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People v. Shaw

Court of Appeals of Illinois, First District, Fourth Division

June 20, 2019

GERMAINE SHAW, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 00 CR 2316 Honorable Mary Margaret Brosnahan, Judge, presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Ellis concurred in the judgment and opinion.


          McBRIDE, JUSTICE

         ¶ 1 Defendant Germaine Shaw appeals the trial court's order granting the State's motion to dismiss his postconviction petition for relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contends that the trial court erred in dismissing his petition because he made a substantial showing of actual innocence when he presented an affidavit averring that the deceased victim had previously admitted to misidentifying defendant and had named another man as the offender.

         ¶ 2 The record shows that defendant was charged by information with home invasion and aggravated criminal sexual assault under case No. 00 CR 2316, and home invasion under case No. 00 CR 2317, for offenses involving victim M.J., occurring in Chicago on or about December 22, 1999. Defendant was also charged by indictment with home invasion under case No. 00 CR 1799, for a separate offense involving victim Barbara Dooley, occurring in Hoffman Estates, Illinois, on or about August 4, 1999.

         ¶ 3 At a pretrial hearing on March 21, 2002, defendant indicated to the court that he had decided to enter a guilty plea. However, after hearing the assistant state's attorney (ASA) recite the factual bases for the offenses, defendant denied committing them and stated he wanted to go trial. The trial judge confirmed that defendant did not wish to plead guilty, and continued the case for hearing on defendant's motion to suppress statements.

         ¶ 4 When the case was back on the court call one week later, defendant asked to address the court. Defendant apologized for his "indecisiveness about the decision," and the judge told defendant that there was "no need to apologize." Defendant continued:

"It's just that when [the ASA] began, you know, going over the facts of the case, it kind of freaked me out because I mean they [were] making me sound like a monster, and I assure you [Y]our Honor that I'm no monster. I'm just a person that was dealing with controlled substances. And I really don't even remember the incidents in question. But now all of a sudden I hear that she's dead. My biggest regret is that I never got a chance to apologize to her for the things I may or may not have committed against her. That I place myself on the mercy of the court that you can at least come down to something that's a little bit more reasonable."

         ¶ 5 The trial judge then stated that, for that acts that occurred, the plea offer was reasonable and was as low as it could go. "It's up to you if you wish to do this," the court continued. Defendant agreed to plead guilty and the trial judge admonished him that there were "two informations and one indictment" to which he was pleading guilty. The trial judge meticulously reviewed the charges for each of the offenses involving both victims, M.J. and Dooley, and defendant confirmed that he was pleading guilty to those offenses. The judge then reviewed the possible penalties for the offenses and asked defendant whether, knowing the possible penalties, he still wished to plead guilty. Defendant indicated that he did.

         ¶ 6 The judge then asked defendant if he understood that by pleading guilty, he was giving up his right to plead not guilty, and to force the State to prove his guilt beyond a reasonable doubt. Defendant stated that he did. Defendant also acknowledged that he understood the meaning of "a jury trial" and that he was giving up his right to a jury trial. Defendant executed a written jury waiver, and agreed that it was his signature on the waiver form. Defendant further acknowledged that he was giving up his rights to "see and hear all [the] State's witnesses testify against [him], *** to have [his] attorney ask questions of those witnesses, *** to present evidence on [his] own behalf including [his] own testimony, or *** [to] remain silent at trial and [his] silence would not be used against [him]." Defendant agreed that he was pleading guilty "of [his] own free will," that "no one [wa]s forcing [him] to plead guilty" and that he was not "under the influence of any drugs or alcohol."

