People v. Barnslater

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3172 Rel

Case Date: 05/04/2007

Preview:SIXTH DIVISION May 4, 2007

No. 1-05-3172

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE BARNSLATER, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County. No. 99 CR 08691-03 Honorable Christopher Donnelly, Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court: Defendant, Wayne Barnslater, appeals from the circuit court's grant of the State's motion to dismiss his postconviction petition at the second stage of postconviction review. On appeal, he contends that he made the necessary substantial showing of a freestanding claim of actual innocence of the aggravated criminal sexual assault to which he pled guilty so as to preclude his petition's dismissal. He further argues that the circuit court erred in rejecting his petition's challenge to the voluntariness of his plea, even if res judicata applied, since fundamental fairness would mandate the relaxation of that procedural bar where the plea was obtained by a threat from his own counsel. We affirm. FACTUAL BACKGROUND The State charged defendant with, among other charges, aggravated kidnaping and aggravated criminal sexual assault, in a 68-count indictment on March 9, 1999. The charges stemmed from an alleged incident involving defendant, two codefendants, and 19-year-old Y.B.

1-05-3172 On December 22, 1999, defendant took part in a Supreme Court Rule 402 (177 Ill. 2d R. 402) conference with the State and the circuit court. At the conclusion of that hearing, the circuit court stated: "My understanding is the plea of guilty would be to *** two counts of aggravated criminal sexual assault, one count of aggravated kidnaping. I indicated the State is recommending that I sentence the defendant to a period of six years Illinois Department of Corrections as to the aggravated criminal sexual assault count involving vaginal intercourse and also to six years Illinois Department of Corrections on the one alleging contact, mouth to the penis, and that pursuant to the statute that these sentences be made consecutive, so he'd be serving a period of 12 years. The aggravated kidnaping count would merge into the counts as it is a predicate offense to the aggravated criminal sexual assault counts. The other counts would be nolle prossed pursuant to the plea agreement." Following the hearing, defendant pled guilty to those two counts of aggravated criminal sexual assault and one count of aggravated kidnaping. Following a colloquy between the circuit court and defendant in which defendant stated that he "was not threatened in any way in order for [him] to plead guilty," the State presented the factual basis for defendant's plea. The prosecutor stated: "If this case were to go to trial, the evidence would show that on March 9, 1999, at approximately between the hours of seven p.m. and

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1-05-3172 10:11 p.m., at the address of 490 Madison, Calumet City, Cook County, the State of Illinois, the residence of Wayne Barnslater, that [Y.B.], the victim, went over there with Joe Michael Clemmons and David Jackson, codefendants, under the ruse to baby-sit. When she arrived there, the three defendants and her were sitting around drinking. The defendant, Mr. Barnslater, had a fifth of gin. He poured about three to four shots worth of gin and 7-Up in a glass and [Y.B.] drank it straight down. After approximately 20 minutes, she was in the kitchen using the phone. They had been talking about having sex. The defendant, Mr. Barnslater, went into the kitchen where she was on the phone, pulled down his pants showing her his penis. She laughed. He walked out of the room. At that time shortly thereafter, she went into the bedroom, and fell asleep in the bed. He went into the bedroom, saw one of the codefendants having sex with her. She was moaning as in a drunken stupor. Subsequently the defendant then placed his penis in her mouth while the other individual was having vaginal intercourse with her. Mr. Barnslater did the oral intercourse at that time. Subsequently, after the others were done, the defendant went back placed his penis in her vagina. When she was still unresponsive, he left it in her for approximately a minute or so, and when she was unresponsive,

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1-05-3172 he then pulled it out and left the room. During this time the police had come to the door along with the victim's mother asking for the victim. The defendant answered the door indicating she was not there. However, later when the police came back, he indicated she, in fact, was there, and that she was unconscious in the bedroom. The officer went in. She was transported to St. Margaret's Hospital where it was learned that she had a blood alcohol content of .264, in her system at that time. During the acts of intercourse, she would testify that she was unable and unwilling to give consent or unknowing [sic] due to the fact that she was under the influence of alcohol." Defense counsel stipulated to the State's proffered factual basis for the plea. On January 20, 2000, defendant moved to withdraw his guilty plea. He alleged that defense counsel and the State worked together to convince him to plead guilty in spite of insufficient evidence to prove his guilt. While never averring that he did not have sex with Y.B. while she was intoxicated, he contended that she never complained of being kidnaped and that he did not force her to drink. According to defendant, in this motion, Y.B. went to his bedroom voluntarily with a friend of his. In a supplement to his motion to withdraw his plea, filed on March 20, defendant further alleged, among other things, that he was "denied the right to a fair trial" because defense counsel told him to plead guilty and accept a 12-year sentence because, if

