## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Goodwin , 2012 IL App (4th) 100513

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. STEPHEN G. GOOD WI

N, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0513

Filed Rehea ringdenied J anuar y 31, 2012
Fe bruar y 28, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for esca pe, ag g ravated kidnaping
, ag g ravated possession of a conver

ted vehicle and ag g ravated flee ing or at t em p t i ng to elude a police office r, the trial court did not err in dismiss ing defe ndant’s amende d postconviction petition alleg ing that his trial counsel was ineffe ctive in failing to raise the objection that the State dismiss ed two venire members based solely on their rac e wher e defe ndant did not provide any rele vant circ umstances to substantiate his claim, and without
more, the petition mere ly contained a vague, unsubstantiated and conclusory

alleg ation of a Batson violation.

Dec ision Under Review Appea l from the Circuit Cour t o f M acon County
, No. 05-CF- 486; the Hon. L isa Holder White, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er , Peter A. Carusona, and J ay Wiegman, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ack Ahol a, State’s Attorney
, of Dec atur (Patrick Delfino, Robert J

. Bide rman, and Aimee Sipes J ohnson
, all of State Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Pope and Mc Cullough conc urre d in the judgme nt and opinion.

OP INION

¶ 1 In Fe bruar

y 2006, a jury convicted defe ndant, Stephen G. Goodwin, of (1) esca pe (720 I L C S 5/31-6(c) (West 2004)), possession of a conver ted vehicle (625 I L CS 5/4-103(a) (1 ) (West 2004)), (3) ag g rav a

te d kid n aping (720 I L CS 5/10-2(a) (2) (West 2004)), (4) ag g ravated possession of a conver

ted vehicle (625 I L CS 5/4-103.2(a) (7)( A) (West 2 0 0 4 ))
, an d (5)
ag g ravated flee ing or attempting to elude a police office r (625 I L CS 5/11-204.1(a) (W est 2004)). ¶ 2 In Marc h 2006, the trial court sentenc ed defe ndant to serve concur rent prison sentenc es of 7 year s for esca

pe, 30 year s for ag g ravated kidnaping
, 15 year s for ag g ravated possession of a conver

ted motor vehicle, and 3 year s for ag gravated flee ing or attempting to elude a police off icer

. ¶ 3 In Marc h 2010, defe ndant filed an amende d petition f or postconviction relief

, alleg ing, in pertinent part, ineffe ctive assistance of trial counsel in that his counsel failed to prese rve the claim that the State used pere mptory c h a ll e ng es to dismiss prospec tive jurors based solely

on their rac e. In April 2010, the State filed a motion to d i s m i s s d ef en dant’s amende d postconviction petition, which the trial cour t later grante d. ¶ 4 Def

endant appea ls, arguing that the trial court err ed by dismiss ing his amende d petition for postconviction relief beca use he made a substantial showing of a constitutional violation. We disag ree and af

firm.

¶ 5 I . BA CKGROUND ¶ 6 A. The Circ umstances Surroundingthe State’s Charg es ¶ 7 In April 2005, the State charg ed defe ndant with sever al crimes, alleg ing that earlier that month, defe ndant fled on foot from a police office r’s attempt to eff ect a war rant for his arr est. As defe ndant ran from the p olice, he saw a van parked in a driveway that was unattended.

-2-The van’s owner was standing in the drivewa y , watching the action of the police. Def endant
enter ed the van and beg an to drive awa y

. The owner att em p t ed u nsucce ssfully to stop defe ndant, yelling that his 11-month-old daughter was in the back of the van strapped to her

car seat. After a brief chase
, the police arr ested defe ndant, alleg ing further that he (1) knowing ly confine d the minor ag ainst her will and (2) ref used to comply with their repe ated commands to stop. ¶ 8 In J une 2005, the State filed the following amende d charg es ag ainst defe ndant: (1) esca pe (720 I L CS 5/31-6(c) (West 2004)), (2) p ossession of a conver ted vehicle (625 I L CS 5/4- 103(a) (1) (West 2004)), (3) burg lary (720 I L CS 5/19-1(a) (West 2004)), (4) ag g ravated kidnaping (720 I L CS 5/10-2(a) (2) (West 2004)), (5) aggrava ted pos sessi o n of a conver ted vehicle (625 I L CS 5/4-103.2(a) (7)( A) (West 2004)), and (6) ag g ravate d f le e in g o r attempting to elude a police office r (625 I L CS 5/11-204.1(a ) (West 2004) ). (Prior to def endant’ s trial, the trial cour

t gr anted the State’ s reque st to dism iss the burg lary charg e.)

