People v. Brown

NOTICE 2023 IL App (4th) 220975-U

This Order was filed under

FILED

Supreme Court Rule 23 and is August 3, 2023

NO. 4-22-0975

not precedent except in the Carla Bender

limited circumstances allowed 4th District Appellate

under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

v. ) Winnebago County

PATRICK IVAN BROWN, ) No. 01CF2720

Defendant-Appellant. )

) Honorable

) Joseph G. McGraw,

) Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court.

Justices Zenoff and Lannerd concurred in the judgment.

ORDER

¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to

withdraw as counsel and affirmed the circuit court’s judgment, as no issue of

arguable merit could be raised on appeal.

¶2 Defendant, Patrick Ivan Brown, appeals from the circuit court’s dismissal of his

motion for leave to file a successive postconviction petition. On appeal, the Office of the State

Appellate Defender (OSAD) moves to withdraw as counsel on the ground no issue of arguable

merit can be raised. Defendant has filed a response to OSAD’s motion. We grant OSAD’s

motion and affirm the circuit court’s judgment.

¶3 I. BACKGROUND

¶4 The appellate court has set forth the underlying facts of this case in defendant’s

prior appeals. See People v. Brown, No. 2-04-0323 (2006) (unpublished order under Illinois

Supreme Court Rule 23); People v. Brown, 2014 IL App (2d) 121310-U; People v. Brown, 2016

IL App (2d) 141058-U (unpublished summary order under Illinois Supreme Court Rule 23(c));

People v. Brown, 2017 IL App (2d) 160211-U (unpublished summary order under Illinois

Supreme Court Rule 23(c)). Accordingly, we will recite only those facts necessary to resolve the

issues presented in this appeal.

¶5 On February 6, 2002, defendant and Brian Johnson were charged by superseding

indictment with three counts of first degree murder. 720 ILCS 5/9-1(a)(2), (a)(3) (West 2000).

Count II alleged the murder was accompanied by exceptionally brutal or heinous behavior

indicative of wanton cruelty. 730 ILCS 5/5-5-3.2(b)(2) (West 2000). Before trial, defense

counsel filed a motion to suppress statements defendant made to police.

¶6 On April 5, 2002, the circuit court conducted a hearing on defendant’s motion to

suppress. The State presented the testimony of Detective Paul Swanberg. Swanberg indicated on

October 20, 2001, he and Detective Diane Krigbaum interviewed defendant about the ongoing

investigation of the murder of Britton Tullock. According to Swanberg, during the interview,

defendant had no observable issues while walking or speaking to the detectives, nor did

defendant appear to be under the influence of any drugs. Defendant provided detectives with his

biographical information and arrest history. When asked if defendant had ever been advised of

his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)), defendant answered “he [had]

not but he was aware of them, [and] understood what they were.” Swanberg asked defendant if

he could read, write, and understand English. Defendant responded that he could. Swanberg then

provided defendant with a “rights form” prepared by the Rockford Police Department detailing

his Miranda rights. Defendant read a portion of the rights form aloud. Swanberg noted defendant

did not slur his speech when speaking. Thereafter, Swanberg read aloud to defendant four

sentences from the rights form outlining his rights. Defendant verbally indicated he understood

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those rights and initialed each of those sentences. Defendant then read aloud a sentence stating,

“I understand these rights,” he indicated he did in fact understand his rights and that he would

speak with the detectives, and he signed the bottom of the rights form. Swanberg testified

defendant never indicated he had any condition that would impair his ability to “comprehend

what was going on.”

¶7 Following argument from the parties, the circuit court denied defendant’s motion

to suppress statements.

¶8 On November 18, 2003, the circuit court conducted a five-day jury trial. The State

presented the testimony of Detective Diane Krigbaum. Krigbaum testified that on October 20,

2001, she and Swanberg met with defendant to discuss the ongoing murder investigation of

Tullock. During the interview, defendant appeared lucid, provided detectives with information

about his background, and indicated he understood his rights. Defendant told detectives “he was

sorry that it happened” and defendant had “tried to knock out [Tullock] but that [Tullock] was

strong and was making gestures as if he was reaching inside his coat, and [defendant] thought

[Tullock] possibly had a gun.” Defendant provided a statement to detectives, which Swanberg

typed. After the statement was completed, Swanberg read the statement aloud to defendant and

provided him with an opportunity to make any necessary corrections. Krigbaum testified the only

change defendant wished to make was to correct a spelling error on the second page of the

written statement. Defendant initialed each paragraph and signed each page of the four-page

written statement, indicating he acknowledged it was his statement and it was true.