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1-05-3172 he did not, in light of his criminal history, he would receive a 20-year sentence. The circuit court denied the motion, after a hearing, on June 19, 2000. Subsequently, defendant made a direct appeal asserting, among other things, that his attorney was ineffective for counseling him to plead guilty on account of his criminal history when the attorney misattributed to him a conviction of a different person bearing the same name as he. He further argued that counsel compelled him to plead guilty through misrepresenting his criminal history and, thereby, rendered his plea involuntary. However, this court affirmed, noting that defendant's true criminal record was so extensive that counsel's representation of the additional "phantom" was not so material as to render his plea involuntary, and also observing that defense counsel had negotiated for the statutory minimum sentences on the charges for which defendant would be sentenced, and that their consecutive service was also mandated by statute. On June 18, 2002, defendant filed a pro se postconviction petition. Therein, he made a "freestanding claim of innocence, as a result of newly discovered evidence." In support of his claim he attached his own affidavit in which he criticized defense counsel for "only repeatedly insist[ing] he accept the plea, because the judge [was] going to give [him] a considerable amount of time." He also attached the affidavit of Y.B. in which she stated: "Mr. Barnslater on the night of March 9, 1999, did not sexually assault me ([Y.B.]) in any way, form or fashion nor was I held against my will. No one at that residence forced me to drink. My alcohol consumption was of my choice.

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1-05-3172 I was intoxicated and coerced into making accusations that was not the truth against Mr. Barnslater." Subsequently, on September 3, in a pro se motion to amend his pro se petition, defendant attached an unsworn letter addressed "to whom it may concern," from attorney Roger L. Brown. In his letter, dated August 21, 2002, attorney Brown stated: "Please be advised that I personally interviewed Ms. [Y.B.] on August 19, 2002. At that meeting, she informed me that Mr. Wayne Barnslatter [sic] did not sexually assault her. When I queried as to why she had not come forth with this information sooner, and why, according to the attached affidavit, she felt she had been 'coerced into making accusations that were not the truth against Mr. Barnslater,' Ms. Y.B. indicated her mother was the force controlling the charges which were b[r]ought. She stated told me that she had really no say in how the charges were b[r]ought and that her mother controlled the entire situation. But she did state without hesitation that Mr. Barnslatter [sic] did not sexually assault her." Defendant's pro se petition survived the first stage of review. The public defender, appointed to represent defendant under the Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq. (West 2002)), filed defendant's supplemental postconviction petition on September 24, 2004. In the body of the supplemental petition, defendant exclusively premised his relief on his freestanding claim of actual innocence based on newly discovered evidence. The petition did not

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1-05-3172 purport to attack the voluntariness of his plea or the performance of counsel. In support of his contention that the recantation evidence presented was "newly discovered," defendant alleged: "[Y.B.] was the State's witness. She was within their control and influence. Her personal testimony was not of record, their [sic] was a stipulation to the evidence to be submitted for purposes of the plea. The evidence submitted to the court for the plea was based on testimony submitted by the State's Attorney regarding what they would have been presented [sic] had the case went to trial. Due to the stipulation the [trial] attorney was unable to cross examine the truth or veracity of the statements read into the record by opposing Counsel, and unfortunately there was no way to ascertain that Ms. Y.B.'s testimony was coerced, but for her affidavit." As evidentiary support for the supplemental petition, defendant again attached Y.B.'s affidavit, as well as attorney Brown's letter. Defendant also attached an affidavit from his father, plus his own affidavit in which he expanded on the allegations he made in his affidavit in support of his pro se petition. Defendant's father, in his affidavit, averred that he was present in court on the day that defendant pled guilty. According to defendant's father: "It was obvious that his plea was not voluntary. He hesitated several times when asked if his plea was forced, and I observed his attorney nudge him with his elbow to get him to respond to the Judge's

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1-05-3172 questions. *** After pleading guilty before the Judge, Wayne immediately began proceeding to withdraw his plea. He stated he plead guilty because his attorney informed him that his chances of winning were slim and that he would be sentenced to a longer period of time if he did not plead guilty." According to defendant, in his expanded affidavit, he and his attorney had a "bullpen" conference where counsel "repeatedly insisted that [he] enter a plea agreement." Defendant alleged that counsel "stated because of [his] extended criminal history [that] the plea agreement was the best thing" for him and that, if he did not take the plea, "the judge was going to give [him] a considerable amount of time, because of [his] background" and because he had violated his sentence of probation previously imposed by the presiding judge. Defendant averred that he informed his counsel that he "did not do anything," but that counsel replied "it [did] not matter because of the allegations made against [him] and [because] the judge was mad cause [he] violated [the judge's previously imposed sentence] of probation." Defendant concluded that he "was coerced and pressured into accepting the plea agreement, afraid of what may have happened whether I was innocent or not." On May 20, 2005, the State moved to dismiss defendant's postconviction petition. With respect to the explicitly raised contention of factual innocence demonstrated by newly discovered evidence, the State contended that defendant's "newly discovered evidence" did not establish innocence in that Y.B.'s affidavit did not dispel the original contention that she was intoxicated