¶ 9 B. Voir Dire ¶ 10 In Fe bruar

y 2006, the trial court conducte d voir dire proce eding s in which the court, the State, and def

endant’s counsel asked venire members standard questions about their

re s p ective backgrounds and beliefs. During that examination, the State used pere mpt o ry challeng es to dismiss t he followingfive juror s.

¶ 11 1. Catherine Jones ¶ 12 J ones, who was employed as a cook for 22 year s, stated that her son was in jail pending criminal charg es, which orig inated from his attempt to flee the police in a car he was driving without a license. The police claimed that J ones’ son attacke d them during his appre hension. J ones noted that (1) her son’s involvement with the police occur red three wee ks earlier, (2) her son had previously serve d a prison sentenc e on unrelated charges
, and (3) she knew

sever al people with the last name Goodwin but did not know if they wer e related to defe ndant. J ones explaine d t hat althoug h her son was charg ed with some of the same criminal off

enses de fenda

nt was fa cing , she could be a fa ir and impartial juror

.

¶ 13 2. Joni Hall ¶ 14 Hall, a mail room cler k for an insurance company for approximately 8 year s, stated that she had pr eviously

worke d as a r eceptionistfor 10 year s.

¶ 15 3. Sandra Harden ¶ 16 Har den stated that she (1) had recen t l y reloc ated from California wher e she had bee n working as a rec eptionist, (2) attended colleg e for three year s, majoring in psychology , and (3) was the plaintiff in a California suit perta ining to a traff ic acc ident. Har den explained that her jury duty service had cause d her to lose two temporar y emplo y ment place ment opportunities.

-3-¶ 17 4. Richard W hite ¶ 18 Whit e, a restaur ant janitor for four year s, stated that he was classified as disabled since birth beca use of a club foot and “one side of his body beingsmaller than the othe r.” White did not believe that his phy sical disability would make it difficult for him to serve as a juror, but he noted that it was his first time that he wa s summoned for jury duty

.

¶ 19 5. Marina Loehr ¶ 20 L oehr, a self-e mploy ed owner of a bridal consulting business for six year s, stated that she had two year s’ vocational trainingas a ma chine ope rator.

¶ 21 C. The Jury ’s Ver dict and the Trial Court’s Sentence ¶ 22 Following the prese ntation of evidenc e and argument at defe ndant’s Fe bruar y 2006 trial, the jury convicted defe ndant o f al l ch arg es. In Marc h 2006, the trial court sentenc ed defe ndant to serve concur rent prison sentenc es of 7 year s for esca pe, 30 year s for ag g ravated kidnaping
, 15 year s for ag gravated possession of a conver ted motor vehicle, and 3 year s for
ag g ravated flee ing or attempting to elude a polic e o ff i cer

. (The court did not impose a sentenc e on defe ndant’s possession- of-a -conve rted-ve hicle conviction beca use the court found that charg e to be a l es s er -i n cluded offe nse of ag g ravated possession of a conver ted vehicle.)

¶ 23 D. Def endant’ s Motion for a Ne w Trial a nd Direc t Appeal ¶ 24 Shortly afte r the trial court sentenc ed defe ndant, defe ndant’s trial counsel filed a motion for a new trial, arguing, in pertinent part, that he “wa s not tried by a jury of his peer s in that the Stat e pree mptively challeng ed two Afric an-America n jurors and one Asian-Ame rica n juror[,] insuring an all white jury .” In reje cting defe ndant’s claim, the court stated the following : “[T] he fac t that Afric an[-]American jurors wer e excused by p er em p t ory challeng es is something that the Court has t o be aware of. *** Any party that believes tha

t a juror is b ei ng dismiss ed beca

use of rac e can raise that issue. *** The parties can knowi n gl y waive that right, but it can al wa y s later be challeng ed on the basis of ineffe ctive assistance of counsel ***. But this Court is alway s vigilant to that issue. *** The Court didn’t see any eff

ort to remove jurors beca

use of rac e in this case

. Even though it is not [t he Court’s] responsibility to raise this without it being ra ised by the Def endant or the State, if this Court had thought that any juror was being excused bec au s e o f rac e, [t he Court] would h av e s t ep p ed in. There is just no evidenc e of that in the record. The fac t that Afric an[ -] Am er i ca n j urors may have been excused is not a rea son for a new trial. The law does n ’t guara

ntee anyone a particula

r rac ial makeup on a jury

. But the Def endant is guara

nteed a fair and i mp ar t i al jury and there is nothing in this rec ord to indicate t hat he did not rec eive a trial and a verdic t from a fair and impartial jury