¶9 On cross-examination, Krigbaum stated defendant was cooperative and

responsive during questioning. Defendant did not appear disoriented and spoke calmly

throughout the process.

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¶ 10 The jury found defendant guilty of first degree murder (720 ILCS 5/9-1(a)(2)

(West 2000)) and that the murder was accompanied by exceptionally brutal or heinous behavior

indicative of wanton cruelty. 730 ILCS 5/5-5-3.2(b)(2) (West 2000).

¶ 11 On January 23, 2004, the circuit court conducted a sentencing hearing. The parties

stipulated to the admission of a report written by Megan Smick, a licensed clinical psychologist.

Smick’s report detailed an incident in 1995 in which defendant was struck in the head with a

cinder block, fracturing his skull and causing brain hemorrhaging. Defendant had been diagnosed

with major depression and used cocaine daily to alleviate his headaches. Smick noted defendant

had “many cognitive strengths,” inter alia, “attention, concentration and mental processing.”

Defendant also had some cognitive weaknesses, including impaired visual perception and

visual-motor integration. Smick indicated defendant’s cognitive weaknesses, lack of impulse

control, depression, and anger management issues were consistent with his brain injury.

Following argument from the parties, the court sentenced defendant to life imprisonment.

¶ 12 On direct appeal, defendant argued the circuit court erred in allowing certain

autopsy photographs into evidence and claimed prosecutorial misconduct during closing

arguments. The appellate court affirmed. See People v. Brown, No. 2-04-0323 (2006)

(unpublished order under Illinois Supreme Court Rule 23).

¶ 13 In 2007, defendant filed a pro se postconviction petition pursuant to the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) arguing, in part, trial

counsel prevented defendant from testifying at trial. Additionally, citing Smick’s report,

defendant argued trial counsel was ineffective for failing to raise defendant’s unfitness to stand

trial. The circuit court appointed counsel and advanced defendant’s petition to second-stage

proceedings. Attached to the amended postconviction petition was defendant’s signed affidavit,

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in which defendant recalled a discussion with his trial attorneys about his right to testify.

According to defendant, when trial counsel met with him to prepare for his upcoming trial

testimony, defendant could not “remember what had happened,” and that he had “lost it.”

Defendant told trial counsel he was “hear[ing] things” and panicked during the forensic

pathologist’s testimony.

¶ 14 The circuit court dismissed defendant’s amended postconviction petition, noting

Smick’s report did not create a bona fide doubt as to defendant’s fitness to stand trial. Moreover,

defendant’s claim regarding his right to testify was rebutted by the court’s admonishments

during trial. The appellate court affirmed, finding the circuit court’s admonishments positively

rebutted defendant’s claims. See Brown, 2014 IL App (2d) 121310-U, ¶ 11.

¶ 15 In 2014, defendant filed a motion for leave to file a successive postconviction

petition. Defendant realleged his prior claims of ineffective assistance of trial counsel and

alleged ineffective assistance of appellate counsel on direct appeal, as well as postconviction

counsel. The circuit court denied defendant’s motion to file a successive postconviction petition,

finding, “The petition just rehashes matters previously litigated in [defendant’s] first

post-conviction petition, and it alleges claims that are not of a constitutional nature.” On appeal,

OSAD filed a motion to withdraw, which the appellate court granted. See Brown, 2016 IL App

(2d) 141058-U (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 16 On September 30, 2015, defendant filed a second motion for leave to file a

successive postconviction petition. Defendant alleged new evidence had been discovered and

attached an affidavit from Johnny Borizov. In his affidavit, Borizov stated he observed Tullock

attempting to sell defendant revolvers on various occasions. The circuit court denied defendant’s

motion for leave to file a successive postconviction petition, concluding defendant failed to

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“demonstrate cause or prejudice, or actual innocence.” On appeal, OSAD moved to withdraw,

which the appellate court granted. See Brown, 2017 IL App (2d) 160211-U (unpublished

summary order under Illinois Supreme Court Rule 23(c)).

¶ 17 On July 21, 2022, defendant filed a motion for leave to file, for the third time, the

successive postconviction petition at issue in the present case. Defendant alleged he suffered

from seizures that invalidated the Miranda waiver preceding his confession and rendered him

unfit to stand trial. Specifically, defendant maintained his due process rights were violated

because he was allowed to proceed in this diminished state. Defendant acknowledged he “knew

he had grand mal seizures back during [the] pre-trial discovery stage.” However, in 2013, he

learned he also suffered from partial complex seizures. Defendant discovered the symptoms of

partial complex seizures during discovery in a civil lawsuit. Thus, he argued, he could not have

raised the issue prior to the discovery disclosure. Defendant reasoned he had a seizure “[j]ust

prior to or during” the interrogation because he could not recall the interrogation.

