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People v. Knapp

Court of Appeals of Illinois, Second District

June 13, 2019

JUSTIN KNAPP, Defendant-Appellant.

          Appeal from the Circuit Court of McHenry County. No. 08-CF-562 Honorable Sharon L. Prather, Judge, Presiding.

          PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice McLaren dissented, with opinion.



         ¶ 1 Defendant Justin Knapp was convicted of attempted first degree murder (720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2008)), two counts of aggravated battery (720 ILCS 5/12-4(b)(1), (b)(8) (West 2008)) and mob action (720 ILCS 5/25-1(a)(1) (West 2008)). The trial court sentenced defendant to 16 years in the Illinois Department of Corrections on the attempted first degree murder. This court affirmed defendant's conviction in People v. Knapp, No. 2-09-0089 (2010) (unpublished summary order under Illinois Supreme Court Rule 23(c)). On November 9, 2015, defendant filed a pro se petition pursuant to the Post Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2014)). The trial court summarily dismissed defendant's petition. Defendant appeals from the summary dismissal. Because the record positively rebuts defendant's claim of ineffective assistance of trial counsel we affirm the summary dismissal and assess statutory State's Attorney fees.

         ¶ 2 I. BACKGROUND

         ¶ 3 Our decision in Knapp I was a summary order. A more detailed background is necessary to dispose of this appeal. On July 3, 2008, defendant and his co-defendant, Luis Rodriguez, were indicted for attempt first-degree murder, two counts of aggravated battery and mob action in connection with the June 10, 2008, stabbing of Jorge Avitia. The State's theory was that the defendants were members of the Nortenos 14 street gang and that the victim, Jorge Avitia, was affiliated with a rival gang, the Latin Kings. Prior to trial the State filed a motion in limine to introduce gang evidence on the issue of motive for the stabbing. The trial court deferred ruling on the motion. The State requested that two of its witnesses, Jorge Avitia and Andres Pedroza, be granted immunity regarding underage drinking. Defense counsel filed a motion to suppress a video-recorded statement defendant gave following his June 10, 2008, arrest. The State agreed to the suppression of the statement because defendant "asked for an attorney right off the bat." Defense counsel acknowledged that the recording was accurate in the event it was coming "in for another matter."

         ¶ 4 A. The Trial

         ¶ 5 Timothy Schroeder, a firefighter/paramedic with the Woodstock Fire Department, testified that at 5:24 a.m. on June 10, 2008, he responded to the scene of a stabbing outside an Aldi store in Woodstock. Police officers were already at the scene when Schroeder arrived. The male victim, Jorge Avitia, was on the ground and another male was standing over him. Avitia's pupils did not respond to any kind of stimuli, an early sign that his brain was beginning to shut down. Avitia's clothes were removed, revealing that he had multiple stab wounds to his body. After the wounds were dressed, Avitia was provided advanced life support and transported to the hospital.

         ¶ 6 Nineteen-year-old Andres Pedroza testified that he had been friends with the defendant and Jorge Avitia since the third grade. On June 10, 2008, at 2:00 a.m. Pedroza was at his house in Crystal Lake along with defendant. Avitia came over to Pedroza's house. A short time later Christian Saenz, along with Luis Rodriguez, came over to Pedroza's house to pick the others up and drive to Woodstock. Pedroza did not know Luis Rodriguez, who sat in the passenger seat. On the way to Woodstock the group stopped at apartments in Crystal Lake. When the group arrived in Woodstock they went to a home behind the Aldi store. The group entered the home and sat in the living room. Christian Saenz left. Rodriguez and Avitia began to argue. Defendant was seated on a couch next to Pedroza. Pedroza heard Rodriguez say "F*** you, George" to Avitia. Rodriguez also called Avitia a "King killer." Pedroza testified that he guessed this was a reference to a gang, the Latin Kings. He did not know whether defendant was in a gang, but he knew defendant had tattoos on his arm and face. Some of his tattoos had four dots, which could be associated with the Nortenos, also known as the Nortenos 14 street gang.

