Opinion
3-11-0277
01-07-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG HARVEY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 10th Judicial Circuit,
Peoria County, Illinois,
Appeal No. 3-11-0277
Circuit No. 05-CF-442
Honorable
Scott Shore,
Kevin R. Galley,
Michael E. Brandt,
Glenn H. Collier,
Judges, Presiding.
JUSTICE delivered the judgment of the court.
Justices Schmidt and Holdridge concurred in the judgment.
ORDER
¶ 1 Held: Trial court properly dismissed defendant's postconviction petition alleging ineffective assistance of trial counsel because claims were waived for failure to raise on direct appeal but erred in imposing a duplicate DNA sample requirement and analysis fee. ¶ 2 Defendant Craig Harvey filed a postconviction petition alleging ineffective assistance of trial counsel based on counsel's failure to secure Harvey's alibi witness. The State filed a motion to dismiss, which the trial court granted. Harvey appealed.
¶ 3 FACTS
¶ 4 Defendant Craig Harvey was indicted for first degree murder, aggravated battery with a firearm, unlawful possession of a weapon by a felon, and aggravated discharge of a firearm. 720 ILCS 5/9-1(a)(1), (2), 12-4.2(a)(1), 24-1.1(a), 1.2(a)(2) (West 2004). The charges arose from a May 2005 shooting. Harvey sought a jury trial, and in preparation for trial, the State subpoenaed 14 witnesses. The defense did not subpoena any witnesses. At a July 2005 pretrial conference, defense counsel sought a continuance, explaining she was experiencing difficulty in speaking to lay witnesses. The continuance was granted over Harvey's objection. On August 18, 2005, four days before the trial was scheduled to begin, defense counsel filed a notice of alibi defense, indicating that Harvey's girlfriend, Tonya Jackson, would testify he was not in the area of the shooting when it occurred. Defense counsel presented the defense's witness list, which indicated Jackson lived in Peoria. Defense counsel did not subpoena Jackson. ¶ 5 On August 22, 2005, the date set for trial, defense counsel told the trial court there were no further issues and the defense was ready for trial. The State requested and was granted a continuance, over Harvey's objection. At an August 31 pretrial conference, defense counsel again stated it was prepared for trial, and that there were no pending motions or outstanding discovery issues. On September 12, the re-scheduled trial date, defense counsel stated she was ready to proceed but requested that jury selection not begin until the following morning. Before jury selection began the next day, defense counsel informed the trial court that the alibi witness had relocated to Atlanta and that Harvey wished to proceed with the trial in spite of the witness's unavailability. The trial court questioned Harvey about the situation and admonished him that proceeding forward without the witness could damage his alibi defense. ¶ 6 The trial commenced. Kennica King testified for the State. She and Harvey dated for six years and had a daughter together. On the night the shooting took place, King went to several nightclubs with her aunt, and after returning home around 5 a.m., walked over to see her cousin, who lived nearby. An hour later, she was returning home when an officer stopped her, told her there had been a shooting by her house, and drove her home. King was taken to the police station, where she made a video. King did not remember making the statements on the video because she was intoxicated at the time. The video was played for the jury for impeachment purposes. On the video, King made the following statements. On May 1, she had been out "clubbing" with John Brown. They were in the bedroom together when Harvey kicked open the back door. Harvey and John began arguing and the argument escalated into a fistfight in the yard. Clifton Brown and Salathio Brown arrived and broke up the fight. Harvey punched a window and walked off. King also left, but saw Harvey returning to her house. She heard gunshots and screaming. ¶ 7 John Brown testified. He was with King in her bedroom when he heard breaking glass and kicking at the back door. He and Harvey argued and engaged in a physical fight, which was broken up by his younger brother, Salathio, who had arrived with their cousin, Clifton. Harvey fled and John, Salathio, and Clifton walked to Clifton's car. Harvey returned less than two minutes later and began shooting at the car. John was shot in the waist and leg. Salathio Brown testified. When he and Clifton arrived at King's house to meet John, John and Harvey were fighting in the yard. Harvey said he was going to get his gun and ran to the alley. He, John and Clifton ran to Clifton's car. Harvey reappeared and began shooting. Salathio, who was in the back seat, ducked to avoid the bullets but he could feel Clifton's body jerking as Clifton was hit by gunfire. ¶ 8 Other witnesses for the State established that Clifton was found outside near King's house and taken to the hospital where he was pronounced dead from multiple gunshot wounds. The parties stipulated that Harvey had a prior felony conviction and was serving a term of mandatory supervised release when the instant offense occurred. The State rested. The sole witness for the defense was a detective who testified that John told him that Harvey was wearing different clothes when he returned from the alley. ¶ 9 The jury found Harvey guilty of first degree murder, aggravated battery with a firearm, and unlawful possession of a weapon by a felon. 