People v. Smith

                                          No. 1-22-1496
                                  Opinion filed December 22, 2023


                                                                                    Sixth Division
 ______________________________________________________________________________
                                              IN THE
                                 APPELLATE COURT OF ILLINOIS
                                        FIRST DISTRICT
 ______________________________________________________________________________
 THE PEOPLE OF THE STATE OF ILLINOIS,                         )   Appeal from the Circuit Court
                                                              )   of Cook County, Illinois.
          Plaintiff-Appellee,                                 )
                                                              )
     v.                                                       )   Nos. 10 CR 21516 & 12 CR
                                                              )   5787
 ANTONIO SMITH, a/k/a Antonio Cookbay,                        )
                                                              )
          Defendant-Appellant.                                )   The Honorable
                                                              )   Alfredo Maldonado,
                                                              )   Judge, Presiding.



        JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.
        Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment and
 opinion.

                                           OPINION


¶1     At the first stage of postconviction proceedings, the circuit court summarily dismissed as

frivolous and patently without merit Antonio Smith’s petition. On appeal, Smith argues the circuit

court’s summary dismissal was error because the petition states the gist of a constitutional claim

that appellate counsel was ineffective for failing to argue that Smith’s concurrent sentence of 50
No. 1-22-1496


years was excessive on direct appeal. For the following reasons, we reverse the postconviction

court’s judgment and remand for second-stage proceedings.

¶2                                       I. BACKGROUND

¶3     Following a bench trial, Smith was found guilty of three counts of home invasion and one

count of aggravated battery of Charles Wilson Jr. in case No. 10-CR-21516. Smith was also found

guilty of four counts of aggravated kidnapping, two counts of aggravated domestic battery and one

count of aggravated battery with the use of a firearm against Tasha Williams in case No. 12-CR-

5787. The trial court sentenced Smith to prison terms of 50 years for home invasion, 45 years for

aggravated kidnapping, and 30 years for aggravated battery with a firearm to be served

concurrently. This court affirmed Smith’s convictions in People v. Cookbay, 

. 1 On June 8, 2022, Smith filed a pro se postconviction petition, and the postconviction

court summarily dismissed the petition at the first-stage proceedings. Smith appeals the court’s

summary dismissal of the petition.

¶4                                          A. Sentencing

¶5     At the sentencing hearing, the State presented two witnesses in aggravation. Chicago police

officer Anthony Brown testified that, on November 26, 2010, Brown took Smith to the hospital.

Five other police officers accompanied Brown including Officer Wilson, Officer Tong, and Officer

Lewis. Brown was pushing Smith in a wheelchair to an X-ray room when Smith became “very

combative.” Smith spit in Lewis’s face and bit Brown’s right index finger. Smith also attempted

to bite Tong but was unsuccessful. Brown eventually gained control of Smith, and Smith was

criminally charged as a result of the incident.


       1
           Smith is also known as Antonio Cookbay, Antonio Cookbey, and Montell Woods.

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¶6     Cook County correctional investigator Brendon Lombardi testified that he was reviewing

mail being sent in and out of his division when he encountered mail addressed to Preston Johnson

from an inmate named Montell Woods on August 13, 2014. Lombardi testified that Smith was in

custody under the name Montell Woods at that time. Lombardi read the letter 2 in court:

                  “It starts off, Dez, 8-1014. What’s good big brother, I hear yourself back down like

       mackdown (phonetic). And that’s a good thing because you need your little bro, me, out

       there with you. Like they say, two eyes better than one. I miss you, brother Dez. I think

       about my homie all the time. I hope you do, too. I should start trial 9/22/14, and time is

       good. I need you to demo with what we talked about in Division 1. They stay 5524 South

       Wolcott Street, one floor. Go by the names Red and Nate. They brothers. Sister’s name

       Tasha. Whole names Red a/k/a Charles Wilson, sister Tasha Wilson, Nate a/k/a Nathaniel

       Roberts.

                  Borther Dez, please get with them so I can be side by side with my homie. Okay?