         ¶ 7 Pedroza testified that after hearing the argument he said, "[l]et's go" to Avitia. The two left the house and headed toward the train station. Pedroza noticed that defendant and Rodriguez were following them. Pedroza heard Rodriguez say, "fourteen something" and also heard defendant say something. As defendant and Rodriguez closed in, they began hitting Avitia. Both men were punching Avitia in the body. Pedroza grabbed defendant and asked him and Rodriguez what they were doing. Pedroza believed Rodriguez hit Avitia one more time. Defendant and Rodriguez then left. Avitia passed out and Pedroza called 911. The police drove Pedroza back to the house where the group had gathered. He identified defendant as one of the attackers. Pedroza recalled that either Rodriguez or defendant was holding "something shiny" before or after the attack.

         ¶ 8 On cross-examination Pedroza admitted he had been drinking before going to the house in Woodstock but he said that he stopped drinking before arriving there. The last act between Rodriguez and Avitia was when Rodriguez kicked him and Avitia went down.

         ¶ 9 Officer Jeremy Mortimer of the Woodstock police department testified that Avitia was covered in blood and unconscious when he arrived on the scene. Pedroza was trying to revive Avitia. Mortimer drove Pedroza to the house on Brick street where Pedroza identified defendant.

         ¶ 10 James Kelly testified that he lived at 672 Brick Street in Woodstock. Rodriguez was a friend of Kelly's and it was not unusual for him to bring people to Kelly's house to party. When Kelly arrived at home the night of June 9, 2008, Rodriguez and one of his friends were at his house. Kelly went to bed at about 12:30 a.m. on June 10, 2008. He recalled being awakened in the early morning and finding defendant inside his home. Defendant was pacing in front of the door and he asked Kelly to not open the door. Kelly told defendant to sit down and opened the door to allow the police to enter. Defendant sat on the couch "freaking out" and yelling at the police. Defendant threatened the police and Kelly because Kelly would not let him smoke. Kelly recalled defendant saying "some kind of gang thing about Nortenos." He characterized defendant as being "very aggressive."

         ¶ 11 Katrina Cardella testified that she was James Kelly's girlfriend and lived at his house on Brick Street. The morning of June 10, 2008, Cardella was awakened by the police banging on the house. She had never seen defendant before defendant told her to not open the door. Kelly told defendant to calm down and sit down. Defendant told Cardella and Kelly that he was going to kill them. Defendant told the police officer that "he was going to rape and murder their wives." He was yelling "gang slogans about Fourteens and how he was a gang banger and they never die." Defendant asked the police if they knew where their children were. Cardella noticed that there was a knife missing from a set of knives in the kitchen. She identified State's exhibit 16, a knife recovered by the police outside the home, as the knife that was missing from the kitchen.

         ¶ 12 Woodstock police officer Daniel Henry was dispatched to the scene of the stabbing. Upon getting a description of the suspects he went to Brick Street. He saw defendant in front of the home at 672 Brick Street. Defendant was holding two gas cans. After seeing Henry, defendant ran inside the home. Henry knocked on the door and James Kelly allowed him inside.

         ¶ 13 Woodstock police officer Litner[1] was Daniel Henry's partner and assisted in defendant's arrest. Litner said defendant was very angry and kept repeating "Nortenos Fourteens." Defendant was screaming and shouting.

         ¶ 14 Officer Matt Harmon testified that while trying to make contact with the people inside 672 Brick Street he noticed a knife, identified as State's exhibit 16, outside another entrance at the back of the house. The knife had grass on it but did not have any blood on it. No fingerprints were recovered from the knife.

         ¶ 15 Jorge Avitia testified that he lived in Crystal Lake and he has been friends with defendant since the fourth grade. On June 16, 2008, at about 2:45 a.m., Avitia was at Pedroza's house when his friend Christian Saenz and another friend picked them up. Luis Rodriguez was with them. They drove to a house in Woodstock near the Aldi store. An argument broke out about "Nortenos and Kings." Avitia heard Rodriguez say "King killer" and "Nortenos love," which means "you get love for that gang, the street gang." Avitia knew that defendant was a member of the Nortenos street gang. After he and Pedroza left the house to head for the train station he was attacked by defendant and Rodriguez. Before the attack he heard them say "f*** you" and "Nortenos." Avitia yelled "f*** you" back at them. During the attack defendant was on his left and Rodriguez was on his right side. Both men were punching him. His next memory was waking up in the hospital. He suffered a puncture wound to his heart and two stab wounds to his stomach.

         ¶ 16 On cross-examination Avitia denied being a gang member. He did not know whether it was defendant or Rodriguez who stabbed him. On re-direct Avitia acknowledged that he is friends with some Latin King members and he admitted that he wears black and gold clothing, the King colors. Avitia said he had been friends with Latin King members for five years.

