(Editor's note: This article has been edited to clarify that the appellate court reversed and remanded the case for a trial court judge to consider whether an evidentiary hearing should be held on the motion of defendant Boyd, filed under the post-conviction hearing act).
MOUNT VERNON – Former Twentieth Circuit chief judge John Baricevic should have taken seriously a prisoner’s claim of ineffective assistance at trial, Fifth District appellate judges decided on Sept. 26.
Justice Judy Cates wrote that Dorian Boyd, serving 40 years for murder, set forth the gist of a constitutional claim for a new trial.
The appellate court reversed and remanded for a trial court judge to consider whether an evidentiary hearing should be held on the motion Boyd filed under, the post-conviction hearing act. It found evidence for Boyd’s allegation that lawyer Paul Storment failed to interview three witnesses who could have testified for him.
“It is arguable that trial counsel’s failure to investigate the potential witnesses fell below an objective standard of reasonable and that the alleged deficiency prejudiced the defense,” Cates wrote.
Justices Richard Goldenhersh and David Overstreet concurred.
At trial in 2011, St. Clair County jurors convicted Boyd of murdering Dion Hardin outside a nightclub in Brooklyn.
Circuit Judge Vincent Lopinot imposed a sentence of 40 years.
Boyd appealed, with the appellate defender’s office representing him.
In 2014, Fifth District judges affirmed the conviction and the sentence.
In June 2015, Gilbert Sison of Scott Rosenblum’s firm in Clayton, Mo., petitioned for relief in circuit court.
He claimed Storment should have interviewed Deontri Wiley, Andre Murray, and Travon Wiley, who were outside the club.
He attached police reports of interviews with Wiley, Murray, and Wiley.
He alleged other kinds of ineffective assistance at trial.
Baricevic, who had not presided at trial, assigned the petition to himself.
He denied it 11 days after Sison filed it.
“The allegations are simply unsupported conclusions,” Baricevic wrote.
“The defense attorney presented a reasonable defense, challenged evidence, cross examined witnesses and argued the case to the jury in a consistent pattern asserting innocence and lack of proof beyond a reasonable doubt.
“The claims made are frivolous, without merit and do not rise to the gist of a constitutional claim.”
Boyd appealed, with Nathan Swanson of Rosenblum’s firm representing him.
Boyd waited three years, and he won.
Cates wrote that Wiley, Murray, and Wiley gave statements to police that they did not see Boyd with a gun.
“At trial, defendant’s defense was that he was not armed during the incident and that the actual shooter was Justin Harper, who was present at the scene and was subsequently charged with unlawful use of the murder weapon,” Cates wrote.
She wrote that statements of the potential witnesses to police were consistent with the defense theory, that police reports demonstrated that Boyd’s allegations were capable of corroboration. and that the reports identified the sources, character and availability of evidence supporting Boyd’s allegations.
By reversing Baricevic over testimony of Wiley, Murray, and Wiley, the appellate judges did not have to deal with Boyd’s other claims of ineffective counsel.
The case returned to St. Clair County on Sept. 27, and Chief Judge Andrew Gleeson assigned it to associate judge Julie Katz.
Katz held a hearing on Sept. 28, and gave state’s attorney Brendan Kelly 28 days to answer Boyd’s petition or move to dismiss it.
She set a status conference Nov. 20.