¶ 18 Attached to his motion, defendant provided his own affidavit and an affidavit

from fellow inmate Steven Zirko. The affidavits averred defendant could not retain information.

Defendant also attached various medical records. The records showed defendant had a history of

seizures following his brain injury in 1995. In 1996, defendant reported a “ ‘post trauma

epileptic’ attack,” which lasted approximately 20 minutes and was more intense than previous

seizures. In an Illinois Department of Corrections outpatient progress note, defendant reported a

recent “mild” seizure and characterized his seizures as “complex partial seizures.” A written

notation appears to indicate defendant “hasn’t had grand mal [seizures] since 1998.” A report

from Pontiac Correctional Center medical director Dr. Andrew Tilden indicated defendant’s

seizures are “well controlled on Keppra,” an anticonvulsant medication. Dr. Tilden’s report also

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provided a description of postictal states. A postictal state, Dr. Tilden asserted, “is the period that

begins when a seizure subsides and ends when the patient returns to his baseline.” Postictal state

symptoms include “poor attention and concentration, lowered interactive and verbal skills and

poor short-term memory.”

¶ 19 On August 4, 2022, the circuit court denied defendant leave to file a third

successive postconviction petition, concluding defendant failed to demonstrate cause, prejudice,

or actual innocence. The court asked the State to prepare a written order, which the State agreed

to do. Defendant filed a motion to reconsider, which the court denied on September 1, 2022. The

State again prepared a written order at the court’s request, denying defendant’s motion to

reconsider “for the reasons stated on the electronic record.” The record indicates defendant sent a

letter to the Winnebago County circuit clerk in October 2022, asking if the clerk received his

motion to reconsider. Defendant then filed a motion for leave to file a late notice of appeal,

which this court granted.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 OSAD argues the appeal of this case presents no potentially meritorious issues for

review. Specifically, OSAD identified the following potential issues for review: (1) whether

defendant’s petition arguably made a prima facie showing of cause and prejudice; (2) whether

defendant’s claims are barred by res judicata; and (3) whether the State improperly offered

substantive input at the leave-to-file stage of proceedings.

¶ 23 A. Prima Facie Showing of Cause and Prejudice

¶ 24 OSAD contends no meritorious argument can be made the circuit court erred in

denying defendant leave to file a successive postconviction petition. We agree.

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¶ 25 The Act provides a means to collaterally attack a criminal conviction based on a

substantial denial of a defendant’s state or federal constitutional rights. People v. Hodges, 234 Ill.

2d 1, 9, 912 N.E.2d 1204, 1208 (2009). A proceeding under the Act is a collateral proceeding

and not an appeal from the defendant’s conviction and sentence. People v. Beaman, 229 Ill. 2d

56, 71, 890 N.E.2d 500, 509 (2008). Issues adjudicated on direct appeal or a previous collateral

proceeding are barred by res judicata, and issues that could have been raised but were not are

forfeited. People v. Tate, 2012 IL 112214, ¶ 8, 980 N.E.2d 1100. The Act contemplates the filing

of only one postconviction petition. People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d

609, 619 (2002). A defendant must obtain leave from the circuit court to file a successive petition

under the Act. 725 ILCS 5/122-1(f) (West 2022).

¶ 26 To obtain leave, a defendant must do one of the following: (1) show cause and

prejudice for the failure to raise a claim in his earlier petition or (2) show a “ ‘fundamental

miscarriage of justice’ *** [which] requires a [defendant] to make a persuasive showing of

‘actual innocence.’ ” People v. Prante, 2023 IL 127241, ¶ 59 (quoting People v. Taliani, 2021 IL

125891, ¶ 55, 174 N.E.3d 503). Defendant’s motion does not make a claim of actual innocence.

¶ 27 Showing cause requires identifying an objective factor that impeded the

defendant’s ability to raise the claim in the initial postconviction petition. People v. Moore, 2023

IL App (4th) 210245, ¶ 45. Showing prejudice requires the defendant to articulate how a “claim

not raised during the initial proceeding so infected the trial that the resulting conviction or

sentence violated due process.” Moore, 2023 IL App (4th) 210245, ¶ 45. “[F]or a defendant to

obtain leave to file a successive postconviction petition, both prongs of the cause-and-prejudice

test must be satisfied.” (Emphasis added.) People v. Ryburn, 2019 IL App (4th) 170779, ¶ 19,

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134 N.E.3d 348. We review de novo the denial of a motion for leave to file a successive

postconviction petition. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38, 38 N.E.3d 1256.