         ¶ 7 The ASA then recited the factual basis for defendant's plea. For "case [Nos.] 00-CR-2316 and 2317," the factual basis established that, around midnight on December 22, 1999, defendant knocked on the door of the victim, 76-year-old M.J., and indicated he needed to make a phone call. When M.J. allowed him inside, defendant pushed M.J. to the floor and fled from the residence with her VCR. Shortly thereafter, defendant returned to M.J.'s residence, knocked on the door, and identified himself as a police officer. When M.J. opened the door, defendant forced his way into the residence. Defendant threw M.J. on her bed, and rubbed his penis against her vagina in an attempt to penetrate her. After several attempts at penetration, defendant stopped and left the residence with M.J.'s television. M.J. suffered cuts and bruises from the attacks. She identified defendant in a lineup, and defendant later confessed to the police and an ASA, and signed a written confession.

         ¶ 8 For case No. 00 CR 1799, the ASA stated that the evidence would show that defendant pushed his way into the Hoffman Estates home of 48-year-old Barbara Dooley, "held a sharp pronged tool and took Ms. Dooley's car and money from her." Defendant was arrested driving Dooley's car, was identified in a lineup, and gave a handwritten statement.

         ¶ 9 Defense counsel "agree[d] that would be the testimony," and the trial judge accepted defendant's guilty plea. Defendant was then sentenced according to the plea agreement, to 28 years' imprisonment for aggravated criminal sexual assault and 6 years' imprisonment for home invasion against M.J. in case No. 00 CR 2316, to be served consecutively, and to 6 years' imprisonment for each home invasion offense in case Nos. 11 CR 2317 and 00 CR 1799 (against M.J. and Dooley, respectively), to be served concurrently with the sentences in case No. 00 CR 2316.

         ¶ 10 Defendant did not file a direct appeal and instead filed a pro se motion to withdraw his plea three years later in 2005. He argued he was taking psychotropic drugs during the proceedings and that defense counsel was ineffective for failing to request a fitness examination. The trial court denied defendant's motion because it was not filed within 30 days of sentencing. On appeal from that order, this court granted counsel's motion to withdraw and dismissed the appeal. See People v. Shaw, No. 1-05-2073 (Feb. 27, 2006) (order).

         ¶ 11 On August 7, 2007, defendant filed in the trial court a pro se motion to reconsider or reduce his sentence, arguing that his sentence should be reduced because his "DNA was not found in the sexual assault." The court denied his motion to reconsider. On February 1, 2010, defendant filed a section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2010)), asserting that mandatory supervised release (MSR) terms are unconstitutional and his sentence was void because he was not informed of the MSR term. The trial court dismissed his petition.[1]

         ¶ 12 On February 28, 2013, defendant filed a pro se postconviction petition under the Act, arguing that (1) police officers brutalized him until he signed a "false confession," (2) his attorney was ineffective for threatening to withdraw as counsel unless he pleaded guilty, and his plea was therefore involuntary, and (3) newly discovered evidence supported his claim of actual innocence. Specifically, defendant alleged that in February 2013, Andrew Coe informed him that M.J. admitted to Coe that she identified the wrong person as her attacker.

         ¶ 13 In support of his petition, defendant attached a notarized affidavit from Coe, dated February 19, 2013. Coe averred that, on December 23, 1999, his grandmother's friend, M.J., told him that she had been "assaulted and strong armed of several belongings" by "Anthony Benjamin," whom she previously paid to do work around her house. M.J. told Coe that, after the incident, she was transported to the police department and "coerced to pick some gentlem[a]n out of a lineup that she never saw or knew," and the officers forced her to pick someone who "wasn't the perpetrator." Coe further averred that M.J. "express[ed] grief" for defendant but her family pressured her not to "correct the mistake." Coe intentionally avoided involvement in defendant's case but eventually decided to "come forward" because he felt it was his "duty as a born again Christian to seek justice for both victims." Coe learned defendant's name by sitting in the court hearings on this matter, was "sure" that M.J. would "proudly attest that all the information in [his] affidavit is 100% true if she's called to testify," and asserted that M.J. "is just being pressured by her family not to [testify] so [Coe is] her voice."