         ¶ 17 Office Paul Olazak from the Crystal Lake police department testified that defendant told him that he was a member of the Nortenos Fourteen street gang. The Nortenos Fourteen street gang is a rival of the Latin Kings.

         ¶ 18 Office Dimitri Boulahanis of the Crystal Lake police department testified as an expert on street gangs. He provided a history of the Latin Kings and the Nortenos Fourteen. Boulahanis said that defendant had four gang tattoos, wears the Nortenos Fourteen colors and has used hand gestures demonstrating that he was a member of that gang. Boulahanis had seen Jorge Avitia wearing Latin Kings colors predominantly over the years. He had seen Avitia socializing with members of the Latin Kings in 2006 and 2007, although Avitia never admitted being of member of the Latin Kings.

         ¶ 19 Dr. Oscar Habab treated Avitia when he arrived at the hospital. Avitia suffered three stab wounds. The wounds were located below the left collarbone, in the left armpit and in the right lower abdomen. Avitia's blood alcohol content was 0.18.

         ¶ 20 Dr. Amir Heydari performed surgery on Avitia. Avitia had lost more than 500 ccs of blood. He suffered a stab wound to the heart. During surgery Avitia's heart stopped and he had to be fibrillated.

         ¶ 21 Forensic testimony established that reddish-brownish stains on defendant's shoe and watch were not a DNA match with Avitia's DNA. The knife recovered outside Kelly's home was examined for fingerprints but none were found. The State rested.

         ¶ 22 The defense offered certified statements of conviction to impeach two of the State's witnesses. Kelly had a conviction for theft by deception under $300 and Avitia had been convicted of aggravated driving under the influence of alcohol. Defendant rested.

         ¶ 23 During the jury instruction conferences prior to closing arguments the State requested that the trial court admonish defendant of his right to testify. The following exchange took place:

"THE COURT: I will. Thank you, Miss Kelly. Sir, your attorney has just rested the defense case. Have you discussed with Mr. Sugden (defense counsel) your right to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: Sir, is it your choice not to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: You discussed this thoroughly with Mr. Sugden?
THE COURT: You understand that the right to testify is a decision that you and you alone have the right to make but you should make that decision only after discussing it with your attorney. You have done that?
THE DEFENDANT: Yes, ma'am.
THE COURT: It's your choice not to testify?
THE DEFENDANT: Yes, ma'am.
THE COURT: Thank you.
DEFENSE COUNSEL: I have discussed it at great length with him and it's his decision and I respect it.
THE COURT: Okay. The record will so reflect. Thank you.

         ¶ 24 During closing argument, the State argued that the undisputed evidence showed that defendant participated in the attack on Avitia and that even if defendant did not actually do the stabbing, defendant was accountable for Rodriguez's conduct. The State argued that defendant's loyalty to the gang was more powerful than his friendship with Avitia that night.

         ¶ 25 Defense counsel argued that the State's evidence was weak. There was no scientific evidence to corroborate the State's theory. "No fingerprints. No blood. No photographs." Defense counsel argued that the State's gang theory made no sense. Avitia was aware of defendant's gang affiliation for years and vice versa. There was no reason for defendant to "suddenly go off." Defense counsel argued that everyone had been drinking and no one really knew what took place. The jury found defendant guilty on all counts.

         ¶ 26 Defendant appealed his conviction and sentence. This court affirmed defendant's conviction and sentence on direct appeal in People v. Knapp, No. 2-09-0089 (2010) (unpublished summary order pursuant to Illinois Supreme Court Rule 23(c)).

         ¶ 27 B. Post-Conviction

         ¶ 28 On November 19, 2015, defendant filed a pro se petition pursuant to the Act (725 ILCS 5/122 et seq. (West 2014)). Defendant's petition raised three issues: actual innocence, involuntary waiver of his right to testify and ineffective assistance of appellate counsel.

         ¶ 29 In his petition defendant alleged that his decision not to testify was induced by "his attorney illegally withholding information critical to [his] decision thus rendering his decision involuntary." Defendant alleged that he had several pretrial conversations with defense counsel regarding his right to testify. He alleged that he told his attorney that the argument with Avitia inside the house was not about gangs but was about a female name Jackie Gutierrez. He also told his attorney that he would testify that Luis Rodriguez was not a known member of the Nortenos street gang and that he had only met Rodriguez once prior to the events of June 10, 2008. His attorney told him that his testimony regarding the argument inside the house was unnecessary, because Avitia's statement to the police "disavowed that the incident was gang related." He said that his attorney told him that: his proposed testimony that the argument was about a girl was not supported by independent evidence; his testimony that Rodriguez was not a known member of the Nortenos would open the door for the State's gang expert; and his testimony that he had only met Rodriguez once before was not supported by any independent evidence.

