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.

We will be back soon….

IPCB will resume posting in the coming weeks after a several-month hiatus that was taken due to an increase in caseload over the summer. We will get readers all caught up on recent trends and develops in post-conviction law that occurred over the summer. More to come.

Counsel has no duty to advise on availability of good-time credit because it is collateral consequence of plea (People v. La Pointe, 2015 IL App (2d) 130451)

People v. La Pointe, 2015 IL App (2d) 130451 (March 27, 2015) Du Page Co. Affirmed. La Pointe was charged with first-degree murder (under two different theories) and armed robbery for allegedly robbing and killing a taxi cab driver in March of 1978. Defendant entered into a partially negotiated plea agreement only a few months later where he plead open to the first-degree murder charge only. There was no agreement as to sentence. The Court imposed a life sentence following the sentencing hearing, finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty under Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1), the sentencing scheme in place at the time. The defendant appealed.

The second district appellate court vacated the defendant’s life sentence and reduced his prison time to 60 years, having held that the trial court erred by finding that the defendant’s conduct was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, such that a life sentence was warranted under ¶ 1005-8-1(a)(1). However, the second district was reversed by the Illinois Supreme Court, which held that defendant’s life sentence was appropriate under ¶ 1005-8-1(a)(1) in light of the pre-meditated and deliberate nature of the crime and defendant’s callous and unremorseful behavior following it.

La Pointe then filed a post-conviction petition in 2002, claiming that trial counsel was ineffective for failing to inform him that he could receive good-time credit if he accepted the State’s 40-year offer; that trial counsel failed to explain to him the effect that ¶ 1005-8-1(a)(1) could have on his sentence; and that appellate counsel was ineffective for failing to bring up trial counsel’s failure to file post-judgment motions. The trial court dismissed the petition and the appellate court affirmed. La Pointe then filed a successive post-conviction arguing a variation of this theme. This, too, was denied and affirmed on appeal. The Illinois Supreme Court then vacated the second district’s judgment and granted leave for defendant to file a successive petition limited to “the issue of whether trial counsel was ineffective in failing to file a motion to withdraw defendant’s guilty plea” listed in letter written to counsel after sentencing. Defendant’s successive petition again argued a variation of his original claims—namely, that he was misadvised on good-time credit and the applicability of ¶ 1005-8-1(a)(1), and that counsel was ineffective for failing to file post-judgment motions. The defendant’s petition was denied at third-stage after a full evidentiary hearing. La Pointe appealed, which resulted in this decision.

La Pointe argued on appeal “that the trial court erred in denying his petition, because he proved that Simpson had rendered ineffective assistance in two respects: (1) failing to advise defendant that, if he accepted the State’s plea offer, he would be eligible for day-for-day good- conduct credit against the proposed 40-year sentence; and (2) erroneously advising defendant that the absence of any evidence that his offense was accompanied by exceptionally brutal or heinous conduct meant that he could not be sentenced to more than 40 years for first-degree murder.” ¶ 67.

The trial court disagreed with the defendant on both grounds. It held that because the award of day-for-day credit is not a “direct consequence” of the guilty plea (because it was something that would later be awarded by the Illinois DOC), trial counsel had no obligation to advise him that he would be eligible for day-for-day credit. Therefore, the “performance” prong of the Strickland test was not satisfied because counsel had no duty to advise on this issue. As to the second claim, the court found that defendant did not meet the “performance” prong of the Strickland because trial counsel was only offering his “opinion” that defendant’s offense conduct did not amount to “exceptionally brutal or heinous conduct” such that he would not be sentenced more than 40 years. “A defense attorney’s honest assessment of a defendant’s case cannot be the basis for a finding of ineffectiveness.” ¶ 87, citing People v. Wilson, 295 Ill. App. 3d 228, 237 (1998); People v. Bien, 277 Ill. App. 3d 744, 751 (1996).