. *** Motion for a ne w trial is denied.” ¶ 25 D e f

e n d a nt a p p e aled, raising various arguments unrelated to the jury ’s rac ial compositio n ,

-4-and this court aff irmed defe ndant’s convictions and the concur rent s en t en ces imposed. People v . Goodwin , 381 I ll. App. 3d 927, 936, 888 N.E.2d 140, 148 (2008).

¶ 26 E. Def

endant’ s Petiti on for Postconviction Relief, the State’ s Motion To Dismiss, and the Trial Court’s De termination ¶ 27 In Marc h 2009, defe ndant pro se filed a (1) petition for postcon v i ct i o n re l i ef and (2) motion for the appointment of an attorney

. In his postconviction petition, defe ndant alleg ed, in pertinent part, ineffe ctive assistance of trial counsel in that his counsel failed to prese rve th e c laim that the State used pere mptory challeng es to dismiss prospec tive jurors based solely

on their rac e. In J une 2009, the trial court appointed counsel for defe ndant. In Marc h 2010, defe ndant’s counsel filed an amende d petition for postconviction relief
, which incorporated the claims defendant a lleg ed in hi s pro se postconviction petition. In April 2010, the S tate filed a motion to dismiss defe ndant’s amende d petition for postconviction relief

. Following

a May 2010 hearing, the court enter ed a written order
, g ranting the State’s motion to dismiss

. ¶ 28 This appea l followed.

¶ 29 I I . THE TRIAL

COURT’S SECOND-STAGE DI SMI SSALOF D EFEN DANT’ S
AMENDED PETI TI ON F OR POSTC ONVI CTI ON REL I EF ¶ 30 A. Proce eding s Under the Act ¶ 31 A defe ndant may proce ed under the Act by allegi n g t h at “i n the proce eding s which resulted in his or her conviction[,] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of I llinois or both.” 725 I L CS 5/122-1(a) (1) (West 2010). In noncapital case s, the Act establishes a three -stag e proce ss for adjudicating

a postconviction petition. 725 I L CS 5/122-1 through 122-7 (West 2010); People v. Gomez
, 409 I ll. App. 3d 335, 338, 947 N.E.2d 343, 346-47 (2011). “At the first stag e, ‘the trial court, wi t h o u t input from the State, examines the petition only to deter mine if [i t alleges ] a constitutional deprivation unrebutted by the rec ord, rende ring the petition neither frivolous

nor patently without merit.’ ” (Emphasis in orig inal.) People v. A n d rews , 403 I ll. App. 3d 654, 658, 936 N.E.2d 648, 652 (2010) (quoting People v. Phyfiher
, 361 I ll. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005))

. “Section 122-2.1 [of the Act] direc ts that if the defendant is
sentenc ed to imprisonment (rather than death) and the circ uit co u rt d eter mines that the petition is frivolous or patently wi th o u t m erit, i t shall be dis missed in a written order

. 725 I L CS 5/122-2.1(a) (2) (West 2004) .” People v. Torres
, 228 I ll. 2d 382, 394, 888 N.E.2d 91, 99-100 (2008)

. ¶ 32 I f a petition is not dismiss ed at stag e one, it pr ocee ds to sta g e two, wher e section 122-4 of the Act provides for the appointment of counsel for an indige nt defe ndant who wishes counsel to be appointed (725 I L CS 5/122-4 (West 2010)). At the second stag e, the State has the opportunity to answe r or move to dismiss the petition (725 I L CS 5/122-5 (West 2010)). T h e rele vant question raised during a second- stag e postconviction hearing is whether the alleg ations in th e petition, supported by the trial rec ord and acc ompanying aff idavits, demonstrate a substantial showing of a constitutional depriva tion, which mandates a stag e-

-5-three evidentiar y hearing. People v. Chears
, 389 I ll. App. 3d 1016, 1024, 907 N.E.2d 37, 44 (2009). A trial court’s second- stag e dismiss al of a defe ndant’s postconviction petition under the Act prese nts a question of law that we revie w de novo

. Chears
, 389 I ll. App. 3d at 1024, 907 N.E.2d at 44.

