Appellate Court reverses order denying post-conviction petition because pro se petitioner was shackled during second-stage proceedings

The appellant in People v. Hawkins, 2019 IL App (3d) 160682, appealed the trial court’s order dismissing his pro se post-conviction petition at the second stage on the grounds that the court erred by ordering that he be shackled without stating the reasons for doing so and that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). The Appellate Court of Illinois Third District ultimately vacated the circuit court’s order and remanded for new second-stage proceedings, beginning with the appointment of new post-conviction counsel.

Anthony Hawkins was convicted of first-degree murder and aggravated unlawful use of a weapon (AUUW) and sentenced to terms of 45 years’ and 2 years’ imprisonment, respectively. Id. at ¶ 4. On direct appeal, both convictions and sentences were affirmed. Shortly thereafter, Hawkins filed a pro se post-conviction petition alleging that appellate counsel had been ineffective for failing to argue on direct appeal that the circuit court had erred by denying his motion to suppress. Hawkins also asserted that his conviction for AUUW was unconstitutional. Id. at ¶ 5.

The court appointed post-conviction counsel and advanced the petition to the second stage of postconviction proceedings. Counsel filed a petition for relief from judgment, alleging the AUUW conviction should be vacated under People v. Aguilar, 2013 IL 112116. Id. at ¶ 6. The court granted the petition and vacated the conviction. Following a conclusion that no nonfrivolous arguments remained to be made on appellant’s behalf, counsel filed a motion to withdraw. The circuit court found that counsel had complied with the requirements of Rule 651(c) and granted the motion. Id. at ¶ 7.

The State then subsequently filed a motion to dismiss the postconviction petition. Hawkins filed a response, pro se, and, at the hearing, repeatedly requested that he be unshackled so that he could maneuver through his notes and other paperwork. The court refused all requests and said, at one point, “I’m not removing them… do the best you can do.” Id. at ¶ 8. The record did not provide any rationale for keeping Hawkins shackled nor did it contain any notation of the factors considered by the court in denying Hawkins’ requests to be unshackled. The court granted the State’s motion to dismiss. This appeal followed.

On appeal, Hawkins raised two arguments. First, he argued that the court’s decision to keep him shackled during the second-stage hearing, absent any articulated justification by the court on the record, requires a new second-stage hearing. Further, he argued that he was entitled to a new second-stage hearing due to post-conviction counsel’s failure to file a Rule 651(c) certificate before withdrawing from the case. Id. at ¶ 10.

The court acknowledged that it is “well accepted” that in-court shackling has the potential to restrict an individual’s ability to assist defense counsel, and a trial judge’s failure to articulate any basis for the shackling constitutes a violation of due process. Id. at ¶ 11. The court looked to People v. Rippatoe for similar instruction on pro se proceedings and found that the aforementioned requirements from Boose applied similarly to pro se cases.

The State acknowledged that the shackling documented in this record was “inappropriate” under the Boose standard. Id. at ¶ 12. The point of dispute between the two parties focused on the proper remedy for the Boose violation. The State argued that the court should remand the matter for a retrospective hearing to determine if shackling was proper, while Hawkins argued for the vacation of the order dismissing his post-conviction petition and remand for a new second-stage hearing. Id. at ¶ 13. The appellate court agreed with Hawkins that a retrospective hearing would be improper, and, due to the trial court’s silence on its precise rationale for shackling, vacated the order dismissing the post-conviction petition and remanded for new second stage proceedings. Id. at ¶ 15.

The appellate court then turned to the second issue raised on appeal: that post-conviction counsel had not filed a valid Rule 651(c) certificate before being allowed to withdraw from second stage proceedings. All parties agreed that no valid certificate was filed. The appellate court, similarly, instituted the same remedy for the first issue and remanded for new second stage proceedings. Id. at ¶ 16. The court provided instruction to the trial court to begin the second stage post-conviction proceedings anew with the re-appointment of post-conviction counsel, allowing counsel to review the entire record in compliance with Rule 651(c). Id. at ¶ 18.

The Third District vacated the judgement of the Circuit Court of Will County and remanded with new directions.

