This post examines a recent decision from the Appellate Court of Illinois – Second District: People
v. Perry, 2017 WL 3328365 (2017). The court began the opinion by explaining
that
the trial court properly summarily
dismissed defendant's postconviction petition, which alleged that appellate counsel had been ineffective for failing to argue that the State presented
false testimony to the grand jury: defendant did not demonstrate that the
testimony at issue was even arguably false and, in any event, defendant did not
provide the entirety of the grand-jury testimony and thus we could not
determine that the grand jury, even arguably, would not have indicted him
absent that testimony.
Defendant, Clarence E. Perry, appeals the
trial court's order summarily dismissing his postconviction petition. He
contends that he stated the gist of a meritorious claim that his appellate
counsel was ineffective for not arguing that the State knowingly used false or
misleading testimony to obtain the indictment. . . .
People v. Perry, supra
The Appellate Court went on to explain that
[f]ollowing a bench trial,
defendant was convicted of
two counts of online theft by deception (720 [Illinois Compiled Statutes]5/16–40(b) (West 2012)). At that trial, Tannie Wilson testified that he
owned Wilson Maintenance Company. In April and May 2012, he received two
invoices from Grainger Corp. totaling more than $10,000 for merchandise that he
did not order. Both invoices listed the purchaser as Cheryl Curry. The shipping
address was a Smartstop storage facility, and the e-mail address
was in the name of Edward Johnson. Wilson recognized neither name.
People v. Perry,
supra.
The court then explained what happened next:
After receiving the first invoice,
Wilson called Grainger. Kenneth Boyd, Grainger's loss-prevention specialist,
discovered that the order was placed from Grainger's website. With his
suspicions thus aroused, Boyd noticed that, when the second order came in, the
shipping address was the same storage facility in Cicero as the first order.
Both orders listed the name Cheryl Curry and the e-mail address
edwardjohnson491@yahoo.com. The Internet protocol (IP) address on both forms
was 99.179.146.37.
Boyd contacted Lincolnshire detective
Adam Hyde. They placed a tracking device on one of the boxes shipped with the
second order. Hyde later recovered that device from a box found in the basement
of a Maywood address that Hyde knew was the residence of defendant's brother,
Elgin Perry.
An employee of the storage facility
provided Hyde with information about a rented storage locker, as well as Cheryl
Curry's phone number. Curry said that she picked up the packages for a person
she knew as `Snag.’ From a photographic array, she identified defendant as
`Snag.’
Hyde also requested business records
from AT&T regarding the IP address 99.179.146.37. Based on the information
he received, he obtained a search warrant for 2007 12th Avenue in Maywood. He
executed the warrant with Dean Kharasch, cybercrimes investigator for the Lake
County State's Attorney's office. While there, Kharasch discovered a U–verse
wireless router and an HP laptop. Kharasch learned that the home's Internet
signal was an unsecured wireless signal, meaning that it was not
password-protected. The IP address for the laptop was 99.179.146.37.
People v. Perry,
supra.
The opinion then explains that
Kharasch testified that the wireless
account had been accessed at one time or another by at least 20 different
devices. The homeowner, Jennifer Jackson, recognized only two of those devices,
the laptop and a wireless printer. The other devices that accessed the network
had been used outside the residence. Another indicator that `outside subjects’
were using the wireless connection without the Jackson's authority came from
Hyde, who told Kharasch that someone had told him that `a subject by the
nickname of “Snag” would sit in a vehicle down the street using this witness's
wireless connection.’
In the search-warrant application, Hyde
wrote that, while at the residence, the next-door neighbors approached him and
said that `Snag,’ whom they identified as defendant, frequented the area.
Driving a cream-colored Buick, he would park halfway down the block from the
house. According to the neighbors, `He sits in the car doing something, and
then drives away.’
On cross-examination, defendant asked
Hyde whether `[t]his phantom someone came up to you and told you that Snag
sometimes parks on the block and sits in his car and does something that they
don't know, is that correct?’ Hyde replied, `A gentleman does do that. And a
group of gentlemen said that to us, yes.’
People v. Perry,
supra.
Since this case presented a rather complicated set of facts,
the court went on to outline what happened next:
A consensual search of Elgin Perry's
house revealed that it had no Internet connection. However, an office was set
up in the basement with a computer, some other equipment, and two cell phones.
Hyde returned to Elgin Perry's house later to attempt to speak with defendant.
As Hyde approached, defendant stood up and ran, jumped the fence behind the
house, and ran into an apartment complex.