         ¶ 14 Defendant also attached his own notarized affidavit. He averred that, after being arrested on December 22, 1999, two police officers "smacked, punched [him] in the face and kicked [him] in the genitals" and threatened to have him stabbed in Cook County jail if he reported the incident. The officers, whose names he did not remember, instructed him to sign a statement drafted by an ASA, and he signed it because he feared for his life. Defendant further averred that, in March 2002, his attorney threatened to withdraw if he did not plead guilty. She told defendant that he "had no choice or defense and that if [defendant] proceeded to trial that [he] was going to lose."

         ¶ 15 The trial court advanced defendant's petition and appointed the public defender's office to represent him. On April 16, 2015, the State filed a motion to dismiss, arguing that defendant's postconviction petition was untimely and his actual innocence claim was uncorroborated. The State further argued that defendant's claim regarding police brutality was waived when he pleaded guilty, and he failed to demonstrate ineffective assistance of counsel where his plea was knowing and voluntary.

         ¶ 16 Following arguments, the court granted the State's motion to dismiss defendant's petition. The court found that defendant's coerced confession claim was untimely under the Act and, in any event, he waived the claim by pleading guilty. Further, the court concluded that defendant's ineffective assistance of counsel claim was also untimely and rebutted by the record, which showed he pled guilty of his own free will. Finally, the court found that defendant failed to make a substantial showing of a constitutional violation based on actual innocence because the newly discovered evidence set forth in his petition was inadmissible hearsay and, therefore, would not change the result of a trial. This appeal followed.

         ¶ 17 On appeal, defendant does not challenge the trial court's dismissal of his claims relating to his confession and plea due to ineffective assistance of trial counsel. Rather, he contends only that the trial court erred by dismissing his petition where he made a substantial showing of actual innocence by attaching Coe's affidavit, which alleged that M.J. admitted to falsely identifying defendant as the offender.

         ¶ 18 The Act provides for a three-stage process by which a defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. People v. Beaman, 229 Ill.2d 56, 71 (2008). At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012). If the petition is not dismissed within 90 days at the first stage, counsel is appointed and the petition advances to the second stage. Id. § 122-2.1(a), (b).

         ¶ 19 The instant case involves the second stage of postconviction proceedings, during which the dismissal of a petition is warranted only when the allegations in the petition, liberally construed in light of the original trial record, fail to make a substantial showing of a constitutional violation. People v. Hall, 217 Ill.2d 324, 334 (2005). At this stage, "all well- pleaded facts that are not positively rebutted by the trial record are to be taken as true." People v. Pendleton, 223 Ill.2d 458, 473 (2006). The defendant "bears the burden of making a substantial showing of a constitutional violation." Id. We review de novo the trial court's dismissal of defendant's postconviction petition without an evidentiary hearing. Pendleton, 223 Ill.2d at 473.

         ¶ 20 To succeed on a claim of actual innocence, a petitioner must present evidence that is (1) newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that it would probably change the result on retrial. Coleman, 2013 IL 113307, ¶ 96. Evidence is newly discovered if it was discovered after trial and the defendant could not have discovered it sooner through due diligence. People v. Ortiz, 235 Ill.2d 319, 334 (2009).

         ¶ 21 Initially, we note that this case presents a unique situation, different from the more typical postconviction petition following a defendant's conviction after a trial. Here, defendant did not have a trial on the charges, and instead chose to plead guilty. Accordingly, we do not have a trial record against which to compare defendant's proffered evidence. Moreover, defendant did not plead guilty to a single offense, but he pleaded guilty in a single plea agreement to three charging instruments involving two different victims. However, defendant's proffered evidence in his postconviction petition relates only to the offenses against one victim-M.J.-and he makes no argument regarding his innocence of the offense involving the other victim-Dooley.

         ¶ 22 Based on the above and following oral argument in this case, this court entered an order directing the parties to file supplemental briefs regarding two issues: (1) the impact, if any, of the fact that defendant pleaded guilty to multiple offenses involving two victims, where his postconviction actual innocence claim relates only to offenses against one of the two victims; and (2) what this court should consider in determining whether proffered evidence meets the test for actual innocence when a ...

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