       You know I ain’t got nobody out there but you, Dez. Don’t let me down. I hope you like

       life out there and watch out for them ones who like you the whole nine. I’m about to go. I

       love you. Pray to Allah. I hear soon from you. Always love you, big bro. Your little bro,

       Crayhead (phonetic). Soon.”

Upon further investigation, Lombardi discovered Johnson and Woods were housed in the same

division around 2011.

¶7     During argument, the State asserted that the offenses committed by Smith were “egregious”

in nature. The State detailed how Smith kidnapped Tasha, made her strip naked, branded her body


       2
           A physical copy of the letter does not appear in the record on appeal.

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No. 1-22-1496


with a burned hanger, poured bleach on her, and beat her. After Tasha escaped, Smith went to her

family’s house where he “continu[ed] his reign of terror against this family and shot the brother in

the stomach and, at some point, kidnapped the other brother.” The State contended Smith had not

changed his ways after his arrest and continued to do things like biting and spitting at police

officers and asking someone to “demo or contact” the witnesses to the offenses. The State noted

defendant’s criminal background, including his convictions for possession of cannabis, felony

resisting and obstructing an officer, domestic battery, resisting and obstructing an officer, felony

manufacturing and delivering of cannabis, possession of a stolen motor vehicle, and possession of

a controlled substance with intent to deliver.

¶8     Defense counsel argued that Smith had a difficult upbringing. He stayed in the care of the

Department of Children and Family Services until he was five or seven years old. He did not have

a relationship with his mother and did not come into the care of his father until he was seven years

old. Smith only completed the eighth grade and was in a special education program. He started

drinking and smoking marijuana at 13 years old. Counsel explained that Smith hung out with

people affiliated with gang organizations, was shot when he was in his twenties, and “suffered

from the consequences of the streets.” Counsel also stated that Smith had a lack of violence in his

background. Aside from the hospital incident and the letter to Johnson, Smith did not have “any

notable violent behavior or behavior that is unusual” since his incarceration during the last five

years. Smith had also been respectful in court.

¶9     Smith submitted a letter to the court. The letter stated as follows:

                “Dear Judge,




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                I[’]m writing you this letter because I want a[n] understanding with you your honor.

       I[’]m not saying myself not guilty or guilty. I[’]m just asking please can I have a fair trial

       in your court room Judge Goebel! I know you been [hearing] about how I been acting in

       other court rooms. It[’]s just I be going through a lot in the jails over here with these officers

       and inmates here. And I never been lockup for non[e] like this before and it take a toll on

       me your honor. I[’]m a good person sir just did wrong with my life. I know *** when we

       first [met] each other it was a [rough] ride—cause I went pro-se, but all along your honor

       you was helping me out cause I didn’t know non[e] about the law like the courts. You had

       to make it hard for me to show I was making the wrong choices in life! Now I see and I see

       yourself a good judge—and not working with the State an[d] yourself about the law Judge

       Goebel. I never been to trial and I pray everything go all is well. A lot of guys who had you

       say you a fair judge and go by the law, your honor I don’t know what’s about to happ[e]n

       at trial all I[’]m asking is you please let me see my youth again. Why I say that is because

       since b[een] here 5 years I see a lot of people find guilty and get a lot of time, not saying

       me cause God is good and work threw a lot of people in this world. And give people other

       change in life ask I see you your honor I know you a man of God. I[’]m about to go take

       care [Judge] Goebel and I hope you doing good in life God bless.”

¶ 10   The sentencing court stated that it read the letter. The sentencing court noted Smith was

loud in the lockup area prior to defense counsel’s involvement in the case, but it would not consider

it during sentencing. The sentencing court also noted Smith had been “respectful and polite” in the

courtroom and it was not considering Smith’s conduct while Smith was pro se.




