Petitioner must specifically claim that appellate counsel was ineffective

The petitioner in People v. Stockton, 2018 IL App (2d) 160353 pleaded guilty to murder and was sentenced to 50 years in prison. She then filed a post-conviction petition, alleging that her Sixth Amendment rights were violated because the trial court considered improper evidence at her sentencing hearing. The petition was summarily dismissed.

On appeal, Stockton argued that the claims raised in her petition should be construed as claims of ineffective assistance of appellate counsel relating to her appellate attorney’s failure to raise on appeal the trial court’s consideration of improper evidence at sentencing. Stockton argued that the invocation of her Sixth Amendment rights “placed her claim under the umbrella of the Sixth Amendment.” Id. at ¶ 12.

The appellate court disagreed, noting that the Sixth Amendment only guarantees the right to trial counsel. It is the Fourteenth Amendment that guarantees the right to appellate counsel. Therefore, she could not argue on appeal that the claims raised in her petition should be construed as ineffective assistance of appellate counsel claims, where she did not specifically allege that and where the Sixth Amendment does not cover the effective assistance of appellate counsel.

Because Stockton could not construe her claims as ineffective assistance of appellate counsel claims in the trial court, she forfeited this argument for appeal. Having made no other argument, the appellate court affirmed the dismissal of Stockton’s petition.

This case underscores the importance of properly pleading the petition. Stockton filed this petition pro se, but if she had had the assistance of an attorney, this attorney would have likely been able to shape these claims into their appropriate forms, such that they would be more likely to survive summary dismissal and be properly preserved for appeal.

Defendant on sex offender registry does not have standing to file a post-conviction petition

The First District grappled with two related issues in People v. Begay, 2018 IL App (1st) 150466 that were ultimately resolved against the defendant-petitioner. The petitioner, with the assistance of an attorney, filed a post-conviction petition. There are three stages to a post-conviction proceeding. The first stage involves the court reviewing the petition to determine whether it contains a “gist” of a constitutional claim. If the court makes this determination, then the court advances the petition to the second stage, where the State has an opportunity to file an answer or a motion to dismiss. If the petition survives this stage, then the petition proceeds to the third and final stage, which is an evidentiary hearing on the claims alleged in the petition.

Under the Act, the court has 90 days to determine whether the petition contains a gist of a constitutional claim. If the court does not make a determination on that issue within 90 days, then the petition automatically advances to the second stage, regardless of the substantive merits of the petition. In this case, the court determined that the petition should be dismissed at the first stage because the petitioner did not have standing to file a petition under the Act. However, the court made this determination after the 90-day review period had expired. Begay argued on appeal that the case should have automatically advanced  to the second stage because the court dismissed the petition after the 90-day review period had expired. However, the appellate court disagreed.

As stated in Begay, 2018 IL App (1st) 150466, ¶ 43:

The Act provides that “[a] proceeding shall be commenced by filing with the clerk of the court” a petition. 725 ILCS 5/122-1(b) (West 2016). “Petitioner shall also serve another copy upon the State’s Attorney ***.” 725 ILCS 5/122-1(b) (West 2016). “The clerk shall docket the petition for consideration by the court *** upon his or her receipt thereof and bring the same promptly to the attention of the court.” 725 ILCS 5/122-1(b) (West 2016). “Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Emphases added.) 725 ILCS 5/122-2.1(a) (West 2016). “If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration ***.” 725 ILCS 5/122-2.1(b) (West 2016). 

The question then became “whether the 90-day period is counted from the filing or the docketing of the petition.” ¶ 44. If it was counted from the filing of the petition, then Begay would win because the trial court dismissed the petition well beyond 90 days from when the petition was filed. However, the Begay court held that the 90 days begins to run when the petition is docketed, not merely when it is filed. A petition is considered “docketed” “when the clerk of the court entered the petition into the case file and set it for a hearing.” Id. at ¶ 46. In this case, the court dismissed the case within 90 days of the clerk entering the petition into the case file and setting it for hearing. Therefore, the petition should not have automatically advanced to the second stage.

