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People v. Phillips

Court of Appeals of Illinois, Fourth District

December 5, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
COREY D. PHILLIPS, Defendant-Appellant.

         Appeal from Circuit Court of Adams County No. 09CF495 Honorable Mark A. Drummond, Judge Presiding.

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

          OPINION

          KNECHT JUSTICE

         ¶ 1 Defendant, Corey D. Phillips, appeals from the denial of his amended postconviction petition after a third-stage evidentiary hearing. Defendant argues he made a substantial showing his (1) trial counsel provided ineffective assistance by failing to perfect the impeachment of the victim regarding an agreement to testify, (2) due process rights were violated by the State's failure to correct victim's perjured testimony regarding the agreement to testify, and (3) appellate counsel provided ineffective assistance by failing to raise the violation of his statutory right to a speedy trial on appeal from his conviction and sentence. We disagree and affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On August 12, 2009, the State charged defendant by information with aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)), a Class X felony. On August 13, 2009, defendant was served with an arrest warrant and taken into custody. Defendant remained in custody throughout the pretrial proceedings.

         ¶ 4 On August 14, 2009, defendant made his first appearance before the trial court and requested counsel be appointed. Based on defendant's affidavit of assets and liabilities, the court found defendant to be indigent. The court appointed Assistant Public Defender Todd Nelson to represent defendant and advised defendant of his possible obligation to repay the county for the public defender expenses. Following an August 20, 2009, status hearing, the court scheduled a preliminary hearing and arraignment for September 1, 2009.

         ¶ 5 On September 1, 2009, the trial court commenced the scheduled preliminary hearing and arraignment. Defendant appeared with Nelson. Nelson informed the court: "I'm going to have to withdraw [due to a conflict of interest], and I think Mr. Downey is going to be taking [the] case." Ed Downey, who was the chief public defender, was present. Downey indicated: "I'm going to review [the case], because I just haven't even looked at the file to make sure there are no conflicts *** [s]o we'd ask it be continued." The court stated it would continue the matter to September 8, 2009, "and determine who is going to be representing [defendant]." The State requested Downey to provide notice if he was unable to proceed on September 8, 2009, due to a conflict of interest. The court then directed Downey to inform it if nobody from the public defender's office could take the case so it could appoint outside counsel. The court questioned defendant whether he understood, to which defendant indicated he did and then requested he be surrendered on another charge. The State questioned Downey whether he was in agreement with the surrender, to which Downey indicated he was. The court's written order states: (1) defendant appears with Nelson and Downey, (2) Nelson indicates he has a conflict, (3) Downey "will review these matters, " (4) defendant surrenders himself in an unrelated case, and (5) the cause is continued to September 8, 2009, "[o]n motion of [d]efendant."

         ¶ 6 On September 4, 2009, Downey filed an "Entry of Appearance, " which indicated he was moving to assign Assistant Public Defender Holly Henze as attorney for defendant.

         ¶ 7 On September 8, 2009, the trial court conducted further proceedings on the continued preliminary hearing and arraignment. Defendant appeared before the court. The court initially noted the matter had been assigned to Henze but she could not be present. Downey, who was present, confirmed Henze was unavailable and indicated he spoke with defendant, who stated he wanted to proceed with a preliminary hearing. Downey informed the court he was ready to proceed. During the preliminary hearing, Downey cross-examined the State's witness. The court also allowed Downey the opportunity to present argument on behalf of defendant. The court found probable cause to believe defendant committed the charged offense. The State inquired as to whether the court preferred to continue the arraignment to allow Henze to speak with defendant. Downey indicated he believed such a continuance "would be appropriate." The court continued the matter to September 15, 2009, for arraignment. The court's written order indicates defendant appeared with Downey for Henze.

         ¶ 8 At the scheduled September 15, 2009, arraignment, defendant appeared with Henze. Downey was also present. Henze informed the court she had a conflict of interest, and Downey recommended the outside counsel be assigned to represent defendant, as all the attorneys in the public defender's office had conflicts. The court appointed outside counsel, Todd Eyler, to represent defendant and continued the matter on its own motion.

         ¶ 9 On September 22, 2009, defendant was arraigned, and a jury trial was scheduled. Defendant's jury trial was later rescheduled for December 14, 2009.

         ¶ 10 At a December 9, 2009, status hearing, Eyler indicated he would be unavailable from December 14, 2009, through December 16, 2009, and requested the trial setting be continued until December 17, 2009, which the trial court allowed.

         ¶ 11 On December 17 and 18, 2009, the trial court conducted a jury trial. After the jury was selected and sworn, defendant made an oral motion to dismiss based on a violation of his speedy-trial rights. The court denied defendant's motion.

         ¶ 12 Kenneth Norwood testified that, on the afternoon of August 12, 2009, he was awakened in his apartment around 2 p.m. by his girlfriend, Archieona French, who told him defendant was downstairs making threatening comments about him. According to Norwood, he went outside, with French following behind him, and confronted defendant, who owed him $90. "[A] lot of people" were outside. Norwood struck defendant's head. Defendant pulled out his gun and tried to strike Norwood with it but dropped the gun. Defendant picked up the gun and then fired four shots at Norwood, who was about one foot away from defendant. Two shots struck Norwood in the leg. The bullets passed through and caused minor injuries to Norwood. During cross-examination, Norwood admitted he struck defendant before either of them spoke a word. Norwood also admitted not seeing defendant drop the gun or pick it up, but he testified others told him defendant dropped the gun.

         ¶ 13 During direct examination, Norwood admitted he had a 2005 felony conviction for "aggravated carjacking." During cross-examination, defense counsel inquired further into Norwood's felony conviction:

"Q. That's where you took the class to obtain the GED [general equivalency diploma]?
A. When I was in prison, yes.
Q. And in light of what you just said, that was for the aggravated carjacking, is that correct?
A. Yes.
Q. And that was out of Cook County?
A. Yes.
Q. And is that the only felony conviction that you have?
A. I probably have a drug conviction, but that's it.
Q. Well, you said you probably have one. Do you know?
A. I'm not sure. I was fighting in prison, and I never knew what happened with that.
Q. So you don't know is what you are telling the jury. And what you are telling us, you don't know if you have a second felony conviction?
A. I don't know."

         ¶ 14 During cross-examination, defense counsel also questioned Norwood regarding a possible deal he may have received for his testimony:

"Q. Did you meet with anybody or discuss your testimony here today?
A. No.
Q. You didn't meet with the State's Attorney's office?
A. Yes. Yes.
Q. Did you meet with any law enforcement to discuss your testimony?
A. No.
Q. Have you been promised anything for your testimony here ...

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