720 ILCS 5/9-1(a)(2), 12-4.2(a)(1), 24-1.1(a) (West 2004). Harvey moved for a new trial, and at a hearing on the motion, the trial court asked Harvey if he was satisfied with the performance of defense counsel. Harvey stated he was not and the trial court engaged Harvey in a discussion. The trial court recalled its earlier conversation with Harvey regarding the alibi witness and found that Harvey made the decision not to seek a continuance to secure the witness with full knowledge of the implications. The trial court denied Harvey's motion for a new trial and sentenced him to a 70-year term of imprisonment for first degree murder, to be served consecutively to a 15-year term for aggravated battery with a firearm and concurrently with a 7-year term for unlawful possession of a weapon by a felon. It ordered Harvey submit a deoxyribonucleic acid (DNA) sample and pay a $200 DNA analysis fee. Harvey filed a motion to reconsider his sentence, which the trial court denied. He appealed. ¶ 10 On direct appeal, Harvey argued that he was denied a fair trial when the prosecutor distorted the reasonable doubt standard during closing arguments. This court affirmed his conviction and sentence. People v. Harvey, 3-05-0795 (2007) (unpublished order under Supreme Court Rule 23). In August 2007, Harvey filed a postconviction petition, alleging nine constitutional violations. Counsel was appointed and filed a supplemental postconviction petition, which alleged that defense counsel was ineffective. Harvey argued that his trial counsel failed to subpoena his alibi witness, did not move to suppress John's out-of-court identification of Harvey, and failed to call as a witness a detective who stated Salathio could not identify the shooter. Harvey moved to supplement the petition with his affidavit, which the trial court allowed. In his affidavit, Harvey attested that he told defense counsel that the alibi witness would be moving out-of-state before the new school year started and that defense counsel said she would accommodate Harvey's request for a speedy trial. The State moved to dismiss, and following arguments, the trial court granted the motion. Harvey appealed.
¶ 11 ANALYSIS
¶ 12 On appeal, we consider whether the trial court erred when dismissed Harvey's postconviction petition and when it ordered Harvey to submit a DNA sample and pay a DNA fee. ¶ 13 The first issue is whether the trial court erred when it granted the State's motion to dismiss Harvey's postconviction petition alleging ineffective assistance of counsel. Harvey argues that dismissal of his postconviction petition was in error. He contends that the trial court should have conducted an evidentiary hearing on his claims of ineffective assistance of counsel. Harvey submits that his trial counsel failed to interview or subpoena his alibi witness, which forced him to chose between his speedy trial right and his right to effective assistance of counsel. ¶ 14 The Post-Conviction Act (Act) provides a defendant a means to assert that his conviction was the result of a substantial denial of his constitutional rights. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act creates a three-stage procedure, which begins when the defendant files a postconviction petition in the trial court in which he was convicted. Hodges, 234 Ill. 2d at 9. At the first stage, the trial court examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2007). A petition that does not state the gist of a constitutional claim is dismissed, but if a claim is stated, the petition moves to the second stage, where counsel is appointed for indigent defendants and the State must either answer or move to dismiss the petition. 725 ILCS 5/122-2.1(a)(2), 122-4, 122-5 (West 2007). At this stage, the trial court determines whether the petition makes a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). If it does not, the petition is properly dismissed, but if it does, the petition moves to the third stage, where an evidentiary hearing takes place on defendant's claims. 