A former Grainger branch manager
testified that defendant worked for the company for two or three months during
the summer of 2005. During that time, he could have had access to customer
account information.
Curry testified that she met defendant
through a mutual friend. Defendant asked her if she would be willing to rent a
storage locker. She and defendant drove to the facility and she went in and
paid the rent. A week later, she returned to the facility to pick up packages
that Grainger had sent there. She brought them back to Maywood, and defendant
put them in a garage. Approximately a week later, she picked up more packages
from the same location. defendant once again took the packages and put them in
the garage.
People v. Perry,
supra.
The opinion then takes up Perry’s prosecution, explaining
that the
parties stipulated to defendant's
conviction of computer fraud, which was introduced to show common design and
knowledge. The earlier case involved defendant using customer account numbers
to place fraudulent online orders with Grainger. The orders were then shipped
to a storage locker, which was opened in another person's name.
The court found defendant guilty on
both counts and sentenced him to concurrent 12–year prison terms. On direct
appeal, defendant argued that the trial court erred in denying a motion to
dismiss for improper venue. This court affirmed. People v. Perry,
2014 IL App (2d) 130397–U.
Defendant then filed a postconviction petition in which he contended, inter alia, that appellate counsel
was ineffective for failing to argue that his due process rights were violated
when the prosecutor presented false or misleading evidence to the grand jury.
The court summarily dismissed the petition, and defendant timely appeals.
People v. Perry,
supra.
The court then took up the arguments Perry made on appeal,
beginning with his claim that
the court should not have dismissed his
petition summarily, because it stated at least the gist of a claim that
appellate counsel was ineffective. He points out that Hyde told the grand
jury that neighbors said they saw defendant in the neighborhood of the 12th
Avenue home doing something `on a laptop,’
while in his application for a search warrant and at trial, he related that the
neighbors merely saw defendant `doing something.’ Defendant contends that,
given the low threshold presented by the `gist’ standard at the first stage of
postconviction review, it is at least arguable that, had the grand jurors not
been told that defendant was seen with a laptop, they might not have indicted him for crimes of computer fraud, and, thus,
appellate counsel was ineffective for not arguing this issue.
People v. Perry,
supra.
The opinion goes on to explain that
[w]e begin our analysis of this issue
with a brief review of the Post–Conviction Hearing Act (the Act) (725 Illinois Compiled Statutes 5/122–1 et seq. (West 2016)). A proceeding
under the Act is not an appeal of a defendant's underlying conviction. Rather,
it is a collateral attack on the judgment. The purpose of the proceeding is to
resolve allegations that constitutional violations occurred at trial, when
those allegations have not been, and could not have been, adjudicated
previously. To be entitled to postconviction relief, the defendant bears the
burden of establishing a substantial deprivation of federal or state
constitutional rights. People v. Evans, 186 Ill. 2d 83, 89 (1999).
A proceeding under the Act may consist
of three stages. At the first stage, the court independently reviews the
petition to decide if it is `frivolous or is patently without merit.’ 725 Illinois
Compiled Statutes 5/122–2.1(a)(2) (West 2016). If the court reaches this
conclusion, it must dismiss the petition in a written order. 725 Illinois
Compiled Statutes 5/122–2.1(a)(2) (West 2016). A petition is considered `frivolous
or patently without merit only if the allegations in the petition, taken as
true and liberally construed, fail to present the ‘gist of a constitutional
claim.’ People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People
v. Gaultney, 174 Ill. 2d 410, 418 (1996)). The `gist’ standard is `”a low threshold.”’
Id. (quoting Gaultney, 174
Ill. 2d at 418)). To set forth the `gist’ of a constitutional claim, a petition
`need only present a limited amount of detail’ (Gaultney, 174 Ill. 2d at
418) and, thus, need not set forth the claim in its entirety. The petition need
not include `legal arguments or [citations] to legal authority.’ Id.
People v. Perry,
supra.
The court, though, also goes on to explain that
[h]owever, the recognition of a low
threshold does not mean that a pro se petitioner is excused
from providing any factual detail at all surrounding the alleged violation.
Section 122–2 also provides that `[t]he petition shall have attached thereto
affidavits, records, or other evidence supporting its allegations or shall
state why the same are not attached.’ 725 Illinois Compiled Statutes
5/122–2 (West 2016). `The purpose of the ‘affidavits, records, or other
evidence’ requirement is to establish that a petition's allegations are capable
of objective or independent corroboration.’ People v. Hodges, 234
Ill. 2d 1, 10 (2009).
