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People v. Miller

Court of Appeals of Illinois, Third District

June 5, 2017

RYAN A. MILLER, Defendant-Appellant.

         Appeal from the Circuit Court of the 14th Judicial Circuit No. 05-CF-959, Rock Island County, Illinois. Honorable Walter D. Braud, Judge, Presiding.

          JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.



         ¶ 1 On September 29, 2006, a jury convicted defendant of first degree murder for which he originally received a mandatory natural life sentence. He later pursued relief on numerous claims of constitutional violations under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)). Some of defendant's claims were dismissed at the second-stage dismissal hearing while others proceeded to a third-stage evidentiary hearing. The trial court granted a new sentencing hearing but no other relief. At the resentencing hearing, defendant received 60 years' imprisonment, the maximum sentence for his crime. 730 ILCS 5/5-4.5-20(a) (West 2014).

         ¶ 2 Defendant raises three issues on appeal in relation to his postconviction petition. First, he appeals the claims dismissed at the second stage because the State captioned its responsive pleading as an answer, not a motion to dismiss. Next, defendant argues that we should remand for additional postconviction proceedings due to postconviction counsel's unreasonable level of assistance at the evidentiary hearing. Finally, he claims he is entitled to a new trial based upon ineffective assistance of trial and appellate counsel in failing to submit jury instructions on lesser-included offenses. In addition to his postconviction claims, defendant directly appeals the 60-year sentence imposed at his resentencing hearing, arguing that the trial court abused its discretion by levying an excessive sentence. We affirm.

         ¶ 3 BACKGROUND

         ¶ 4 On November 7, 2005, defendant, then 22 years old, was babysitting the 17-month-old daughter of his girlfriend, Ashley, after Ashley went to work at 3:30 p.m. At approximately 5 p.m., defendant sought his neighbor's help because the infant was vomiting and stopped breathing. The neighbor, Greg, followed defendant to the apartment where the infant was unresponsive. Greg immediately called 911 on his cell phone. At some point between 5 and 5:30 p.m., defendant used another neighbor's phone to call Ashley at work.

         ¶ 5 When the paramedics arrived, the infant was not breathing. The paramedics' heart monitor detected no electrical activity; revival efforts on the way to the hospital were unsuccessful. The victim's body temperature in the emergency room was 91.9 degrees, indicating she had been dead for at least one hour prior to arriving at the hospital between 5:30 and 6 p.m.

         ¶ 6 Defendant initially told the police investigator that the victim was coughing, vomiting, and breathing "funny." He stated that only two minutes elapsed between him noticing something was wrong and his neighbor calling 911. After the investigator confronted defendant with the victim's 91.9-degree body temperature and estimated time of death, he changed his story.

         ¶ 7 In his amended version, defendant claimed the victim broke a television antenna after her mother left for work. He then grabbed her and spanked her "harder than he should have." After spanking her, he grabbed her by both arms, shook her, and threw her onto the living room couch. When the victim attempted to crawl off of the couch, defendant threw her back onto it, pushed her head into the cushion, and told her to go to sleep. As she kept trying to get up, defendant admitted he pushed her head down "countless times" until she began to quiver and vomit. When the victim stopped crawling off the couch, defendant covered her with a blanket, placed a cup beside her, and went elsewhere in the apartment to write music lyrics. He did not realize the victim was unresponsive until about one hour later.

         ¶ 8 The victim had bruising about her head and face, behind her ear, on the left side of her abdomen, and on her lower back. The victim's emergency room physician stated that some of the bruises were linear, indicating they could have been caused by a straight instrument or falling against a straight edge of some sort. The forensic pathologist determined the victim died from hemorrhagic shock resulting from a transected liver-a liver split into two pieces. This type of injury could result only from significant blunt trauma of the abdomen, similar to that experienced in severe automobile accidents. The pathologist also opined that two linear bruises on the left side of the victim's torso were caused by force from a long, cylindrical object, such as an antenna. The two contusions on the victim's back were caused by blunt trauma with a hard object. The autopsy also revealed hemorrhaging beneath the victim's scalp.

         ¶ 9 Soon after defendant was charged with first degree murder, the trial court found a bona fide doubt as to his fitness to stand trial. The court appointed Dr. Kirk Witherspoon to evaluate his mental capacity. On November 18, 2005, Witherspoon's evaluation concluded that defendant was unfit for trial due to extreme distress and suicidal thoughts. He believed, however, that defendant could be restored to fitness within a year. On January 6, 2006, Witherspoon reevaluated defendant at his own request. Witherspoon found that defendant displayed the cognitive ability to understand the charges against him and implications of proceeding with trial. Accordingly, Witherspoon recommended that defendant was fit for trial; the trial court found defendant fit on January 25, 2006.

         ¶ 10 On September 25, 2006, defense counsel advised the court that defendant was taking psychotropic medications but indicated that these medications would not affect his fitness for trial. Although defendant was charged with other crimes, the State proceeded on only the first degree murder charge. After jury selection on September 25 and 26, the three day trial began on September 27, 2006.