¶ 33 B. D efe ndant’s Claim That His Postconviction Petit ion Alleg ed

a Substantial Showing of a Constitutional Violation ¶ 34 Def

endant argues that the trial court err ed by dismiss in g h i s am en d ed p et i t i o n for postconviction relief beca use h e mad e a substantial showing of a constitutional violation. We disagree

.

¶ 35 1. Strickland’s Two-Pronged Test for Ineffective -Assistance-of- Counsel Clai ms ¶ 36 To establish an ineffec tive-assistance -of- counsel claim, a defenda nt must show (1) his counsel’s perf

orm an ce was inadequate “in that it fell below an objective standard of

rea sonablene ss,” and (2) a rea sonable probability exis ts that the outcome of the proce eding would have been differ ent absent counsel’s defic ient perf ormanc e. People v. Moore
, 189 I ll. 2d 521, 535, 727 N.E.2d 348, 355-56 (2000) (citing Strickland v. W ashington
, 466 U.S. 668, 687, 694 (1984))

. “B eca

use defe ndant must prove both prong s of Strickland to preva il on this claim, we may resolve the issue ‘solely on the g round t h at t h e defe ndant did not suffe r prejudice without deciding whether counsel’s perf ormanc e was constitutionally defic ient.’ ” People v. Rinehart
, 406 I ll. App. 3d 272, 278, 943 N.E.2d 698, 704 (2010) (quoting People

v. Litt le
, 335 I ll. App. 3d 1046, 1052, 782 N.E.2d 957, 963 (2003))

. “To satisfy the prejudice
prong , the party must prove a rea sonabl e p ro bability exis ts that, but for counsel’s unprofe ssional errors, the proce eding s’ result would have been differ ent.” In re Ch. W

. , 408 I ll. App. 3d 541, 547, 948 N.E.2d 641, 648 (2011).

¶ 37 2. Defendant’ s Ineffec tive-Assistance -of-Trial-Counsel Claim ¶ 38 In his amende d postconviction petition, defe ndant contends that his tri al co u n s el was ineffe ctive beca

use counsel failed to prese rve the claim that the State used pere mptory challen ges to dismiss prospec tive jurors based solely on their rac e. In support of his contention, defendant relies o n P eo p l e v. Houston
, 226 I ll. 2d 135, 874 N.E.2d 23 (2007), for the proposition that his trial counsel’s “fa ilure to object to the State’s pere mptory challeng es waived [hi s] Batson challeng e and made it impossibl e to support his claims.” See Batson v. Kentucky
, 476 U.S. 7 9
, 89, 83 (1986) (whe re the Supreme Court of the United States held that the equal protec tion clause of the fourtee nth amendment prohibits the State from using pere mptory challeng es to exclude prospec tive jurors solely on the basis of rac e). ¶ 39 In Ho u s t o n , 2 2 6 I l l

. 2 d at 152-53, 874 N.E.2d at 34, the Supreme Court of I llinois
, specific ally noting the sui gene ris nature of the case , held that when a defe ndant’s Batson claim cannot be pursued beca use the defe ndant’s trial counsel waived the prese nce of a court repor ter at voir dire proce eding s, in violation of I llinois Supreme Court Rule 608(a) (9) (ef f. Dec

. 13, 2005), the appropri at e re m ed y on appea l is to rema nd to the trial court with

-6-direc tions that the court attempt to rec onstruct the rec ord of events that occur red during that
proce eding

