People v. Jones

JUSTICE HOWSE, dissenting:

I must respectfully dissent. Unlike my colleagues in the majority, I do not believe Hodges directs us to take such a broad approach to our analysis of whether a petition is based on an indisputable meritless legal theory or a fanciful factual allegation.

Although defendant confessed to the murder prior to trial, his postconviction petition raised a claim of actual innocence. Defendant attached an affidavit from Melvin Jones, a codefendant, in support.

In Melvin’s affidavit, he states he falsely accused defendant as being his accomplice in the shooting. Melvin states he falsified his video confession and forced defendant to confess in an effort to obtain a more lenient sentence from the State. Additionally, Melvin averred he was able to force defendant to confess because he contacted members of his gang to relate to defendant a threat that he had to admit to being present and discharging a gun at the crime scene or either a family member or a friend of defendant would be killed. Melvin further states defendant was not present at the scene of the shooting. Melvin now admits to being “solely responsible” for committing the crime at this time because he has changed his lifestyle and amended his former ways and could “no longer live with the fact that an innocent person is incarcerated for something I’m responsible for.” The final page of his affidavit is signed, sworn and notarized.

As the majority correctly notes, the question before us is “whether defendant’s petition had no arguable basis either in law or in fact, i.e., whether it was based on an indisputably meritless legal theory or a fanciful factual allegation.” See Hodges, 234 Ill. 2d at 17.

Our supreme court has based its definition of fanciful and delusional claims on recent federal habeas corpus cases such as Neitzke v. Williams, 490 U.S. 319 , 104 L. Ed. 2d 338 , 109 S. Ct. 1827 (1989); Koetting v. Thompson, 995 F.2d 37 (5th Cir. 1993); and Weeks v. Jones, 100 F.3d 124 (11th Cir. 1996). See Hodges, 234 Ill. 2d at 13. Examples of “factual fanciful allegations” identified by federal courts include: a defendant’s claim that he was drugged and raped 28 times by inmates and prison officials at different institutions (Denton v. Hernandez, 504 U.S. 25 , 118 L. Ed. 2d 340 , 112 S. Ct. 1728 (1992)); a claim that Robin Hood and his Merry Men deprived prisoners of their access to mail or that a genie granted a warden’s wish to deny prisoners any access to legal texts (Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990)); and a prisoner’s claim that prison guards intentionally put metallic substances in the prisoner’s food (Evans v. Six Unknown Federal Prison Guards, 908 F.2d 975 (1990) (table)).

The majority concludes defendant’s petition is based on fanciful factual allegation. To reach this conclusion, the majority points to defendant’s postarrest behavior as circumstantial evidence that the petition allegations are unlikely to be true. According to the majority, Melvin’s affidavit cannot possibly support defendant’s claim of actual innocence in this case because it “leaves unresolved the necessity of frustrating the efforts of the police and polygraph examiner for a period of over 12 hours.” 399 Ill. App. 3d at 362. The majority concludes that in order to believe Melvin’s affidavit, “[w]e would be required to conclude that defendant’s postarrest actions encompassing his initial denials to the police, as well as the false accusations which followed, were simply a ruse.” 399 Ill. App. 3d at 362. The majority also takes issue with the fact that Melvin claims sole responsibility for the shooting even though the evidence presented at trial suggested two guns were used, and that defendant implicated Stank in the plot although not allegedly directed to do so by Melvin.

In support of their definition of fanciful and delusional, the majority cites People v. Coulson, 13 Ill. 2d 290 , 149 N.E.2d 96 (1958), People v. O’Connor, 412 Ill. 304 , 106 N.E.2d 176 (1952), and People v. Buchholz, 363 Ill. 270 , 2 N.E.2d 80 (1936). Those cases do not involve either first-stage hearings under the modern Post-Conviction Hearing Act or similar fact patterns to the facts and issues presented here.

Contrary to the majority’s contention, several plausible alternative explanations exist that could explain defendant’s allegedly incongruent postarrest behavior. For example, defendant may have needed time to consider Melvin’s threat and whether he was going to allow himself to be convicted for a crime he did not commit. He also may have been showing bravado to Melvin by not confessing. Moreover, neither the fact that the trial evidence suggests two guns were involved in the murder nor the fact that defendant implicated another individual in the murder during his confession irrefutably suggests Melvin’s statements that defendant was not present for the murder are fanciful.

The majority is also troubled by a letter defendant apparently sent to his parents prior to trial, which was attached to his petition as exhibit K(l), where defendant said “No gang member threaten [sic] me to do it.” The majority, however, does not discuss defendant’s other statements in the letter that “I went into the station and I was scared and weak-minded and fucked up and told a lie on my damn self, which is the dumbest shit I could have ever done,” and that “I was scared and shook up in the police station and went along with just about the same shit Melvin said after they showed me his statements on paper and the video of him.” The majority also does not discuss or make mention of an earlier letter defendant apparently sent to his parents on March 25, 2000, which was also attached as part of exhibit K to the petition, where he specifically said he was shown a transcript of Melvin’s videotaped confession by the police prior to making his own confession. The March 25 letter provides a plausible explanation as to how defendant could be so familiar with the details surrounding the murder when he gave his videotaped statement, a major concern of the majority in finding defendant’s claim fanciful.