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1-05-3172 and, therefore, incapable of giving consent at a time when defendant engaged in intercourse with her. The State additionally perceived defendant to have raised an issue surrounding the voluntariness of his plea and a claim of ineffective assistance of counsel in his petition. The State argued that those issues were barred from postconviction review on grounds of res judicata because they had previously been addressed on direct appeal. At a hearing on the motion to dismiss, the State and defendant appeared to agree that Y.B. was unconscious at the time sexual acts were alleged to have been committed upon her. The State used that fact to reemphasize that Y.B.'s affidavit did nothing to undermine the element of her lack of consent. Defendant, on the other hand, argued "if she was unconscious *** how could she verify that [defendant] had sex with her. And the thing is someone would have to testify that that act took place." Defendant further argued at the hearing, with respect to the voluntariness of his plea, "that he did not want to plead, that he pled because he *** felt he had to plea; but once he found out that there was a lot of evidence out there that would support his position, he decided that he was going to continue to fight for this." In granting the State's motion to dismiss defendant's postconviction petition, the circuit court stated that it perceived any ineffective assistance claims or claims surrounding the voluntariness of defendant's plea to be barred by res judicata. However, the court also found the petition deficient on its merits. The court observed: "Regarding the newly discovered evidence, it's readily apparent that the complaining witness *** as was placed into the plea, that the victim was not really conscious at the time anyway.

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1-05-3172 That his guilt is not based simply on her testimony but on others['] as well. This is not newly discovered evidence that she is not aware of whether the defendant assaulted her or not. That's not what is at issue. That there are other witnesses who can provide the State with proof beyond a reasonable doubt that the defendant is guilty of crimes as charged. Therefore, your motion to dismiss the PC [postconviction petition] will be granted." Defendant appeals. ANALYSIS On appeal, defendant contends that the circuit court erred in dismissing his freestanding claim of actual innocence based on newly discovered evidence by concluding that the information contained in Y.B.'s affidavit was not "newly discovered." He argues that Y.B.'s averments demonstrated that she was under the control and domination of her mother and, therefore, that defendant could not have previously obtained her exculpatory statements. Defendant further argues that the circuit court's conclusion that his new evidence was immaterial since witnesses other than Y.B. could have established his guilt beyond a reasonable doubt amounted to an impermissible assessment of credibility as between Y.B. and those other witnesses. Defendant's second contention is that the circuit court erred in dismissing his claim surrounding the voluntariness of his guilty plea on grounds of res judicata. He argues that, even if raised before, we should grant him relief from the effect of his counsel's coercion on grounds

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1-05-3172 of fundamental fairness. We, however, disagree with defendant's contentions. In the review of a first or second-stage postconviction petition "all well-pleaded facts in the petition and affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient." People v. Rissley, 206 Ill. 2d 403, 412 (2003). Additionally, we will not credit allegations positively rebutted by the record. See People v. Phyfiher, 361 Ill. App. 3d 881, 883-84 (2005) ("Under first-stage procedure, as provided by section 122-2.1, or under second-stage procedure, as provided by section 122-5, the circuit court is foreclosed from engaging in any fact-finding because all well-pleaded facts not rebutted by the record are to be taken as true at stage one and stage two of the post-conviction process" (emphasis added)). We review the grant of the State's motion to dismiss a postconviction petition de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The wrongful conviction of an innocent person violates due process under the Illinois Constitution and, thus, a freestanding claim of actual innocence is cognizable under the PostConviction Hearing Act. See People v. Washington, 171 Ill. 2d 475, 489 (1996). To obtain relief under the general framework surrounding newly discovered evidence establishing actual innocence, defendant would have to present evidence that " 'appear[s] to be of such a conclusive character that it [would] probably change the result if a new trial [were] granted' " (People v. Jones, 26 Ill. App. 3d 78, 82 (1975), quoting People v. Silvia, 389 Ill. 346, 352 (1945)); likewise, to survive a motion to dismiss, and to be entitled to an evidentiary hearing under the Act, a petitioner must make a "substantial showing" of the deprivation of a constitutional right (see People v. Simpson, 204 Ill. 2d 536, 546-47 (2001)), in this case a deprivation of due process

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1-05-3172 through continued incarceration in spite of actual innocence. However, for the reasons discussed below, we affirm the dismissal of defendant's postconviction petition because defendant's proffered evidence achieves neither. As previously noted, defendant's conviction for aggravated criminal sexual assault, as opposed to simple criminal sexual assault, was based on the assault being committed during the commission of an aggravated kidnaping. Defendant appears to argue that, since the averments of Y.B.'s affidavit to the effect that she willingly came to defendant's home and drank voluntarily undercut the necessary elements of kidnaping, he is, therefore, "actually innocent" of aggravated criminal sexual assault. In so doing, he fails to acknowledge the distinction between being found "not guilty" and being "actually innocent" for purposes of postconviction relief. In People v. Savory, 309 Ill. App. 3d 408 (1999), the court addressed a statute allowing for postconviction DNA testing of evidence where the testing had the "potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence" (725 ILCS 5/116

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