right under section 2-1001(a)(2)(ii) of the Civil Code (735 ILCS 5/2-1001(a)(2)(ii) (West 2014)), which named Judge Lagoski and Judge Adrian and was originally filed in December 2014. Judge Lagoski denied defendant's motion for substitution of judge in January 2015. Judge Lagoski held a hearing on defendant's section 2-1401 petition in February 2015, and she denied defendant's petition, finding the court had jurisdiction over the case and the remaining arguments were not properly raised in a section 2-1401 petition.

         ¶ 10 Defendant timely filed a notice of appeal, listing "motion for substitution of judge, motion of void judgment" as the order appealed. Defendant listed OSAD as his attorney on appeal.

         ¶ 11 OSAD filed a motion for leave to withdraw as defendant's counsel on appeal, citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and asserted it had thoroughly reviewed the record and concluded any request for review would be without merit. OSAD argues defendant's claims relating to a "miscarriage of justice, " plain error, and ineffective assistance of counsel cannot be brought in a section 2-1401 petition and are meritless. OSAD further argues defendant's claim relating to the substitution of Judge Lagoski ...


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