         ¶ 11 On the first day of trial, the jury sent the judge a note asking if defendant was "on medication to calm him." The attorneys and trial court knew that defendant was taking Seroquel, a psychotropic medication. Prior to submitting the note, the jury heard testimony from the victim's mother, an investigating police officer, and the emergency room physician. The State published postmortem photographs of the victim during some of the testimony. The record does not indicate what, if any, event or behavior prompted the jury's note. Outside of the jury's presence, the attorneys and trial judge agreed that the court would not answer the jury's question. The trial judge stated that he noticed nothing unusual about defendant's demeanor. He also observed that defendant could appear calm for a variety of reasons.

         ¶ 12 After deliberating for approximately four hours on the second day of trial, the trial judge granted the jury's request to adjourn for the evening. At 10:54 a.m. the next day, the judge allowed the jury's request to see the videotape of defendant's police interrogation. The jury returned its verdict at 3:26 p.m.

         ¶ 13 The presentence investigation revealed that defendant had little criminal history-juvenile offenses for property damage and burglary in 1997 and cannabis charges in 2003 and 2005. Defendant abused several types of drugs; he admitted that he drank an eight-ounce bottle of Robitussin on the day of the offense. Treatment Alternatives for Safe Communities (TASC) submitted an evaluation letter, which concluded that defendant's cannabis and cocaine dependence was correlated to the offense. However, defendant was not eligible for TASC treatment alternatives because of the crime's violent nature. Defendant also wrote a letter expressing his remorse, stating he would have never intentionally hurt or killed the victim.

         ¶ 14 On December 15, 2006, the court heard and denied defendant's motion for a new trial. The court sentenced defendant to the mandatory natural life imprisonment under section 5-8-1(c)(ii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2006)). We rejected defendant's reasonable doubt argument on direct appeal and affirmed his conviction by Rule 23 order. People v. Miller, 385 Ill.App.3d 1144 (2008) (table) (unpublished order under Supreme Court Rule 23). Defendant raised no other issues on direct appeal.

         ¶ 15 On October 22, 2009, defendant filed a pro se petition for postconviction relief, which raised 28 separate issues. The trial court appointed counsel to represent defendant on February 3, 2010. On April 26, 2011, defendant filed a pro se amended petition, arguing his mandatory life sentence was unconstitutional under People v. Wooters, 188 Ill.2d 500 (1999). The section of the Code under which defendant received his mandatory life sentence was amended as of January 1, 2016. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (amending 730 ILCS 5/5-8-1(a)(1)(c)(ii) to remove the mandatory sentence of natural life imprisonment for murder of an individual under 12 years of age).

         ¶ 16 On September 13, 2013, defense counsel filed a Rule 651(c) certificate (Ill. S.Ct. R 651(c) (eff. Feb. 6, 2013)) and amended petition arguing, inter alia, (1) his sentence was improper under Wooters, (2) his due process rights were violated when the trial court failed to order a new fitness hearing after his psychotropic medications were changed and his actions at trial created a doubt as to his fitness, (3) his appellate counsel provided ineffective assistance by (a) failing to argue on direct appeal that trial counsel provided ineffective assistance by not requesting the jury to be instructed on involuntary manslaughter or reckless homicide, and (b) failing to argue on direct appeal that the cumulative effect of the prosecutor's "misconduct" denied defendant a fair trial, (4) his trial counsel provided ineffective assistance by (a) failing to request the jury be instructed on second degree murder, involuntary manslaughter, and reckless homicide, (b) waiving the court reporting of voir dire, thereby precluding appellate counsel from raising any issues that may have arisen therein, and (c) failing to object to the prosecutor's "numerous improper remarks" that were not based in evidence and served only to inflame the passion of the jury, and (5) his sixth amendment right to a fair and impartial trial by jury was violated when (a) the trial court denied defense counsel's request for individual voir dire, (b) the trial court denied defense counsel's Batson challenge to the jury array, (c) the prosecution made numerous improper remarks not based on evidence and meant only to inflame the passion of the jury, and (d) the State failed to disclose to defense counsel an audio recorded conversation between the victim's mother and defendant.

         ¶ 17 On April 3, 2014, the postconviction trial court discharged defendant's counsel, at defendant's request, and ordered the State to respond to the amended petition. The State filed an "answer, " which conceded that defendant was entitled to a new sentencing hearing. The State's responsive pleading asserted that defendant's other claims did not merit an evidentiary hearing. With regard to the claims that were ultimately dismissed at the second stage, the State's responsive pleading asserted: "Petitioner next alleges a laundry list of alleged errors by trial counsel, but does not allege why they were errors or how these alleged errors would have affected the outcome of the case, nor are there affidavits supporting the assertion."

         ¶ 18 At the dismissal hearing, the court found that defendant was entitled to a new sentencing hearing and an evidentiary hearing on the claims concerning his fitness and his attorneys' failure to request jury instructions ...

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