Appellate Court vacates petitioner’s 70-year sentence as being a de facto life sentence, even though his sentence was day-for-day eligible

The appellant in People v. Thornton, 2019 IL App (1st) 170677, appealed the trial court’s decision dismissing his pro se petition for  post-conviction relief on grounds that he stated an arguable claim that his 70-year sentence, for a crime he committed as a juvenile, is an unconstitutional de facto life sentence and remand is necessary as the circuit court failed to properly admonish him, pursuant to People v. Shellstrom, 216 Ill. 2d 45, before re-characterizing his petition. The First District ultimately vacated his sentence and remanded the matter for a new sentencing hearing.

Altai Thornton entered an open guilty plea to four counts of first degree murder and one count of aggravated kidnapping, in exchange for an agreed sentencing cap of 60 years’ imprisonment. Id. at ¶ 2. At the sentencing hearing, the State presented evidence in aggravation of the Thornton’s involvement in a subsequent shooting and a victim impact statement. Id. at ¶ 4. In allocution, Thornton apologized, accepted responsibility for his actions, and asked for mercy. The circuit court noted that Thorton was “starting down the wrong path at an early, early age,” merged the aggravated the kidnapping count into the first degree murder count based on felony kidnapping, and sentenced him to four concurrent extended terms of 70 years DOC.

On direct appeal, Thornton’s sentence was reduced to concurrent terms of 60 years DOC. Id. at ¶ 5-6. The Illinois Supreme Court then instructed the court to vacate its  order and reconsider its judgment in light of the decision in People v. Jackson, 199 Ill. 2d 286. On remand, Thornton argued that the circuit court erred by entering convictions and imposing sentences on four counts of first degree murder when there was only one victim  and that and his 70-year sentence violated Apprendi v. New Jersey, 530 US 466 (2000). Id. at ¶ 7.

Thornton then filed a pro se “Petition to Vacate Judgement”. In the petition, Thornton alleged that his indictment was void for failing to allege brutal and heinous conduct; his 70-year extended term sentence violated Apprendi; the extended-term sentencing statue, along with several others, were unconstitutional because they did not require the State to charge brutal and heinous conduct; the concurrent and consecutive sentencing statutes violated Apprendi and are void ab initio; and, both his trial and appellate counsel were ineffective.

In response, the State filed a motion to dismiss the petition. Id. at ¶ 8. Shortly thereafter, Thornton filed a pro se Motion to Recharacterize the Petition as a Post-Conviction Petition under the Act. The circuit court granted the motion. Id. at ¶ 9. Thornton then filed a motion for leave of court to file an amended post-conviction petition, in which he sought to add additional claims. Thornton, simultaneously, filed an amended post-conviction petition containing all of the claims raised initially, as well as two new allegations: 1) his extended term sentence violated his due process rights because it was based on facts not alleged in the indictment, and 2) his sentencing hearing violated the eighth amendment of the United States Constitution, pursuant to Miller v. Alabama, because the circuit court failed to properly consider his youth before determining his sentence. Id. at ¶ 10. The circuit court summarily dismissed the pro se petition as frivolous and patently without merit. Id. at ¶ 11. This appeal followed.

On appeal, Thornton argued that the circuit court erred in summarily dismissing his pro se petition because he raised an arguable claim that his 70-year sentence, imposed for a crime he committed while he was a juvenile, violated the eighth amendment. In the court’s de novo review of Thornton’s claims, the court held that, pursuant to rulings in Miller and People v. Buffer, 2019 IL 122327, a sentence exceeding 40 years was a de facto life sentence requiring the court to consider the defendant’s youth and attendant circumstances. Id. at ¶ 16.

Thornton had argued that he had pled an arguable claim in his petition, as the record reflected that the sentencing court did not take into consideration Thornton’s youthful characteristics. The State responded by arguing that Thornton would likely only be required to serve 35 years of his 70 year sentence (because of day-for-day credit), and thus the court should consider the sentence as such. Id. at ¶ 18. In response, appellant argued that his sentence was a de facto life sentence because: 1) there is no guarantee of day-for-day credit; and 2) even if he did receive such credit, it remains highly unlikely he will outlive his 35 year sentence, given the life expectancy of incarcerated black men. Id. at ¶ 19.

The court concluded that regardless of appellant’s eligibility for day-for-day credit, his extended term of 70 years’ imprisonment is a de facto life sentence that requires a sentencing court to consider his youth and attendant characteristics. Id. at ¶ 22. Further, the court concluded that the circuit court failed to consider such characteristics during the imposition of this sentence and thus, the sentence violates the eighth amendment. Id. at ¶ 22-26.

The sentence was vacated as unconstitutional and remanded for a new sentencing hearing.

