People v. Hoekstra

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People v. Hoekstra

State: Illinois

Court: 2nd District Appellate

Docket No: 2-05-0443 Rel

Case Date: 02/22/2007

Preview:No. 2--05--0443

Filed 2/22/07

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER J. HOEKSTRA, Defendant-Appellant.

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Appeal from the Circuit Court of Stephenson County.

No. 03--CF--178 Honorable Charles R. Hartman, Judge, Presiding.

PRESIDING JUSTICE GROMETER delivered the opinion of the court: Defendant, Roger J. Hoekstra, filed a pro se postconviction petition (see 725 ILCS 5/122--1 et seq. (West 2004)) in the circuit court of Stephenson County, alleging that his attorney rendered ineffective assistance at trial. Defendant had previously entered a guilty plea to a charge of burglary (720 ILCS 5/19--1 (West 2004)) and was sentenced to 12 years' imprisonment. Defendant also asserts that the mittimus should be amended. The circuit court found that the petition did not state the gist of a meritorious claim and dismissed it. Defendant now appeals, and, for the reasons that follow, we affirm. This case arose from a burglary that occurred at Mr. Ed's tavern in Winslow, Illinois. The establishment's owner, Ed Metz, awoke when he heard a noise coming from his bar, which is adjacent to his residence. He entered the bar and observed defendant flee through the back door. Metz went to the back door and saw defendant enter a van. The van departed to the north. He called

No. 2--05--0443 the sheriff's department, and a deputy was dispatched at about 3:52 a.m. At 4:02 a.m., a van was stopped by Green County deputies, who took defendant into custody. In addition to defendant, another individual was in the van. Green County is in Wisconsin. Stephenson County deputies took custody of defendant and transported him to Mr. Ed's. Metz identified defendant. Additional facts will be presented below as they pertain to the issues defendant raises. Defendant claims that trial counsel was ineffective for two related reasons. First, he argues that trial counsel should have filed a motion to quash his arrest and suppress evidence because no reasonable suspicion existed to justify a Terry stop at the time he was first detained. Second, he asserts that trial counsel erred in failing to file a motion to quash and suppress based on the facts that Illinois deputies took him into custody in Wisconsin and transported him back to Illinois. Regarding the latter point, defendant claims that the Illinois deputies lacked authority to act in Wisconsin and that extradition procedures should have been followed. This case comes to us following the summary dismissal of a postconviction petition, so review is de novo. People v. Simms, 192 Ill. 2d 348, 360 (2000). Following the filing of a postconviction petition, a trial court may, within 90 days, dismiss it if it is frivolous or patently without merit. People v. Jones, 211 Ill. 2d 140, 144 (2004). To survive dismissal at this stage, the petition need present only the gist of a constitutional claim. People v. Gaultney,174 Ill. 2d 410, 418 (1996). This is a low standard, and a petitioner need present only a limited amount of detail and need not support the claim with legal argument or citation to authority. People v. Edwards, 197 Ill. 2d 239, 244 (2001). All well-pleaded factual allegations contained in the petition are to be taken as true. People v. Williams, 364 Ill. App. 3d 1017, 1022 (2006). The Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2004)) provides a remedy for substantial violations of a

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No. 2--05--0443 defendant's rights under either the state or the federal constitution. People v. Leason, 352 Ill. App. 3d 450, 453 (2004). Since both of defendant's claims allege the ineffective assistance of counsel, the standards set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), apply. People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). To succeed on such a claim, a defendant must show both that his counsel's performance "fell below an objective standard of reasonableness" (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064) and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. To satisfy the first portion of the Strickland test, a defendant must show that his attorney's performance fell below an objective standard as measured by prevailing professional norms. People v. Spann, 332 Ill. App. 3d 425, 430 (2002). There is a strong presumption, which a defendant must overcome, that counsel's performance "falls within the wide range of reasonable professional assistance." People v. Miller, 346 Ill. App. 3d 972, 982 (2004). Decisions involving judgment, strategy, or trial tactics will not support a claim of ineffective assistance. People v. Lindsey, 324 Ill. App. 3d 193, 197 (2001). Regarding the prejudice portion of the analysis, a defendant, following a guilty plea, need demonstrate only a reasonable probability that, but for counsel's errors, he or she would have refrained from entering a guilty plea and insisted on proceeding to trial. Miller, 346 Ill. App. 3d at 982. We will first address defendant's claim that trial counsel should have filed a motion to quash and suppress based on the lack of reasonable suspicion to conduct a Terry stop. Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and its progeny, a police officer may