. Def

endant admits that this case differ s from Houston
, in that a transcript of the voir dire proce eding s exi sts in thi s case , but nonetheless asse rts that by failingto object or make a rec ord of the racial composit ion of t he jurors and the venire
, (1) his trial counsel’s perf ormanc e fell below an objective standard of rea sonablene ss and (2) his trial counsel was ineffe ctiv e “in the same way that trial counsel in Houston was ineffe ctive.” We are not persua ded. ¶ 40 We first reje ct defe ndant’s asse rt i o n t h at the defe ndant’s trial counsel in Houston was ineffe ctive. In Houston
, 226 I ll. 2d at 148, 874 N.E.2d at 32, the s upreme court concluded only that the defe ndant had established his t ri al counsel’s perf ormanc e fell below an objective standard of rea sonablene ss beca use the rec ord showed that prior to jury selec tion, counsel waived the prese nce of a court repor ter, which the supreme court surmised could not have been undertaken to g ain a strateg ic advanta g e. Pursuant to its supervisory authority
, the
supreme court reta ined jurisdiction and order ed the trial court to rec onstruct the rec ord at voir dire so that it could later deter mine whether trial counsel’s substandard perf ormanc e resulted in prejudice to the defe ndant. Houston , 226 I ll. 2d at 151, 154, 874 N.E.2d at 32-33. Thus, in Houston
, a Strickland assessment reg arding the eff ectivene ss of the defe n d an t ’s trial counsel had yet t o be completed. See People v. Houston
, 229 I ll. 2 d 1, 9, 890 N.E.2d 424, 429 (2008) ( reje ctingthe defe ndant’s ineffe ctive-a ssistance-of -trial-c ounsel claim bec ause the rec onstructed rec ord showed that counsel’s waiver of the court repor ter during voir dire did not prejudice the defe ndant). ¶ 41 We also reje ct defe ndant’s asser tion th at Ho u s t o n s up p o rt s h i s cl aim that his trial counsel’s perf

ormanc e was defic ient beca use counsel failed to make a rec ord by not objecting to the State’s pere mptory challeng es during voir dire

. I f this c ourt wer e to a ccept defe ndant’s asser

tion–which we do not–it would essentially mandate that trial counsel raise

a Batson objection any

time the State attempted to execute a pere mptory challeng e, re g ardle ss of the re levant cir cumstance s or rationale ex presse d by the S tate for doing so. Thus, unde r defe n d an t ’s position, a trial counsel’s failure to asser t a Batson objection when the State exercises a pere mptory challeng e would rende r counsel’s perf ormanc e defic i en t per se beca use of the require ment to establish a rec ord du ri n g voir dire proce eding s. Such a require ment is neither the law in this State nor what the supreme court intended in Houston
, and this court will not mandate trial counsel asser t a Batson violation, espec ially g iven that, in some instances, c ounsel may not believe a

basis exis ts to do so. ¶ 42 In this case , defe ndant’s pro se petition for postconviction relief alleg ed, in pertinent pa rt, ineffe ctive assistance of trial counsel in that counsel failed to object to the State’s dismiss ing the only two Afric an-America

n and Asian-Americ an veniremember s based solely on rac e. In his Marc h 2010 amende d petition for postconviction relief
, defe ndant’s postconviction counsel incorpora

ted defe ndant’s alleg ation without amendment and d i d not attach any

rec ords or other evidenc e in support of defe ndant’s claim. (Intere stingly
, defe ndant in neither of his postconviction petitions sets forth the rac e of the five jurors excused by the State, and the rec ord does not otherwise indi ca t e their rac e.) In addition, althoug h defe ndant was prese nt during the voir dire proce eding s, he failed to provide any rele vant circ umstances to

s ub s t an t i at e his claim in his separ ate aff idavits in support of his pro se and amended

-7-postconviction petitions. Thus, wit hout more, defe ndant’s amende d petition for

postconviction relief is inadequate in that it mere ly contained a vague, unsubstantiated, and conclusory

alleg ation of a Batson violation. See People v . Gutierrez , 402 I ll. App. 3d 866, 891-92, 932 N.E.2d 139, 164 (2010) (it is settled that a Batson case cannot be substantiated

mere ly by the num b er s o f black venire members stricken by the State but instead, by establishment of a prima

facie case of discrimination based on a considera tion of all rele vant circ umstances)

. ¶ 43 Acc ording ly , we conclude that the trial court did not err by grantingthe State’s motion to dismi ss defe ndant’s ame nded petition for postconvic tion relief.

¶ 44 I I I . CONCLUSI ON ¶ 45 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, we

awa rd the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 46 Affir

med.

-8-