Appellate Court holds that second-stage dismissal was proper where claim had already been litigated before trial

The appellant in People v. Johnson, 2019 IL App (1st) 162999, appealed the trial court’s order dismissing his petition for post-conviction relief at the second stage, where Johnson argued that his trial counsel and appellate counsel were ineffective. The  First District ultimately affirmed the decision of the circuit court, finding that the issues raised by Johnson had been litigated prior to trial and, thus, neither his trial counsel nor his appellate counsel could be ineffective for failing to raise it.

Michael Johnson was convicted of acting as a hit man for a drug dealer, Marc Norfleet, and killing a police informant, Adam Schultz. Id. at ¶ 8. Prior to trial, trial counsel filed a motion to suppress the Johnson’s statements, claiming that they were obtained after Johnson’s elected to remain silent and requested to consult with an attorney, in violation of his fifth and fourteenth amendment rights. Id. at ¶ 10. At the hearing on this motion, detectives testified that the entire time they were with Johnson he had never asked for an attorney, never indicated that he wanted to remain silent, and never refused to speak with them. Id. at ¶ 15, 21.

The ASA who participated in the interviewed statement testified that the interview was conducted to obtain an arrest warrant for Marc Norfleet based on an accountability theory, and that once Johnson was confronted with an article concerning Norfleet’s arrest, he then implicated himself. Id. at ¶ 17. Johnson then chose a videotaped statement to memorialize his statements. The ASA also testified to reviewing Johnson’s Miranda rights with him, “word for word,” after they’d been read to him by detectives. Id. at ¶ 19. Johnson disputed the testimony provided by the ASA and detectives, stating he was only advised of his Miranda rights by the ASA (not the detectives) and that his videotaped statement was involuntary. Id. at ¶ 33. Johnson did, however, testify that he read and signed a form stating he was consenting to the videotaping, did not complain of mistreatment by police, and did not ask for an attorney in the videotaped statement. Id. at ¶ 34.

In arguments on the motion, Johnson argued that his fear of the death penalty, as corroborated by both the ASA and the detectives, in addition to threats and promises regarding the death penalty, overbore his free will, rendering his statement involuntary. Id. at ¶ 35. The State rebutted each claim in the motion individually. The trial court denied the suppression motion based on the credibility of the witnesses. Id. at ¶ 36.

Despite raising numerous claims in his initial pro se post-conviction petition and supplemental petition filed by counsel, appellant raises only one claim on direct appeal: that counsel failed to “clearly articulate” an Edwards claim. The petition stated that Edwards requires that once a suspect invokes his fifth amendment right to counsel, all custodial interrogation must cease, and it may resume only if counsel has been made available to the defendant or the defendant initiates communication. Id. at ¶ 38. The trial court dismissed the petition, finding that trial counsel conducted a full suppression hearing during which he ably advocated on behalf of his client by arguing vehemently that he was coerced, not informed of his Miranda rights, and interrogated after electing to remain silent. Id. at ¶ 39. This appeal followed.

On appeal, Johnson argued that the trial court erred by dismissing his petition at the second stage of proceedings. The court’s review of the trial court’s dismissal of the petition was conducted de novo.

Johnson raised two ineffective assistance of counsel claims, relating to both trial and appellate counsel’s performance. To determine the effectiveness of counsel’s assistance, the court used the Strickland test, which requires that a defendant prove both (1) that his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness and (2) that, absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id. at ¶ 53. This standard applies equally to both claims. The court observed that an ineffective assistance of counsel claim can be disposed of if a petitioner cannot satisfy both prongs of the Strickland test. Id. at ¶ 56.

To establish the first prong, appellant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial sound strategy. Id. at ¶ 58. On the Edwards issue, the court noted that the trial court had previously adjudicated the matter and decided the issue, based on the credibility of the witnesses, in the State’s favor. Id. at ¶ 64. Further, the appellate court held that failing to specifically cite Edwards in the pretrial motion is not dispositive, particularly because counsel had made sure to address the claim in suppression testimony. Counsel’s decision not to respond to a very specific case cited by the State is considered a matter of trial strategy, immune to an ineffectiveness claim. Ultimately, the court concluded that “we cannot find trial counsel ineffective for failing to raise a claim that was, in fact, raised, and we cannot find appellate counsel ineffective for the same reason.” Id. at ¶ 65.