The Begay court also reviewed the trial court’s ruling that a petitioner whose sentence has expired but who is still on the sex offender registry lacks standing under the Act. This is the more interesting legal issue here, but the First District did not analyze it in great detail because it recently held in People v. Jones, 2018 IL App (1st) 151307 that being a sex offender does not confer standing on a post-conviction petitioner. However, the court acknowledged the recently decided case of People v. Tetter, 2018 IL App (3d) 150243, where the Third District held that registering as a sex offender constituted punishment, which could very soon lead to a district-split on the issue of whether a sex offender has standing to file a petition under the Act. I expect this issue to reach the Illinois Supreme Court in the next couple years as this split deepens.

Remand necessary when State offers input on motion for leave to file successive petition

The petitioner in People v. Baller, 2018 IL App (3d) 160165 filed a pro se motion for leave to file successive post-conviction petition. When a petitioner is filing a second or subsequent post-conviction petition, he must be granted permission, or leave, from the trial court in order to do so. In order to be granted leave to file a successive petition, the petitioner must allege actual innocence or satisfy the “cause and prejudice” test set forth in the Act. The “cause and prejudice” test is essentially an explanation why the petitioner did not bring the claim in his previously filed petition.

Under the Act, the trial court is to consider the motion for leave without input from the State. Here, the State filed a written objection to Baller’s motion for leave prior to the trial court deciding it. The court, referencing the State’s written objection, denied Baller’s motion for leave. Baller appealed.

The State conceded on appeal that it was error for the trial court to have considered the State’s input before ruling on the motion. However, it argued that remand was unnecessary because Baller did not sufficiently set forth in his motion for leave why his claim satisfied the cause and prejudice test.

Generally, the appellate court can affirm a lower court’s decision for any reason apparent in the record. In other words, the appellate court can come up with its own reason that the motion for leave should have been dismissed, even if it was not the same reason that the trial court used. The State argued on appeal that remand was unnecessary because Baller did not meet the cause and prejudice as matter of law, even if the court had considered the State’s input. Therefore, the argument went, because the motion was deficient, the appellate court could affirm the trial court’s denial of the motion because it would have been a reason apparent from the record.

However, the majority held that “the procedural posture of the instant case creates an exception to the general principle that an appellate court may affirm on any basis found in the record.” Id. at ¶ 16. The majority determined that “The only way to honor these holdings [that motions for leave must be decided without input from the State] is to reset the scales of justice and remand the matter to the trial court for an independent evaluation of defendant’s motion by expressly ignoring the State’s input as expressed both in this court and the trial court.” Id 

Trial court improperly dismissed 2-1401 petition by not giving defendant time to respond

In People v. Rucker, 2018 IL App (2d) 150855, the defendant filed a pro se petition for relief from judgment (known as a 2-1401 petition). The State filed a motion to dismiss. Fourteen days later, the court granted the State’s motion to dismiss without the defendant being present. The defendant filed a pro se motion to reconsider, which was denied also without him being present. Rucker appealed.

The Second District reversed and remanded the trial court’s order granting the State’s motion to dismiss on grounds that Rucker was denied due process when the trial court granted the State’s motion to dismiss without giving Rucker an opportunity to respond to the State’s motion. The Rucker court reasoned that “Defendant was deprived of the opportunity to respond to the State’s motion before the trial court initially ruled on it. Further, when defendant had the opportunity to respond via his motion to reconsider, he had the burden of persuasion, whereas, if he had been given the opportunity to respond before the court’s initial ruling, the burden would have been on the State to establish a basis for dismissal.” Id. at ¶ 29. The trial court’s order was then vacated and remanded.