¶ 28 OSAD contends, even assuming, arguendo, defendant could show cause

regarding how his seizure disorder prevented him from waiving his Miranda rights, he cannot

demonstrate prejudice. OSAD notes the record does not support defendant’s claim that he had a

partial complex seizure based on his failure to remember questioning during the interrogation.

We agree.

¶ 29 While defendant claims he had a partial complex seizure based on his failure to

later remember police questioning during his interrogation, he has failed to show he in fact had a

seizure during the interview with police, or that he could not remember police questioning

during, or soon after, the interview. In fact, defendant was described as “very alert, talkative,

[and] cooperative” during the initial interview with detectives. Moreover, defendant has provided

no expert evidence to show he suffered a seizure during the interrogation. Rather, the record

reveals defendant had been using cocaine prior to the interrogation and had a history of memory

loss stemming from the brain injury he sustained in 1996. The uncontradicted testimony of

Krigbaum indicated defendant did not appear impaired and provided a detailed statement

regarding the murder. Prior to the interview with police, defendant read parts of the rights form

aloud and signed it, indicating he understood his Miranda rights. In addition, upon reviewing his

written statement, defendant pointed out a spelling error within the statement. Accordingly, we

find defendant cannot demonstrate prejudice. Because defendant cannot demonstrate an arguable

showing of prejudice, the circuit court properly denied him leave to file a successive

postconviction petition. See People v. Guerrero, 2012 IL 112020, ¶ 15, 963 N.E.2d 909 (holding

both prongs of the cause-and-prejudice test must be satisfied to obtain leave).

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¶ 30 B. Res Judicata

¶ 31 OSAD further contends defendant’s claim he was in a “diminished mental state”

during court proceedings is barred by res judicata.

¶ 32 Proceedings under the Act are collateral in nature and are subject to principles of

res judicata, meaning issues already raised and decided on direct appeal or in a prior proceeding

are barred. People v. Barrow, 195 Ill. 2d 506, 529, 749 N.E.2d 892, 907 (2001). The Act “was

not intended to be used as a device to obtain another hearing upon a claim of denial of

constitutional rights where there has already been a full review of the issues raised ***. This is

so, even though the present petition attempts to change the character of the questions previously

advanced and decided, by describing them in different constitutional terms.” (Internal quotation

marks omitted.) Barrow, 195 Ill. 2d at 529. A defendant cannot avoid res judicata by adding

additional allegations encompassed by a previously adjudicated issue. People v. Palmer, 352 Ill.

App. 3d 877, 884, 817 N.E.2d 129, 136 (2004).

¶ 33 Here, defendant’s claim he was in a “diminished mental state” during the circuit

court proceedings is barred by res judicata. Defendant has previously raised similar claims on

appeal. See Brown, 2016 IL App (2d) 141058-U, ¶ 7 (concluding, based on Smick’s report and a

review of the record, that “defendant’s interaction with the court did not indicate that a fitness

hearing was required”). Accordingly, defendant’s claim in this case is not meaningfully

distinguishable from that raised on appeal stemming from his first successive postconviction

petition. Therefore, because defendant’s claim regarding his “diminished mental state” during

the court proceedings is barred by res judicata, no meritorious argument can be made to the

contrary on appeal.

¶ 34 C. Improper Substantive Input

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¶ 35 OSAD next contends no meritorious argument can be made the State improperly

participated in the leave-to-file proceedings. We agree.

¶ 36 In People v. Bailey, 2017 IL 121450, ¶ 24, 102 N.E.3d 114, our supreme court

held “the State should not be permitted to participate at the cause and prejudice stage of

successive postconviction proceedings.” The supreme court explained, although the Act “does

not expressly prohibit the State’s input, we find that the Act contemplates an independent

determination by the circuit court. The motion for leave to file is directed to the court, and it is

the court that must decide the legal question of whether a defendant has satisfied the section

122-1(f) requirement of showing cause and prejudice.” Bailey, 2017 IL 121450, ¶ 24.

¶ 37 In this case, the record reflects the State played no substantive role in the

proceedings. Rather, in denying defendant’s motion for leave to file a successive postconviction

petition, the circuit court made an independent determination that defendant’s petition did not

raise a claim of actual innocence and “fail[ed] to meet the cause or prejudice prong.” Afterward,

the State, upon the court’s request, simply performed the ministerial act of preparing a written

order reflecting those findings. Accordingly, we agree with OSAD, no meritorious argument can

be made the State improperly participated in the leave-to-file proceedings.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we grant OSAD’s motion to withdraw as appellate counsel

and affirm the circuit court’s judgment.

¶ 40 Affirmed.

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