The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

Second District holds that “Reasonableness” standard governs post-conviction counsel’s performance at third stage

The appellant in People v. Pabello, 2019 IL App (2d) 170867, appealed the trial court’s order deny his post-conviction petition following a third-stage hearing. The Second District ultimately affirmed the judgment of the circuit court, finding that post-conviction counsel provided reasonable assistance.

Pabello was convicted of two counts of predatory criminal sexual assault of a child in Lake County. Id. at ¶ 3. On appeal, this court affirmed. Pabello then filed a pro se post-conviction petition, which advanced to the second stage of proceedings, resulting in the appointment of post-conviction counsel. Counsel amended the petition pursuant to Illinois Supreme Court Rule 651(c) and filed a supplemental petition, alleging that trial counsel was ineffective for failing to file a motion to suppress Pabello’s statements to the police. Id. at ¶ 4-6. Counsel asserted that Pabello’s Miranda waiver was invalid because he did not understand English and lacked relevant education (having only attended school through 6th grade). The State agreed to proceed to a third-stage hearing.

During the third stage of proceedings, the State established that Pabello was able to learn “a little bit of English” while working at a gas station. Despite the presence of an interpreter, trial counsel testified that the interpreter was rarely, if ever, used. The trial court concluded that despite his lack of education, there was no language barrier and the “totality of the circumstances demonstrated that [Pabello] knowingly and intelligently waived his Miranda rights.” As such, the court found appellant had failed to demonstrate ineffective assistance of trial counsel for failing to file a motion to suppress. Id. at ¶ 12-16. This appeal followed.

On appeal, Pabello argued that post-conviction counsel failed to comply with Rule 651(c) by failing to present sufficient evidence that his waiver of his Miranda rights was invalid in light of his limited education. Id. at ¶ 18. Under Rule 651(c), postconviction counsel has three duties: 1) show the he consulted with the petitioner to ascertain his contentions of constitutional violations, 2) show that he examined the trial record, and 3) show that he made any amendments to the pro se petition necessary to adequately present the petitioner’s claims. Id. at ¶ 23.

Compliance with Rule 651(c) can be demonstrated via a filed certificate or the trial record. However, the court ruled that Rule 651(c) does not govern counsel’s performance at the third stage of proceedings. Id. at ¶ 26. The court explained further that “it is undisputed that counsel here complied with Rule 651(c) at the second stage when he consulted with [Pabello], examined the trial record, and amended the pro se petition as necessary to adequately present defendant’s claims.” Id. at ¶ 28. The court found all cases cited by Pabello suggesting the rule’s application to third-stage proceedings to be unhelpful to Pabello and distinguishable from his case. Id. at ¶ 30-34.

As such, the court evaluated counsel’s performance using the overarching reasonableness standard generally applicable to post-conviction proceedings. Id. at ¶ 35. The court relied upon People v. Hotwagner, 2015 IL App (5th) 130525, for instruction, and held that because trial counsel and post-conviction counsel serve different roles, the reasonable level of assistance required under the Act is not co-extensive with the level of assistance required under Strickland v. Washington. However, the court held that the Strickland test is an essential standard for comparison, and if “postconviction counsel’s assistance cannot be deemed ineffective under Strickland, it cannot be deemed unreasonable under the Act.” Id. at ¶ 36. Thus, the court reviewed counsel’s performance under the Strickland standard and determined that if it passes the Strickland standard, it would meet the lesser standard under Hotwanger. Id. at ¶ 37.

Under Strickland, to establish prejudice for counsel’s failure to file a motion to suppress, appellant must demonstrate a reasonable probability that (1) the motion would have been granted and (2) the outcome of the trial would have been different had the evidence been suppressed. Id. at ¶ 38. The court summarily rejected all arguments related to appellant’s lack of education and understanding of English, arguing that the record (including the interrogation video) left “no doubt that defendant understood, and knowingly and intelligently waived, his Miranda rights.” Id. at ¶ 43. As such, the court held that even had counsel argued those factors more emphatically, it would not likely have resulted in a finding that appellant did not knowingly and intelligently waived his Miranda rights. Thus, any failure by post-conviction counsel in that regard did not prejudice Pabello. Accordingly, counsel’s performance was reasonable. Id. at ¶ 44.

For those reasons, the Appellate Court of Illinois Second District affirmed the judgement of the Circuit Court of Lake County.