Simply put, nothing in the record before us concretely disproves or rebuts the allegations found in Melvin’s affidavit. Resolving the apparent factual incongruities created between defendant’s pretrial behavior and the claims in his petition necessarily requires a credibility determination that the majority identifies as “axiomatic” to avoid at this stage of review. The majority’s thinly veiled credibility determination becomes apparent when it specifically refers to Melvin’s statements as “simply a meaningless assemblage of words” in a subsequent portion of the opinion. 399 Ill. App. 3d at 366. The correct standard in evaluating the factual allegations before us in the petition is to determine whether they are fantastic or delusional, not to consider whether they are unlikely in light of the evidence adduced at trial.

While the allegations in defendant’s petition and Melvin’s affidavit might appear somewhat unlikely given the record before this court, I fail to see how unrebutted allegations that defendant confessed to the murder based on a threat from Melvin and was not present when the murder occurred can properly be described as fantastic or delusional. As the Hodges court noted, “ ‘[s]ome improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction.” [Citation.]’ ” Hodges, 234 Ill. 2d at 13 n.5, quoting Denton v. Hernandez, 504 U.S. 25, 33 , 118 L. Ed. 2d 340, 350 , 112 S. Ct. 1728, 1733-34 (1992).

Any direct challenge to Melvin’s or defendant’s credibility is premature at this stage of review. See People v. Coleman, 183 Ill. 2d 366, 380-81 , 701 N.E.2d 1063 (1998) (“our past holdings have foreclosed the circuit court from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding”). Moreover, “a belief that allegations are unlikely, without more, is insufficient to justify dismissing a petition.” Hodges, 234 Ill. 2d at 19, citing Denton, 504 U.S. at 33 , 118 L. Ed. 2d at 350 , 112 S. Ct. at 1733-34 . Accordingly, I cannot say the factual allegations presented in Melvin’s affidavit are irrational or wholly incredible. See Hodges, 234 Ill. 2d at 13.

In addition, the majority maintains Melvin’s affidavit is not newly discovered evidence because it presents facts already known to the defendant prior to trial.

In People v. Molstad, 101 Ill. 2d 128 (1984), our supreme court held the affidavit of a convicted codefendant constitutes newly discovered evidence because such an affidavit could not have been acquired before the codefendant’s conviction on the same charges. The court held:

“The affidavits submitted as the basis for a new trial could not have been discovered with the exercise of due diligence. The record reveals that the defendants were acquainted with each other, and presumably due diligence on the part of Molstad or his counsel could have ascertained what posture the codefendants would have taken at trial. However, no amount of diligence could have forced the codefendants to violate their fifth amendment right to avoid self-incrimination [citation] if the codefendants did not choose to do so.” Molstad, 101 Ill. 2d at 135 .

The majority distinguishes Molstad, noting the affidavits in that case were presented after the codefendants had been found guilty, but prior to sentencing. The majority also notes the codefendants in Molstad specifically averred they did not testify or come forward because they could not do so without damaging their own defensive position. Lastly, the majority notes that although Melvin’s affidavit “purports to exonerate defendant, his false accusations of defendant’s complicity had no relevance to the evidence in the trial proceedings.” 399 Ill. App. 3d at 365.

The majority’s contentions clearly go to the weight Melvin’s affidavit should be given, not to whether it constitutes newly discovered evidence under Molstad. The weight the affidavit should be given is a totally different analysis than what is appropriate at this stage of review.

Furthermore, the majority maintains Melvin’s “cleverly drawn” affidavit is irrefutably flawed because nowhere in it does he actually inculpate himself. The majority also finds Melvin’s affidavit flawed because it does not contain a statement that Melvin would actually testify to the facts alleged in the affidavit at a new trial. Noting that newly discovered evidence must be of such conclusive nature that it would probably change the result on retrial (Barrow, 195 Ill. 2d at 540-41), the majority concludes an analysis of the affidavit “fails to instill an abiding belief that his averments fulfill that requirement.” 399 Ill. App. 3d at 366.

In making its determinations, the majority overlooks the distinction the legislature has made between first-stage review in noncapital and capital postconviction cases. Section 122 — 1(a)(2) requires a defendant in a capital case to establish a substantial basis of actual innocence during the first stage of review. 725 ILCS 5/122 — 1(a)(2) (West 2006). In the first stage of a noncapital postconviction petition, however, a defendant is not required to sustain the higher burden of presenting a substantial claim of innocence until the second-stage hearing. People v. Edwards, 197 Ill. 2d 239, 246 , 757 N.E.2d 442 (2001). At the first stage this court should only be concerned with whether the petition lacks an “arguable basis in fact,” not whether the allegations reveal sufficient facts “upon which a meaningful prosecution of Melvin could be pursued.” 399 Ill. App. 3d at 366; see Hodges, 234 Ill. 2d at 19.

While a pro se petition is clearly not expected to set forth a complete and detailed factual recitation at the first stage of review, “ ‘it must set forth some facts which can be corroborated and are objective in nature or contain some explanation as to why those facts are absent.’ ” Hodges, 234 Ill. 2d at 10, quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008). I would find defendant’s petition and the signed, sworn and notarized affidavit from Melvin attached in support have done just that. It is also important to note that if defendant’s pro se petition advanced to the second stage of review, a lawyer would be appointed and an opportunity presented to amended the affidavit and petition to possibly cure the defect identified by the majority.

In reaching the above conclusions I do not mean to suggest defendant’s claims would ultimately prove meritorious. That is not the standard by which we review a first-stage petition. I simply find defendant’s pro se petition should be allowed to proceed to the next stage of review. I respectfully dissent and would find the trial court erred in summarily dismissing defendant’s postconviction petition.