         ¶ 30 Defendant alleged that he also had "in-trial conversations" with defense counsel about testifying. He told defense counsel that: he only removed two gas cans from where Rodriguez washed blood off his bands inside the bathroom; that he saw blood on Rodriguez's pants; and that Jackie Gutierrez was present at Rodriguez's house but left suddenly because of lewd comments to her by Rodriguez. As to each of these areas, defense counsel told him that his proposed testimony was unsupported by evidence. On January 28, 2016, the trial court dismissed defendant's petition by written order. The trial court found that the claim of actual innocence was insufficient and not supported by the documents attached to the petition. The trial court recharacterized defendant's second claim as a claim of ineffective assistance of trial counsel and found that this claim was barred by res judicata and forfeiture. The trial court found that defendant's claim of ineffective assistance of appellate counsel was frivolous and patently without merit. Defendant timely appealed the summary dismissal of his petition.

         ¶ 31 II. ANALYSIS

         ¶ 32 On appeal, defendant argues only that the trial court erred with respect to his second claim, that trial counsel was ineffective for not allowing defendant to testify, citing People v. Palmer, 2017 IL App (4th) 150020, ¶ 17; People v. Youngblood, 389 Ill.App.3d 209, 217 (2009) and People v. Whiting, 365 Ill.App.3d 402, 408 (2006).

         ¶ 33 A. Ineffective Assistance of Counsel

         ¶ 34 Defendant argues that the trial court erred in determining that his claim of ineffective assistance was procedurally barred because defendant "relies on matters that were not part of the record on direct appeal" citing People v. West, 187 Ill.2d 418 (1999). He also argues that his petition presents the gist of a constitutional claim of ineffective assistance of trial counsel because while he "did not expressly state that he informed counsel he wanted to testify, he laid out in some detail the testimony he was prepared to present, and the reasons counsel would not allow him to testify." Defendant acknowledges that a postconviction petition may be summarily dismissed where the allegations are positively rebutted by the record. People v. Palmer, 2017 IL App (4th) 150020, ¶ 23. He argues that the record does not positively rebut his claim because he has alleged that "his statements to the court regarding his waiver of his right to testify were the direct result of counsel's misrepresentation." He claims that based on the detail provided in his postconviction petition, we may infer that he communicated a desire to testify to defense counsel and counsel responded by convincing defendant not to testify, citing Youngblood, 389 Ill.App.3d at 224. Defendant contends that we should not take his statements regarding his waiver of his right to testify "at face value, as the Palmer court apparently did."[2]Defendant contends that it is arguable the he was prejudiced by counsel's advice that he should not testify.

         ¶ 35 The State does not challenge defendant's argument that the trial court erred in finding that his claim of ineffective assistance of trial counsel was procedurally barred. Instead, the State argues that we must affirm the trial court's dismissal of defendant's petition because defendant did not make a "contemporaneous assertion of his right to testify" citing Youngblood, 389 Ill.3d at 217 and People v. Brown, 54 Ill.2d 21, 24 (1973). The State argues that contrary to defendant's position, the record does not demonstrate that defense counsel would not allow defendant to testify, but rather that defendant chose not to testify after accepting counsel's advice. The State contends that where the record shows that a defendant unequivocally states that he is aware of his right to testify, but chooses to waive that right, he cannot later successfully argue that his decision to not testify was involuntary. It also argues that, even if we were to find that defense counsel's performance fell below professional standards, defendant cannot demonstrate that he was prejudiced.

         ¶ 36 The Act establishes a three-stage process for adjudicating postconviction petitions. 725 ILCS 5/122-1 et seq. (West 2014); People v. Hommerson, 2014 IL 115638, ¶ 7. At the first stage, the circuit court determines whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014); Hommerson, 2014 IL 115638, ¶ 7. At this stage of the proceedings "the court should only determine whether the petition alleges constitutional deprivations." Id. ¶ 10.