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No. 2--05--0443 briefly detain an individual to investigate potential criminal conduct if he or she has a reasonable and articulable suspicion that criminal activity is afoot. People v. Hubbard, 341 Ill. App. 3d 911, 915 (2003). In determining whether a detention was warranted, a court must consider the totality of the circumstances, viewed from a commonsense perspective. Hubbard, 341 Ill. App. 3d at 915. A reasonable suspicion is more than a hunch, but it is less than probable cause and far less than proof by a preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989). The analysis is objective, requiring the court to assess whether "the facts available to the officer at the moment of the [stop would] ' "warrant a man of reasonable caution in the belief" that the action taken was appropriate.' [Citation]." People v. Moss, 217 Ill. 2d 511, 529 (2005). Two additional principles guide our inquiry. First, the collective knowledge of all of the officers involved in the apprehension of defendant may be considered in determining whether a reasonable suspicion existed. See People v. Fox, 155 Ill. App. 3d 256, 263 (1987) ("Where officers are working together, the knowledge of each is the knowledge of all, and the arresting officer has the right to rely on the knowledge of the officer giving the command together with his own personal knowledge. [Citations.] Probable cause for an arrest may be established on the basis of all the information by the officers working in concert [citations], and, even if such knowledge is not told to the arresting officer, it may be considered by the trial court in determining whether there was probable cause so long as such information was somehow placed in the record [citation]"). Second, any actions defendant took prior to the time he submitted to the authority of the police officers who initially stopped him may also be considered in determining whether the police had a reasonable suspicion of criminal activity to justify the stop. People v. Brodack, 296 Ill. App. 3d 71, 75 (1998)

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No. 2--05--0443 ("In other words, absent physical force, a police show of authority in activating lights and siren does not amount to a stop until the defendant submits to the show of authority"). Defendant relies on one allegation in arguing that his counsel rendered ineffective assistance at trial in this regard. Defendant points out that Richard Roodhouse, a Stephenson County deputy, testified that Metz stated that the person he chased from his tavern got into a blue van. The van defendant was in was actually green. If this were the only relevant fact, we would likely agree with defendant. However, the record reveals other facts that the police could have relied on in stopping defendant. The stop occurred shortly after the burglary and about nine miles away from Mr. Ed's. That a defendant is stopped in the vicinity of a crime shortly after it occurred has been held to be indicative of a reasonable suspicion that the defendant had committed the crime. People v. Hubbard, 341 Ill. App. 3d 911, 915 (2003). While many cases that rely upon this factor in support of a finding of reasonable suspicion involve distances of much less than nine miles, in People v. Mascarenas, 666 P.2d 101, 108 (Colo. 1983), the Supreme Court of Colorado found that a reasonable suspicion existed where the defendant was found 17 miles from a crime scene. Indeed, one Illinois case found that, despite the passage of four hours, the fact that the defendant was located five miles from the scene of a crime was a factor in finding that probable cause existed to arrest the defendant. People v. Williamson, 319 Ill. App. 3d 891, 898 (2001). Moreover, we note that defendant was stopped at about 4 a.m. in an area that is not populous. We take judicial notice that the population of Stephenson County is under 50,000 and the population of Green County is about 35,000. DiModica v. Department of Employment Security, 164 Ill. App. 3d 445, 448 (1987) (court may judicially notice population). That the van was stopped in the middle of the night in an area that was not very populous indicates that there were likely not many other

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No. 2--05--0443 similar vehicles in the vicinity. Cf. People v. Dyer, 141 Ill. App. 3d 326, 331 (1986) (rural setting and absence of other vehicles in area contributed to officer's reasonable suspicion); People v. Waln, 120 Ill. App. 3d 73, 77 (1983) (despite absence of description of vehicles, officer justified in stopping the only two cars he observed in the area). Additionally, Metz stated that the van departed in a northerly direction. Defendant was apprehended in Wisconsin, which is north of Illinois. That the van was observed moving in the direction it was reported to be heading further strengthens the basis that the Green County deputies had for stopping it. People v. Bujdud, 177 Ill. App. 3d 396, 402 (1988) (considering fact that officer observed vehicle coming from direction of crime as contributing to basis for Terry stop); People v. Jackson, 145 Ill. App. 3d 789, 793 (1986) ("In addition, [the police officer's] first sighting of the van coincided in time, distance and direction with the information from the radio messages"). Defendant's behavior immediately preceding the seizure also contributed to a reasonable suspicion that he had committed a crime. As we noted previously, all information prior to the time a defendant submits to the authority of a police officer may be considered in determining whether a reasonable suspicion exists. Brodack, 296 Ill. App. 3d at 75; Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 70 (1988) ("We conclude, however, that the reckless driving complaint to the police department, Officer Agos' observation of defendant's car, which matched the description, license number and general location of the car in corroboration of the complaint, coupled with defendant's lack of response to the officer's request to pull his car over, were sufficient to permit an investigatory stop" (emphasis added)). As the Green County deputies were attempting to stop it, a jacket and a pair of gloves were thrown from the van. That the occupants of the van were discarding clothing leads to a strong inference that they were trying to conceal something, namely their identities, if they

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No. 2--05--0443 feared that the clothing could be identified, or the clothing itself, if it was stolen. We can conceive of no innocent reason to be discarding such items from a moving vehicle. Parenthetically, we note that littering is an offense in Wisconsin (Wis. Stat. Ann.

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