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¶ 11   During its determination, the sentencing court stated that it considered all the factors in

aggravation and mitigation and relied on the presentence report, sentencing witnesses’ testimony,

the parties’ arguments, and Smith’s letter. The sentencing court found Smith did not have a “really

good childhood” and “got caught up with the wrong crowd.” However, the sentencing court found

the facts of the case important in his determination. The sentencing court mentioned Tasha “was

super scared of what she went through and of what [Smith] put her through.” Smith “did go looking

for her and entered into the house without permission and pointed a gun at the victim’s head in the

house and pulled the trigger.” The sentencing court also found Smith had a “significant

background.” In all, the sentencing court concluded, “I do believe, [Smith], that you do not have

much rehabilitative potential. And I’m going to tell you that honestly. And I do agree with the

State that you’re dangerous.”

¶ 12   The court sentenced Smith to 50 years’ imprisonment—30 years plus a 20-year sentencing

enhancement—on the home invasion conviction, 45 years’ imprisonment—30 years plus a 15-

year sentencing enhancement—on the aggravating kidnapping conviction, and 30 years’

imprisonment on the aggravated battery conviction to be served concurrently. All remaining counts

merged with the home invasion and aggravated kidnapping convictions. Smith filed a motion to

reconsider sentence, which the court denied.

¶ 13                                    B. Direct Appeal

¶ 14   Smith appealed, arguing (1) the evidence was insufficient to convict him of home invasion,

aggravated battery, and aggravated kidnapping and (2) his convictions for home invasion and

aggravated battery violated the one-act, one-crime doctrine. This court affirmed Smith’s

convictions and sentence. Cookbay, 

.



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No. 1-22-1496


¶ 15                              C. Postconviction Proceedings

¶ 16    On June 8, 2022, Smith filed a pro se postconviction petition, an amended petition, and a

document detailing additional claims attached to his motion to proceed in forma pauperis and to

appoint counsel. In these documents, Smith alleged several claims including that his “125 year

de facto life sentence” was excessive and that appellate counsel was ineffective for failing to “raise

a patently meritorious issue on appeal.” On August 25, 2022, the postconviction court summarily

dismissed the petition. The postconviction court found Smith was mistaken in his claim that he

was sentenced to 125 years because his sentence was concurrent, not consecutive. Even

considering Smith’s concurrent prison term of 50 years, the postconviction court found Smith

sentence was within the statutory range and not excessive. Regarding Smith’s claim of ineffective

assistance, the postconviction court never addressed whether appellate counsel was ineffective for

failing to raise a claim of excessive sentence on direct appeal. Rather, the postconviction court

addressed whether appellate counsel was ineffective for failing to raise a claim that Tasha was

coerced into testifying against Smith when she was pulled over by police in 2012. The

postconviction court held the claim was frivolous and patently without merit because there was no

evidence to support the claim. Smith now appeals the postconviction court’s summary dismissal

of the petition.

¶ 17                                    II. JURISDICTION

¶ 18    On August 25, 2022, the postconviction court summarily dismissed Smith’s petition at

first-stage proceedings. Smith filed a notice of appeal on September 26, 2022. Smith’s notice of

appeal is timely where the thirtieth day after the judgment fell on a Saturday and the notice of

appeal was due the following Monday, September 26. See 5 ILCS 70/1.11 (West 2022) (“The time



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within which any act provided by law is to be done shall be computed by excluding the first day

and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed

in any statute now or hereafter in force in this State, and then it shall also be excluded.”). Therefore,

we have jurisdiction over this appeal pursuant to article VI, section 6, of the Illinois Constitution

(Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).

¶ 19                                       III. ANALYSIS

¶ 20      On appeal, Smith argues that the postconviction court erred in summarily dismissing his

petition as it states the gist of a constitutional claim of ineffective assistance of appellate counsel

for failing to argue that his sentence was excessive on direct appeal. The State contends that the

claim is waived because Smith did not allege it in his petition. The State further asserts Smith

failed to state the gist of a constitutional claim where the sentencing court imposed an appropriate

sentence in light of the evidence and a claim of excessive sentence would not be meritorious on

appeal.