         ¶ 37 Here, the trial court dismissed defendant's postconviction petition claim of ineffective assistance of trial counsel, finding that the claim was barred by res judicata and forfeiture. Our review of a trial court's dismissal of a postconviction petition is de novo. People v. Hodges, 234 Ill.2d 1, 9 (2009). "We review the trial court's judgment, not the reasons cited, and we may affirm on any basis supported by the record if the judgment is correct." People v. Anderson, 401 Ill.App.3d 134, 138 (2010). "Most postconviction petitions are drafted by pro se defendants, and accordingly, the threshold for a petition to survive the first stage review is low. People v. Allen, 2015 IL 113135 (2015) (citing Hodges, 234 Ill.2d at 9 (2009)). To survive dismissal at the first stage the petition need only present "the gist of a constitutional claim." People v. Gaultney, 174 Ill.2d 410, 418 (1996). In evaluating the merits of a postconviction petition the trial court must accept all well-pleaded allegations as true, "unless the allegations are positively rebutted by the record." People v. Youngblood, 384 Ill.App.3d 209, 214 (2009). If a petition presents "legal points arguable on their merits" it is not frivolous. Hodges, 234 Ill.2d at 11. A petition may be dismissed as being "frivolous and patently without merit only 'if the petition has no arguable basis in law or in fact'-relying on 'an indisputably meritless legal theory or a fanciful factual allegation.'" Allen, 2015 IL 113135, ¶ 25 (quoting Hodges, 234 Ill.2d at 16-17). Legal theories that are meritless include ones that are completely contradicted by the record, while "[f]anciful factual allegations include those which are fantastic or delusional." Hodges, 234 Ill.2d at 17. Our supreme court has consistently upheld the dismissal of postconviction petitions "when the record from the original trial proceedings contradicts the defendant's allegations." People v. Rogers, 197 Ill.2d 216, 222 (2001).

         ¶ 38 To prevail on a claim of ineffective assistance of counsel, "a defendant must show that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'" People v. Domegala, 2013 IL 113688, ¶ 36 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). A defendant alleging ineffective assistance of trial counsel "must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence." People v. Coleman, 183 Ill.2d 366, 397 (1998).

         ¶ 39 Defendant's petition fails to establish even the gist of a claim that trial counsel's performance was deficient. Defendant acknowledges that in his petition he "did not expressly state that he informed counsel he wanted to testify." Instead, he asks us to infer from the details he provided that "he communicated a desire to testify to counsel both before and during trial." We reject this reasoning. A defendant in a criminal case has a constitutional right to testify in his own defense, but that right may be waived. In order to effectively waive his right to testify, "a defendant is not required to execute a specific type of waiver, nor is the trial court required to ascertain whether a defendant's silence is the result of a knowing and voluntary waiver to testify." In re Joshua B., 406 Ill.App.3d 513, 515 (2011) (quoting People v. Chatman, 357 Ill.App.3d 695, 703 (2005)). The decision whether to take the witness stand and testify belongs to the defendant "but it should be made with the advice of counsel." People v. Smith, 176 Ill.2d 217, 235 (1997). As a general rule, advice not to testify is a matter of trial strategy that does not amount to ineffective assistance of counsel unless counsel refused to allow the defendant to testify. Coleman, 2011 IL App (1st) 1091005, ¶ 29 (citing Youngblood, 384 Ill.App.3d at 215). It is clear from the record that trial counsel discussed "at great length" defendant's decision not to testify. "Thus, in the instant case, defendant's decision not to testify must be viewed as a strategy with which he agreed." Youngblood, 384 Ill.App.3d at 235-36.

         ¶ 40 In People v. Smith, 176 Ill.2d 217, 234 (1997), the supreme court noted that the vast majority of states have held that "a defendant's waiver of his right to testify is presumed if, as in the present case, he fails to testify or notify the court of his desire to do so." Id. at 234. In the instant case, we need not presume waiver as the court did in Smith. Here there was an on-the-record discussion regarding defendant's decision not to testify. There is nothing in the record that shows that at any time defendant told his lawyer that he wanted to testify despite advice to the contrary. People v. Brown, 54 Ill.2d 21, 24 (1973). We cited Brown in Youngblood for the proposition that "[w]hen a defendant's postconviction claim that his trial counsel was ineffective for refusing to allow that defendant to testify is dismissed, the reviewing court must affirm the dismissal unless, during the defendant's trial, the defendant made a contemporaneous assertion *** of his right to ...

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