A claim of ineffective assistance of
appellate counsel is cognizable in a postconviction petition. To successfully
state such a claim, a defendant must show that the failure to raise an issue
was objectively unreasonable and that the decision prejudiced the defendant. People
v. Easley, 192 Ill. 2d 307, 328–29 (2000). Appellate counsel is not
obligated to brief every conceivable issue on appeal, and it is not
incompetence of counsel to refrain from raising issues that, in his or her
judgment, are without merit, unless counsel's appraisal of the merits is
patently wrong. Accordingly, unless the underlying issue is meritorious,
the defendant has suffered no prejudice from counsel's failure to raise it on
appeal. Id.
People v. Perry,
supra.
The Court went on to explain that
Defendant argues that appellate counsel
should have argued that the prosecution presented misleading evidence to the
grand jury. We disagree. Initially, Hyde's statements are not fundamentally
inconsistent. `Doing something on a laptop’ is `doing something,’ so the
statements are consistent. Defendant's entire argument, then, is based on the
fact that Hyde omitted the detail `on a laptop’ from the search-warrant
application. Why he did so is unknown. Perhaps he simply forgot. However, his
failure to include this detail in the warrant application does not even
arguably show that the reference in his grand-jury testimony to a laptop was
invented.
Defendant makes much of the fact that
Hyde did not testify at trial that the neighbors told him that defendant was
using a laptop. However, as the State points out, the prosecutor did not ask
Hyde about the statement at all on direct examination (perhaps because it was
hearsay). Hyde's only mention of it consisted of answering on cross-examination
defendant's leading questions, which in turn were based on the warrant
application.
Interestingly, Kharasch testified that
Hyde told him that neighbors said that Snag `would sit in a vehicle down the
street using this witness's wireless connection.’ From this version of the
statement, it is at least inferable that the neighbors did in fact tell Hyde
that they saw defendant with a computer. Alternatively, if what the neighbors
told Hyde was that they saw defendant using Williams's wireless connection, it
was reasonable for Hyde to infer that he was using a laptop to do so
People v. Perry,
supra.
The court then explains that
[i]n any event, even assuming that
Hyde's statement about the laptop was utterly false, the ultimate question is
to what extent the statement influenced the grand jury's deliberations. `”The
due process rights of a defendant may be violated if the prosecutor
deliberately or intentionally misleads the grand jury, uses known perjured or
false testimony, or presents other deceptive or inaccurate evidence.”’ People
v. Oliver, 368 Ill. App. 3d 690, 694 (2006) (quoting People v.
DiVincenzo, 183 Ill. 2d 239, 257 (1998)). However, to permit the
dismissal of an indictment, the denial of due process must be unequivocally
clear and the prejudice must be actual and substantial. Id. at
694–95.
In Oliver, on which defendant
relies, we said that `it seems fairly self-evident’ that a due-process
violation based on prosecutorial misconduct before a grand jury is actually
prejudicial only if without it the grand jury would not have returned an
indictment. Id. at 696–97. We cannot make that critical
determination here, because we do not know what other evidence the grand jury
heard. Defendant's petition includes only the page containing the allegedly
offending statement. Without knowing the rest of the evidence that the grand
jury heard, we cannot assess the impact of Hyde's statement on the jury's
deliberations. The State argues that, if the evidence was similar to that
presented at trial, the grand jury had ample other evidence on which to base an
indictment. However, this requires us to speculate, and we need not do so.
People v. Perry,
supra.
The court went on to explain that
[a]s noted, the Act requires that a
petition shall have attached thereto `affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached.’ 725
ILCS 5/122–2 (West 2016). Defendant argues that, to state the gist of a claim,
it need only be `arguable’ that the alleged violation prejudiced him. However,
the `arguable’ claim must still have factual support. A reasonably clever
defendant can always construct a hypothetical argument, but the purpose of the
evidentiary-support requirement is to demonstrate that the critical allegations
underlying the argument can be independently corroborated. Hodges,
234 Ill. 2d at 10. Thus, the record does not demonstrate that any alleged
violation prejudiced defendant, i.e., that the grand jury would not
have indicted him but for the challenged statement.
The judgment of the circuit court of
Lake County is affirmed. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal. 55 ILCS
5/4–2002(a) (West 2016); see
also People v. Nicholls,
71 Ill. 2d 166, 178 (1978).
People v. Perry,
supra.
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