¶ 21                                          A. Waiver

¶ 22      We first address the State’s waiver argument. The State argues that, even construing the

pleadings liberally, Smith waived his claim of ineffective assistance of appellate counsel. The State

contends Smith only alleged a claim of excessive sentence in his postconviction petition and never

referenced appellate counsel’s failure to raise the claim. The State also contends that, while Smith

did raise a claim ineffective assistance of appellate counsel in another document filed with the

original and amended postconviction petitions, the claim was vague and did not specify any

underlying facts as to appellate counsel’s ineffectiveness. The State alleges because Smith’s claims




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of excessive sentence and ineffective assistance of appellate counsel are distinct and raised in

separate filings, Smith impermissibly raises a new claim on appeal.

¶ 23   As it pertains to postconviction claims, “[a]ny claim of substantial denial of constitutional

rights not raised in the original or an amended petitions is waived.” 725 ILCS 5/122-3 (West 2022).

A defendant may not raise claims for the first time on appeal from the trial court’s dismissal of his

postconviction petition. People v. Cathey, 

.

¶ 24   In this case, Smith filed an “opening to petition,” an “amended petition for post-conviction

relief,” and a “motion to proceed in forma pauperis and to appoint counsel” on the same day. The

initial petition makes no reference to excessive sentencing or ineffective assistance of appellate

counsel. In the amended petition, Smith alleged that his “125 year de facto life sentence is

excessive” but made no mention of appellate counsel’s ineffectiveness. The motion to proceed was

accompanied by a five-page document stating “new claims attached” to the petition. On the second

page of the document under a heading titled “Claim II: Mr. Smith Constitutional Rights to Due

Process Rights a Fair Trial Were Violated During Sentencing,” Smith states the following:

                “[5]. Mr. Smith was denied his due process rights under the 6th an[d] 14th

       Amendment[s] of the U.S. Constitution and Art. 1, Sec. 2 of the Illinois Constitution.

                [6]. The due process clause demand[s] a great deal of procedural protection when

       a defendant’s liberty is at stake. The U[.S.] Supreme Court has characterized a citizen’s

       liberty interest as ‘an interest of transcending value.’ [Citation.] Due process ‘embodies the

       notion of fundamental procedural fairness.’ [Citation.]




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                7. Mr. Smith trial lacked the fundamental fairness impli[ed] in constitutional

      guarantees of due process of law. Thu[s] entitling him to a new trial or new sentencing

      hearin[g].

                8. It is of no consequence that the falsehood bore upon the witness’ credibility rather

      then directly upon defendant’s guilt. A lie is a lie. No matter what it’s subject ([citation]).

                9. In addition, during sentencing, prosecutors used inflammatory and erroneous

      statements in closing arguments designed to arouse the prejudices and passions of the court.

      Prejudicing defendant’s right [to] a fair trial. Mr. Smith is entitled to a new sentencing

      hearing with an accurate record. [Citation.]

                [10.] Mr. Smith[’s] attorney presented [a] defense—that [Mr.] Smith[’s] step

      mother[,] sister[,] and kids were there [in] the house when Tasha say these brutal acts were

      occurred. Evidence presented at this trial include[e] only the nurse who treated Tasha at

      the hospital. Ho[w]ever, the mother, sister, and her 7 an[d] 8 year old daughter[rs] were

      not called to testify. My attorney was ineffecti[ve] because she lacked a lot of evidence at

      trial what could of helped [our] defense. Like making sure witness[es] Tasha[’s] mom [and]

      Charles Wilson Sr. were here to take the stand to testify.

                [11.] Ineffective assistance of counsel exists where counsel performance fell below

      an objective stand[ard] of reasonableness and there is a reasonable probability that the

      result of the proceeding would have been different if counsel would of [raised] these issues.

      [Citations.] A reasonable probability is a probability suffic[e] [to] undermine confidence

      in the outcome. [Citation.]




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                [12.] An attorney may be deemed ineffective for failing [to] call witness to support

       an otherwise uncorroborated defense theory. *** [Citation.]

                [13]. My appellate lawyer is ineffective because he fa[iled] to raise a patently

       meritorious issue on appeal. [Citations.] Furthermore, an appellate attorney’s failure to

       raise [an] issue on appeal is “patently unreasonable” under Strickl[and] and Evitts, supra,

       where there is ‘no downside’ [ ] to rais[ing] the issue on appeal. [Citation].