 

 

Appellate Court holds that trial court can dismiss petition on standing grounds at first stage

The appellant in People v. Johnson, 2019 IL App (1st) 163169 appealed the trial court’s order dismissing his pro se petition for post-conviction relief on standing grounds. The First District affirmed the decision of the trial court.

Recardo Johnson pled guilty to unlawful restraint in exchange for a sentence of two years’ imprisonment. Upon entering his plea, Johnson stated that he understood he was giving up certain rights by pleading guilty, including his right to plead not guilty and have a jury trial. Johnson confirmed that he was not threatened or promised anything in exchange for his plea. Id. at ¶ 4.

Johnson, pro se, moved to file a late postconviction petition, arguing that the age of the victim in his case was never stated in court, the court never informed him that he would need to register under the Child Murderer and Violent Offender Against Youth Registration Act, and that his plea counsel was ineffective for failing to tell him he would need to register under the Act. Id. at ¶ 6. The petition was summarily dismissed as he had not withdrawn his plea, appealed the conviction, and had already served the term of imprisonment and MSR to which he was sentenced.

The court noted that at the time of filing, Johnson was serving a two-year sentence for failing to register under the Act. Id. at ¶ 7. The circuit court concluded that the Act and its remedies are not available to petitioners who have completed their sentences and merely seeking to purge their criminal records, rendering the petition frivolous and patently without merit. This appeal followed.

On appeal, Johnson argued that the circuit court erred in dismissing the petition at the first stage on the basis of standing. The court noted this argument gave rise to two separate questions: (1) whether standing is ever an appropriate consideration at the first stage of postconviction proceedings and, if so, (2) whether, in this case, appellant’s argument that he has standing is frivolous or patently without merit. Id. at ¶ 11.

Johnson argued that standing is never an appropriate basis for dismissal at the first stage of proceedings, however, the court agreed with the State that the circuit court properly dismissed the petition based on standing because “if it is clear a defendant lacks standing, his petition is necessarily frivolous and patently without merit.” Id. at ¶ 12. The court reasoned that, in accordance with previous rulings, standing related to the “substantive virtue” of a post-conviction claim and therefore may be an appropriate consideration for first stage of post-conviction proceedings. Id. at ¶ 19.

Because the court found the trial court’s consideration of appellant’s standing proper, it considered appellant’s standing argument frivolous and patently without merit. Id. at ¶ 23. As a post-conviction petition should be summarily dismissed if it is found to be frivolous or patently without merit, the court found that the trial court had properly dismissed appellant’s petition. Id. at ¶ 29.

 

First District holds that adult cannot rely on Miller or Proportionate Penalties Clause to argue de facto life sentence

The appellant in People v. Handy, 2019 IL App (1st) 170213 appealed the trial court’s decision denying him leave to file a successive post-conviction petition, arguing that he met the cause-and-prejudice test. The First District ultimately affirmed the decision of the circuit court.

Dante Handy was convicted of armed robbery, home invasion, residential burglary, aggravated battery of a senior citizen, kidnapping, aggravated criminal sexual assault, and possession of a stolen motor vehicle, for which he was sentenced to  four consecutive 30-year prison terms. Handy was 18 ½ years old when he committed the crimes. As a result of violations of the single subject rule under the sentencing code, the sentence was converted to a 60-year term of imprisonment, with eligibility for mandatory supervised release at 78 ½ years. Id. at ¶ 1-4.

At trial, Handy testified that he did not ever sexually assault the victim, did not know the co-defendants had planned a robbery, did not intend to kidnap anyone, did not have a gun, and someone other than Handy held a gun to the homeowner’s head. Id. at ¶ 13. Handy testified that he fled from the co-defendants and was warned to keep his mouth closed. Handy further testified that after being arrested, the detective who questioned him threatened him, shoved him back against the mirror in the interrogation room, and pulled his braids. Handy’s testimony conflicted with all evidence and previous testimony.

At sentencing, the victims spoke in aggravation and the State argued that the defendants lacked any rehabilitative potential and had slept, laughed or joked during the court proceedings as if the matter was no big deal. Id. at ¶17. Counsel argued that Handy was less culpable than the co-defendants because of his expressed reluctance, limited participation in the sexual assault, and stated intention to kill himself. Id. at ¶ 18.

On direct appeal, Handy argued that his sentence was excessive because the court was unduly influenced by the media attention and failed to consider his rehabilitative potential based on his individual circumstances, which included the absence of an extensive criminal record, beatings from gang members and expressed remorse. Id. at ¶ 20. The sentence was ultimately converted due to a violation of the single subject rule.