Post-conviction counsel’s motion to withdraw was insufficient when it didn’t address all claims in pro se petition

The Second District determined in People v. Moore, 2018 IL App (2d) 170120 (June 21, 2018) that post-conviction counsel’s motion to withdraw was improperly granted because it did not address all claims in the petitioner’s pro se petition. The defendant in Moore filed a pro se post-conviction petition that exceeded 500 pages. The trial court advanced the petition to the second stage, and post-conviction counsel was appointed.

Post-Conviction counsel is permitted to file a motion to withdraw pursuant to People v. Greer, 212 Ill. 2d 192 (Ill. 2004) if, after reviewing the pro se petition, post-conviction counsel determines that all claims contained in the pro se petition are frivolous. Post-conviction counsel is required to explain in his or her motion to withdraw why every claim in the pro se petition is frivolous.

Moore’s post-conviction counsel filed a Greer motion in this case, and the the court granted the motion after a brief hearing. The State then moved to dismiss the petition, and the State’s motion was granted.

Moore argued on appeal, among other things, that the Greer motion should not have been granted because the Greer motion did not address all claims in the petitioner’s 500-plus-page pro se petition. The appellate court agreed, indicating that post-conviction counsel does not execute his duties under Supreme Court Rule 651(c) when he to she fails to address all claims in the pro se petition in the Greer motion. The case was remanded for 651(c) compliance and the appointment of new counsel.

Court finds counsel ineffective for failing to appeal defendant’s sentence.

The defendant in People v. Cuevas, 2018 IL App (2d) 151100, decided on June 18, 2018, pled guilty to drug charges and was sentenced to prison. The defendant told his defense lawyer to appeal his sentence, but his defense lawyer failed to do so. The defendant filed a post-conviction petition, which was denied.

The issue in this case was whether the defendant’s lawyer provided ineffective assistance of counsel to him by failing to file an appeal of his client’s sentence. The appellate court held that he did.

The Cuevas court indicated that “when counsel has reason to know that a defendant is interested in securing relief from a conviction, counsel has a duty to consult with the defendant about pursuing an appeal…When the conviction arises from a guilty plea, that duty also necessarily entails a duty to consult about the necessary steps that must be taken in order to appeal, such as moving to withdraw the plea or to reconsider the sentence.” Id. at ¶ 26 (citations omitted).

In this case, the defendant “specifically asked his counsel to appeal the sentence and that counsel did not do so and did not consult with him about it. He further averred that family members attempted to reach his counsel about an appeal and were ignored. At the second stage, those allegations are taken as true. Thus, defendant made a substantial showing that his counsel’s performance fell below an objective standard of reasonableness.” Id. at ¶ 27. The court found that the defendant was prejudiced by his defense lawyer’s failure to appeal the defendant’s sentence, and reversed the trial court’s order denying the defendant’s post-conviction petition and remanded the case for  a third-stage evidentiary hearing.

Sealing cases when still owing fines might get easier with Ill. HB 5341

Legislation recently passed both chambers that would allow someone to file a sealing petition even if they owed fines on that case. Previously, that was not allowed. HB5341 states, in relevant part, that:

“Notwithstanding any other provision of law, the court shall not deny a petition for sealing under this Section because the petitioner has not satisfied an outstanding legal financial obligation established, imposed, or originated by a court, law enforcement agency, or a municipal, State, county, or other unit of local government, including, but not limited to, any cost, assessment, fine, or fee. An outstanding legal financial obligation does not include any court ordered restitution to a victim under Section 5-5-6 of the Unified Code of Corrections, unless the restitution has been converted to a civil judgment. Nothing in this subparagraph (C) waives, rescinds, or abrogates a legal financial obligation or otherwise eliminates or affects the right of the holder of any financial obligation to pursue collection under applicable federal, State, or local law.”

If this legislation becomes law, this will positively impact those who wish to have their cases sealed even when they still owe fines, fees, and/or costs on their case. To see the full text of the bill, click here.