Court affirms dismissal of petition that alleged that trial counsel prevented him from testifying

The appellant in People v. Knapp, 2019 IL App (2d) 160162 appealed the decision of the Circuit Court of McHenry County to summarily dismiss his pro se petition alleging ineffective assistance of counsel on grounds that the record positively rebutted his claims. The Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of McHenry County and assessed statutory State’s Attorney Fees.

Following a conviction at trial for attempted first degree murder, two counts of aggravated battery and mob action, appellant Justin Knapp was sentenced to 16 years in Illinois Department of Corrections. Id. at ¶ 1. Eyewitness testimony presented at trial placed Knapp at the scene of the attempted murder and stabbing, positively identified him as a member of the Nortenos 14 street gang, identified the victim, Jorge Ativia, as a member of a rival gang, the Latin Kings, detailed threats of sexual assault and murder made to investigative police officers responding to the stabbing, and identified a missing knife from the kitchen of a home that Knapp had forced himself into. Id. at ¶ 5-22.

Knapp chose not to testify at his trial, and confirmed that he had discussed the decision not to do so at length with his defense counsel prior to jury instructions. Id. at ¶ 23. The jury found Knapp guilty on all counts. Id. at ¶ 25. Immediately thereafter, Knapp appealed his conviction and sentence. The Appellate Court of Illinois Second District affirmed his conviction and sentence on direct appeal in People v. Knapp, No. 2-09-0089 (2010). Id. at ¶ 26.

In November 2015, Knapp filed a pro se petition pursuant to the Post Conviction Hearing Act, alleging actual innocence, involuntary waiver of his right to testify, and ineffective assistance of appellate counsel. Id. at ¶ 28. In regard to Knapp’s involuntary waiver of his right to testify, the petition alleged that his decision was induced by “his attorney illegally withholding information critical to [his] decision thus rendering his decision involuntary.” Id. at ¶ 29. This claim included allegations that defense counsel had advised Knapp against testifying to a different account of events surrounding the fight that preceded the stabbing, the subject of that fight, and a witness’s gang affiliation. Id. at ¶ 29.

Knapp also alleged that his counsel instructed him during “in-trial conversations,” that his account of events was “unsupported by evidence.” Id. at ¶ 30. Knapp’s petition was dismissed by written order from the trial court on the grounds that his claim of actual innocence was insufficient and not supported by documents attached to the petition. The court found that the second claim was barred by res judicata and forfeiture, and the court found the claim of ineffective assistance of trial counsel to be frivolous and patently without merit. Id. at ¶ 30.

On appeal, Knapp only argued that the trial court erred with respect to his second claim– that trial counsel was ineffective for not allowing defendant to testify, citing People v. Palmer, 2017 IL App (4th) 150020, People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009), and People v. Whiting, 365 Ill. App. 3d 402, 408 (2006). Id. at ¶ 32.

The appellate court’s review of the post-conviction petition was de novo, and the court considered exclusively whether the petition presented “the gist of a constitutional claim” in order to survive the first stage of review. Id. at ¶ 37. In order to prevail on a claim of ineffective assistance of counsel, counsel’s performance must be demonstrated to be “objectively unreasonable under prevailing professional norms and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at ¶ 38. The court asserted that claims of ineffective assistance of counsel must “overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence.” Id. at ¶ 38.

The appellate court rejected Knapp’s argument that it could be inferred from the details provided that appellant “communicated a desire to testify to counsel both before and during trial” rather than expressly stating that he had informed trial counsel of his desire to testify. Id.at ¶ 39. As a result, the court concluded that the petition failed to establish “even the gist that trial counsel’s performance was deficient.” Id. at ¶ 39. The court added that advice not to testify is a matter of trial strategy that does not amount to ineffective assistance of counsel (unless counsel refuses to allow the defendant to testify, which had not been established by the record), and even if it did, it was clear from the record that trial counsel discussed “at great length” the decision not to testify, which would also be considered trial strategy. Id.at ¶ 39. The court cited Youngblood in support of this analysis. The court expounded further that even if it were to find trial counsel’s performance deficient, the petition failed to establish prejudice, as appellant had not indicated he would have denied participating in the attack had he been called to testify. Id. at ¶ 42.

As such, the court concluded that because a claim is without merit when it is rebutted by the record, appellant’s petition and its claim that trial counsel was ineffective for not allowing defendant to testify was without merit. Id. at ¶ 43. Moreover, the court’s conclusion indicated that appellant’s petition both failed to overcome the presumption that the actions of counsel were not the product of trial strategy and failed to establish even “the gist of a constitutional claim.”

The Appellate Court of Illinois Second District affirmed the Circuit Court of McHenry County’s order dismissing appellant’s post-conviction petition and granted the State’s request for $50 in costs for the appeal. Id. at ¶ 67.

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