In his initial post-conviction petition, Handy argued that appellate counsel failed to argue that his sentence was disproportionate and excessive in light of his young age, lack of criminal history, and rehabilitative potential. Id. at ¶ 21. The appellate court affirmed. Eight years later, Handy moved the circuit court for leave to file a successive post-conviction petition, which argued that he was deprived of due process because the truth-in-sentencing law under which his sentence was imposed was an unconstitutional statutory scheme. The motion was denied. Id. at ¶ 22.

Five years following that decision, Handy moved the circuit court to file the successive post-conviction petition at issue in this appeal. Handy’s pro se petition argued that his 60-year prison sentence was unconstitutional as applied to him under the Eighth Amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 23. Handy argued the sentence was a de facto life sentence without the possibility of parole and that the trial court failed to consider the special circumstances of his youth.

As to the “cause and prejudice test” to obtain leave to file his petition, he argued that (1) the law concerning the imposition of lengthy sentences on juveniles changed substantially after his 2003 post-conviction petition as a result of the recent decisions of Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), and People v. Davis, 2014 IL 115595, and (2) there was a reasonable probability that he would have received a shorter sentence if the trial court had correctly understood and applied the Eighth Amendment of the United States Constitution at his sentencing hearing. Id. at ¶ 23. The court denied leave to file a successive petition. This appeal followed.

The denial of Handy’s motion to file for leave to file a successive post-conviction petition was reviewed de novo. The court noted that to meet the cause-and-prejudice requirements “a defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice.” Id. at ¶ 28. Further, the court noted, leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings. Id. at ¶ 30.

As to cause-and-prejudice, Handy argued that he made the requisite showings because (1) the new constitutional rule of Miller applies retroactively to his sentence, and (2) a de facto life sentence for a youth in any case other than homicide is categorically barred under Graham. Id. at ¶ 31. Handy acknowledged that at the time of the offense, at 18 ½ years old, he was not technically a juvenile, but he nevertheless argued that Eighth Amendment protections afforded to juveniles under Miller should be extended to him. Id. at ¶ 37.

The Illinois Supreme Court drew a line at the age of 18, meaning that Miller protections do not extend to anyone who was 18 years old or older at the time of offense. Thus, the Handy’s Eighth Amendment challenge was meritless. Id. at ¶ 37. The court also refused to extend Miller principles under the proportionate penalties’ clause to appellant, as the special circumstances that had authorized such an extension in House were not present in this matter. Id. at ¶ 30.

Ultimately, while the court “recognize[d] that [appellant] is serving a harsh sentence” it concluded that he had not shown prejudice and that the trial court properly denied him leave to file his successive post-conviction petition. Id. at ¶ 42. The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

 

 

 

 

 

Counsel did not provide unreasonable assistance of counsel where claims were meritless

The appellant in People v. Gallano, 2019 IL App (1st) 160570 appealed the trial court’s decision dismissing his post-conviction petition on the grounds that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c) by failing to amend the petition to include notarized affidavits from two potential witnesses. The Appellate Court of Illinois First District ultimately affirmed the judgment of the circuit court.

Gallano was found guilty at a jury trial of first-degree murder and concealment of homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. Id. at ¶ 5. The initial conviction and sentence were reversed and remanded for a new trial based on an error that occurred during jury deliberations. However, on remand, the second jury found Gallano guilty on the same offenses and the trial court imposed the same sentences. That conviction was affirmed by the appellate court. Id. at ¶ 5. Gallano unsuccessfully filed a pro se petition to vacate, which was affirmed on appeal. Gallano then filed a pro se petition for post-conviction relief, which is at issue here.

Gallano argued that the trial court in the second trial erred when it allowed a witness named Pratt to invoke his Fifth Amendment right against self-incrimination. Id. at ¶ 11. Gallano sought to introduce statements from the witness regarding jail conversations with another individual, Moretti, who Gallano alleged admitted to lying to police and had expectations of immunity in exchange for testimony against Gallano. Id. at ¶ 11. The court did not address the issue of proper invocation of Fifth Amendment rights, as the court found instead that the potential testimony would have been inadmissible hearsay at trial and would not have fallen within a recognized exception. Id. at ¶ 12. The court noted that the statement could not corroborate defendant’s self-defense theory, either.