725 ILCS 5/122-6 (West 2007). This court reviews the second-stage dismissal of a postconviction petition de novo. Coleman, 183 Ill. 2d at 388. ¶ 15 To establish a claim for ineffective assistance of counsel, a defendant must satisfy the two prongs set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must show that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been different had counsel's performance not been deficient. Strickland, 466 U.S. at 687. Defense counsel has a legal and ethical obligation to explore and investigate a client's case. People v. Makiel, 358 Ill. App. 3d 102, 107 (2005). Counsel's failure to investigate, develop a defense, interview witnesses, or subpoena them may constitute ineffective assistance. Makiel, 358 Ill. App. 3d at 107-8. ¶ 16 The State argues that Harvey has waived this issue. Harvey brought a direct appeal in which he argued that the State's improper comments in closing argument denied him a fair trial; this court affirmed on the basis of the plain error doctrine. People v. Harvey, 3-05-0795 (2007) (unpublished order under Supreme Court Rule 23). Harvey maintains that he could not have raised his ineffective assistance claim on direct appeal because it involved matters not of record, including why counsel did not interview or subpoena Harvey's alibi witness. We find that, contrary to Harvey's claims, the record does demonstrate why defense counsel did not present an alibi witness. Defense counsel explained that due to the continuances of the trial date, the witness was unavailable because she had moved out of state. At this point in pre-trial proceedings, Harvey was aware that defense counsel had not subpoenaed the alibi witness and the witness would not be appearing for trial. The trial court admonished Harvey that the witness's absence at trial could negatively impact his alibi defense. ¶ 17 Harvey maintains that the witness was already "lost" by the trial date. However, his refusal to seek a continuance prevented trial counsel from attempting to locate the witness. In his postconviction petition, Harvey does not offer any facts or information that were not available during the trial court proceedings. We thus find that Harvey should have raised the issue on direct appeal, and because he failed to do so, his claim of ineffective assistance of counsel is waived. People v. French, 210 Ill. App. 3d 681, 688 (1991) (issues that could have been waived on direct appeal but are not are waived for postconviction relief). Based on our finding of waiver, we will not address any other arguments Harvey raised regarding the ineffective assistance of counsel claim. Accordingly, we affirm the trial court's dismissal of Harvey's postconviction petition. ¶ 18 The second issue is whether the trial court erred when it ordered Harvey to submit a DNA sample and pay the DNA fee. Harvey argues that the DNA fee imposed by the trial court must be vacated because he had already provided a DNA sample, which was on file at the time of sentencing, and he was not required to submit a second sample. He asks this court to take judicial notice of the Illinois State Police (ISP) public record, which documents that his DNA is currently in the ISP database, and to supplement the record with the ISP report. ¶ 19 Persons convicted of a felony "shall *** be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police." 730 ILCS 5/5-4-3(a) (West 2005). The trial court must impose a $200 assessment fee on any person required to provide a DNA sample. 730 ILCS 5/5-4-3(j) (West 2005). The requirements of section 5-4-3 of the Unified Code of Corrections apply only where the defendant is not currently registered in the DNA database. People v. Marshall, 242 Ill. 2d 285, 303 (2011). We review de novo Harvey's challenge to the imposition of the DNA sample requirement and fee. People v. Price, 375 Ill. App. 3d 684, 697 (2007). ¶ 20 This court takes judicial notice of Harvey's criminal record, which is a public record and includes his prior felony conviction and trial court order requiring him to provide a DNA sample and pay the DNA fee. People v. Schlabach, 2012 IL App (2d) 100248, ¶ 4, fn1 (reviewing court may take judicial notice of public records). Moreover, this court may supplement the record to correct material omissions or inaccuracies. Ill. Sup. Ct. R. 329 (eff. Jan. 1, 2006). We consider the omission of the fact that Harvey's DNA is currently in the database to be material and thus supplement the record with that information. Because Harvey's DNA is in the ISP database, we vacate the portion of the trial court's order requiring Harvey submit a DNA sample and pay the $200 DNA fee. Marshall, 242 Ill. 2d at 303 (vacating portion of trial court order requiring submission of additional DNA sample and payment of analysis fee). ¶ 21 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed in part and reversed in part. ¶ 22 Affirmed in part and reversed in part.