                [14.] Had appellate counsel raised these issues in petitioner’s direct appeal it is

       probable that the appellate court would have found such a structural error and reversed

       petitioner’s conviction.

                [15.] Evidence of past witness coercion by the same office that pulled Tasha over

       in 2012 involved here may well have made a difference in the outcome of this case.

       Particularly where there is no evidence other th[en] the recanting witnesses’ inconsistent

       statements tying (the defendant) to the shooting. [Citation.]

                (Conclusion)

                Wherefore, petitioner Antonio Smith Respectfu[lly] requests that this honorable

       court grant him rel[ief] in the form of a ruling in his favor on the pleadi[ng] or in the

       alternative that petitioner be given a [new] trial following a hearing.”

¶ 25   The amended petition reveals Smith raised a comprehensible claim of excessive sentence.

However, given the various divergent legal and factual allegations in claim II in the additional

document, the claim of ineffective assistance of appellate counsel is presented in an incoherent

manner. The “issues” that appellate counsel allegedly failed to raise are not explicitly stated in the

allegations concerning ineffective assistance. The other assertions surrounding the allegations of


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No. 1-22-1496


appellate counsel’s ineffectiveness are also unhelpful in our assessment. In the heading, Smith

states that his due process rights were violated during sentencing. However, he only raises one

allegation pertaining to the prosecutor’s closing remarks during sentencing and raises several

alleged trial errors in the remaining allegations.

¶ 26   In the face of this conundrum, we are guided by our established precedent that petitions

filed pro se must “be given a liberal construction” and are to be viewed “ ‘with a lenient eye,

allowing borderline cases to proceed.’ ” People v. Hodges, 

 (2009) (quoting

Williams v. Kullman, 

 (2d Cir. 1983)). To survive summary dismissal, a pro se

postconviction petitioner is not required to allege facts supporting all elements of a constitutional

claim. People v. Brown, 

 (2010). “While in a given case the pro se defendant

may be aware of all the facts pertaining to his claim, he will, in all likelihood, be unaware of the

precise legal basis for his claim or all the legal elements of that claim.” People v. Edwards, 

 (2001). As such, a pro se defendant is required to present only the gist of a

constitutional claim, which is “something less than a completely pled or fully stated claim.” 

¶ 27   The State cites several cases to support its argument that the “general and vague claim of

ineffective assistance of appellate counsel” is separate and distinct from the claim of excessive

sentence. In these cases, this court found a petitioner waived a postconviction claim on appeal

when the defendant completely omitted either a claim of ineffective assistance of counsel or the

nature of the issue underlying the ineffective assistance claim in his or her postconviction petition.

See People v. Shief, 

 (finding waiver where the petition did not

alleged the issue underlying the ineffective assistance of appellate counsel claim); People v.

Williams, 

 (finding waiver where petition did not mention



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ineffective assistance of appellate counsel); People v. Reed, 

(finding waiver where the petition did not alleged issues underlying the ineffective assistance of

appellate counsel claim); People v. Mars, 

 (same); People v. Cole,

 (finding waiver where petition made no mention of appellate

counsel’s ineffectiveness). However, unlike the petitions reviewed in these cases, Smith’s petition

alleges both appellate counsel’s ineffectiveness for not raising a meritorious issue on direct appeal,

albeit broadly, and the underlying issue—excessive sentence. Therefore, these cases are

distinguishable from this case.

¶ 28    In a case more factually analogous, this court held that the petitioner did not waive his

postconviction claim on appeal although his claims of excessive sentence and ineffective

assistance of appellate counsel were incohesive. See People v. Williams, 

. There, the petitioner argued on appeal that appellate counsel was ineffective for failing

to challenge his sentence as excessive. 

. The postconviction petition alleged, in a disjointed

fashion, that appellate counsel “ ‘was ineffective for failing to raise issues on direct appeal’ ” and

that the trial court “ ‘sentenced [him] excessively.’ ” 

 The court held that, in construing the

petition liberally, the petitioner’s “failure to ‘artfully connect’ the two statements in his petition is

not fatal to his ability to pursue the claim at issue on appeal. 