Appellant’s pro se petition for post-conviction relief at issue in this appeal contained two contentions, XI and XII (of the 28 total), relevant to the court’s evaluation. Contention XI was that Gallano did not receive a fair trial “due to excluded evidence of a third party’s guilt.”  Id. at ¶ 16. In support, Gallano restated arguments regarding the admission of testimony from Pratt, contending that the testimony fell under an exception to the hearsay rule and corroborated his self-defense claim.

Contention XII asserted that Gallano was denied his right to a fair trial “when the State intimidated a crucial defense witness to keep him from testifying.” Id. at ¶ 17. Gallano cited an unnotarized affidavit by Moretti corroborating Gallano’s self-defense argument. Galloano argued that the State intentionally persuaded Moretti not to testify by informing the court that the State could charge him with murder. Id. at ¶ 17.

A public defender was appointed to represent Gallano. After multiple continuances, counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c), stating that she had consulted with Gallano and had not amended the post-conviction petition, as it “adequately sets forth the petitioner’s claims of deprivation of his constitutional rights.” Id. at ¶ 18. Shortly thereafter, the State filed a motion to dismiss, raising numerous defenses, including that claims XI and XII were res judicata, as they had been addressed in previous decisions; Moretti’s affidavit did not show that the State intimidated him; and the circuit court could not consider Moretti’s affidavit because it had not been notarized. Id. at ¶ 19. The motion was granted. This appeal followed.

On appeal, Gallano contended that he was denied the reasonable assistance of appointed post-conviction counsel and that his petition should be remanded for further second-stage proceedings with the assistance of new post-conviction counsel. Specifically, Gallano cited counsel’s failure to amend his petition to include notarized affidavits under Rule 651(c). Id. at ¶ 21. The second stage dismissal of appellant’s petition was reviewed de novo.

The court noted that under Rule 651(c), which entitles a petitioner to “reasonable assistance of counsel,” either the record or a certificate filed by counsel must show that counsel (1) consulted with the petitioner to ascertain his contentions of constitutional deprivation, (2) examined the record fo the trial proceedings, and (3) made any amendments to the filed pro se petitions “necessary for an adequate presentation” of the petitioner’s contentions. Of special note, the court acknowledged that “encompassed in the third duty is the duty to remedy procedural defects in a petition, which includes a requirement to remedy an invalid affidavit.” Id. at ¶ 25. Further, the court stated that the filing of a Rule 651(c) certificate by postconviction counsel averring that counsel has complied with the three requirements of Rule 651(c) creates a presumption of compliance with the rule. As such, the burden to overcome the presumption and to demonstrate counsel’s failure to substantially comply with the duties mandated by the rule falls upon the appellant. Id. at ¶ 26.

Gallano contended that he rebutted the presumption established by counsel’s certificate by showing that counsel failed to make two necessary amendments to the petition, under the third duty of Rule 651(c), by failing to properly execute the unnotarized affidavits. Id. at ¶ 28. Rather than arguing that his claims regarding the affidavits had substantive merit, Gallano argued that remand was necessary, regardless of whether the claims had merit, because of counsel’s alleged failure to comply with Rule 651(c). Id. at ¶ 29.

However, because counsel did not fail to file a certificate in this instance, counsel created a rebuttable presumption that she complied with the requirements of the rule. Further, the court noted that the Illinois Supreme Court explained in People v. Greer, 212 Ill. 2d 192, 205 (2004) that the third duty outlined in Rule 651(c) does not require post-conviction counsel to amend a petition to advance a frivolous or spurious claim on a defendant’s behalf. Id. at ¶ 30. Thus, the question of whether the claims had merit was considered “crucial to determining whether counsel acted unreasonably.”

The court found that neither claim presented by Gellano had merit, finding the first issue had already been rejected on its merits and the second claim had been forfeited because it could have been raised earlier and was unsupported by the record. Id. at ¶ 31-34. Ultimately, because the allegations raised by appellant were considered without merit, the court held that counsel did not provide unreasonable assistance when she did not amend the meritless allegation with a notarized affidavit. The court concluded that appellant had not rebutted the presumption of reasonable assistance created by the filing of a Rule 651(c) certificate and and affirmed the judgment of the Circuit Court of Cook County. Id. at ¶ 36.

This case is significant because prior to Gallano, the rule was that the case would get remanded for 651(c) compliance, regardless of the merits of claim. In other words, prejudice was presumed. The court seems to be walking that rule back in this case, which I think makes sense from a judicial economy perspective.