¶ 29    We find compelling the court’s rationale in Williams. Here, the record shows Smith argued

his sentence was excessive in his amended petition and argued, albeit broadly, appellate counsel

was ineffective for failing to raise a patently meritorious issue on direct appeal in the document

attached to the motion to proceed, which Smith filed on the same day as the original and amended

petitions and the court considered along with the petitions at the first-stage proceedings. Viewing



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the petition liberally, we find Smith sufficiently brought a postconviction claim of ineffective

assistance of appellate counsel for failing to raise a claim that his sentence was excessive on direct

appeal. Accordingly, we hold that Smith did not waive his postconviction claim in this appeal.

¶ 30                              B. Post-Conviction Hearing Act

¶ 31   Finding no waiver, we now turn to the merits of the claim on appeal. Smith argues the trial

court erred in summarily dismissing his postconviction petition at the first-stage proceedings.

Smith posits that the petition states the gist of a constitutional claim that appellate counsel rendered

ineffective assistance by failing to raise an excessive sentence claim on direct appeal. Specifically,

Smith claims that the petition alleged the record does not support the trial court’s imposition of a

“de facto life sentence” of 50 years’ imprisonment and that this court would have granted

sentencing relief on direct appeal. The State contends the trial court imposed an appropriate

sentence based on the evidence and Smith impermissibly requests this court reweigh the sentencing

factors. As such, the State asserts no meritorious claim of excessive sentence existed and,

therefore, the petition failed to state the gist of a constitutional claim of ineffective assistance of

appellate counsel.

¶ 32   The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides

a mechanism by which a criminal defendant can assert that his conviction and sentence were the

result of a substantial denial of his rights under the United States Constitution, the Illinois

Constitution, or both. The Act provides a three-stage process for adjudicating postconviction

petitions. People v. English, 

. At the first stage, a trial court considers whether

the postconviction petition is frivolous or patently without merit. Brown, 

. The

trial court reviews the petition on its own, without input from the parties. 

 The court may review



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No. 1-22-1496


the court file, the transcripts, and any appellate court actions. 

 The court treats the allegations of

fact as true so long as those allegations are not positively rebutted by the record. 

.

¶ 33    Any petition deemed frivolous or patently without merit must be dismissed. 725 ILCS

5/122-2.1(a)(2) (West 2022). A petition is frivolous or patently without merit where it has no

“arguable basis either in law or in fact” in that it is “based on an indisputably meritless legal theory”

or fanciful factual allegations. Hodges, 

. “An indisputably meritless legal theory is

one which is completely contradicted by the record.” 

 “Fanciful factual allegations include those

which are fantastic or delusional.” 

.

¶ 34    A pro se petitioner is not required to allege facts supporting all elements of a constitutional

claim. Mars, 

. Because a pro se petitioner will likely be unaware

of the precise legal basis for his claim, the threshold for survival is low, and a pro se petitioner

need allege only enough facts to make out a claim that is arguably constitutional for purposes of

invoking the Act. Hodges, 

. However, the petition must “ ‘clearly set forth the

respects in which the petitioner’s constitutional rights were violated.’ ” 

 (quoting 725 ILCS

5/122-2 (West 2006)). We review de novo the dismissal of a postconviction petition at the first

stage. 

¶ 35    Smith’s ineffective assistance of appellate counsel claim is evaluated under the two-part

test set forth in Strickland v. Washington, 

 (1984), and adopted by our supreme court

in People v. Albanese, 

 (1984). Under Strickland, defense counsel was ineffective

if (1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s

error prejudiced the defendant. Strickland, 

. “We assess counsel’s performance

using an objective standard of competence under prevailing professional norms.” People v.



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Ramsey, 

 (2010). We assess prejudice by determining whether “counsel’s

deficient performance rendered the result of the trial unreliable or fundamentally unfair.” People

v. Evans, 

 (2004). In the context of a first-stage postconviction claim, a

defendant need show only that he can arguably meet those two standards, i.e., it is arguable that

his counsel was deficient and it is arguable that the outcome of his case would have been different

absent the deficient representation. Hodges, 

.

¶ 36   In a document titled “new claims” attached to the motion to proceed, Smith alleged that his

“appellate lawyer is ineffective because he fa[iled] to raise a paten[t]ly meritorious issue on

appeal.” He alleged, pursuant to the Illinois constitution, “[all] penalties are to be determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Citing case law, Smith further alleged “a reviewing court may disturb a sentence

within statutory limits if the sentence is greatly at variance with the spirit and purpose of the law,

or manifestly disproportionate to the nature of the offense.”

¶ 37   In the petition and attached documents, Smith raised the following allegations. Smith

claimed the trial court abused its discretion in imposing the sentence because the sentence was

“unusually harsh, [is] at the higher end of the sentencing spectrum for those offenses, and that the

punishment does not fit the crime.” The sentence is “equivalent to a life sentence” because he “will

be 71 years old when he is released” and the life expectancy of a prisoner is 65 years of age. The

trial court imposed the “most stringent” sentence when “only one physical act of home invasion

occurred in this case.” Furthermore, the court imposed the sentences “without regard for a

particular defendant’s rehabilitative potential.” Specifically, “despite having a checkered past,

prior to this case, petitioner held a job at a telephone communications company for ‘Boost Mobile,’



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and was employed at 9 different ‘Foot Locker’ shoe stores.” Smith also “assisted the elderly people

by cleaning up around their houses and going to the store for them” and “counseled at risk youth

in his neighborhood.” Smith “helped to raise his nieces” and “dedicated a significant amount of

time to providing home care to his father.” Considering these factors, the trial court abused its

discretion by “not applying the above named principles and consider petitioner’s rehabilitative

potential, and impose his sentence with the objective of restoring him to useful citizenship.”

¶ 38    In view of these allegations, it is arguable that counsel rendered deficient performance.

Smith alleged that appellate counsel failed to raise a meritorious claim of excessive sentence.

Smith further alleged his sentence was excessive because the constitution mandates that a sentence

must be determined in light of the offender’s rehabilitative potential and the court’s imposition of

the maximum sentence 3 was at variance with the mitigating evidence. It is also arguable that Smith

was prejudiced by counsel’s failure to raise the claim where this court may have reversed or

modified his sentence based on an assessment of the law and mitigating evidence. Therefore, we

find the petition states the gist of a constitutional claim necessary to advance to the second stage

of postconviction proceedings.

¶ 39                                     IV. CONCLUSION

¶ 40    We find Smith’s postconviction petition states the gist of a constitutional claim that

appellate counsel was ineffective for failing to argue on appeal that Smith’s concurrent sentence

of 50 years was excessive. Thus, we hold the postconviction court erred in summarily dismissing


        3
          Smith was convicted of the offenses of home invasion, aggravated kidnapping, aggravated
battery with a firearm, all of which are classified as Class X felonies. A Class X felony carries a
sentencing range of 6 to 30 years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2016). Smith was
sentenced to the maximum prison term of 30 years plus a 20-year sentencing enhancement for home
invasion, totaling 50 years; 30 years plus a 15-year sentencing enhancement for aggravated kidnapping,
totaling 45 years; and 30 years for aggravated battery with a firearm.

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the petition at the first stage of postconviction proceedings. Accordingly, we reverse the

postconviction court’s judgment and remand for second stage postconviction proceedings.

¶ 41   Reversed and remanded.




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No. 1-22-1496



                         People v. Smith, 

Decision Under Review:       Appeal from the Circuit Court of Cook County, Nos. 10-CR-21516
                             & 12-CR-5787; the Hon. Alfredo Maldonado, Judge, presiding.


Attorneys                    James E. Chadd, Douglas R. Hoff, and Gilbert C. Lenz, of State
for                          Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                    Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for                          Abraham, Brian A. Levitsky, and Lisanne P. Pugliese, Assistant
Appellee:                    State’s Attorneys, of counsel), for the People.




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