Rule 651(c) only requires counsel to consult with client about initial petition, not subsequent pro se filings (People v. Bell, 2014 IL App (3d) 120637)

People v. Bell, 2014 IL App (3d) 120637 (August 21, 2014) Peoria Co. Affirmed. Defendant in this case filed a pro se petition for post conviction relief which advanced to second-stage proceedings. Post-conviction counsel was appointed and filed an amended petition accompanied by a Rule 651(c) certificate. Defendant then filed a series of six pro se amendments to his original pro se petition, introducing new claims not made in the original petition. The trial court struck defendant’s pro se amendments and subsequently dismissed the petition. Defendant appeals, arguing that appointed counsel did not comply with the requirements of Rule 651(c). Bell at ¶ 1.

Unlike at the trial court level and on appeal, defendant’s have no constitutional right to the effective assistance of counsel in connection with post-conviction petitions. The right to counsel, if the defendant’s pro se petition advances to second-stage proceedings, is statutory under the PCHA. Because the defendant is not constitutionally entitled to appointment of counsel under the PCHA, he also therefore has no Sixth Amendment constitutional right to the effective assistance of counsel under Strickland. Instead, The Act requires that counsel provide “a reasonable level of assistance” (distinguishable from effective assistance under Strickland) to petitioners in post-conviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42 (2007). Bell at ¶ 10.

Appointed counsel on appeal certifies that they have provided reasonable assistance to the petitioner by filing what is called a 651(c) certificate, which certifies that defense counsel has consulted with the petitioner to ascertain his or her contentions of deprivation of constitutional rights, has examined the trial court record and report of proceedings, and has “made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c).

In this case, appointed counsel filed his 651(c) certificate. However, the petitioner claimed that appointed counsel nonetheless failed to comply with 651(c) by not consulting with the defendant about his subsequent filings. The Bell court, however, disagreed, holding that the spirit, if not the letter, of 651(c) requires defense counsel only to consult with the petitioner about claims made in the original pro se petition which caused the case to advance to second-level proceedings, where counsel was appointed. Requiring defense counsel to consult with the petitioner about every subsequent filing that he made would be unduly burdensome to defense counsel, according to the Bell court.

I agree with the Bell court to the extent that it can be very difficult for appointed counsel to effectively represent a petitioner who insists on filing numerous pro se filings after the case has advanced to second-stage proceedings, for both strategic (controlling the record) and practical (keeping track of the additional filings) reasons, but I disagree with the court’s reasoning that “to agree with defendant’s interpretation of Rule 651(c) would be to impose upon public defenders the burden of consulting with postconviction petitioners each time the petitioner raised a new issue, whether through pro se amendments or letters to counsel. This responsibility would be limited only by the restraint of the incarcerated petitioner. In the present case, counsel would have been required to meet with defendant six separate times. Counsel could have held one consultation following the sixth pro se amendment, but nothing would prevent defendant from filing a seventh, eighth, and ninth amendment after that. Requiring that appointed counsel respond to every contact made by incarcerated petitioners would be inefficient at best and impossible at worst.” ¶ 16.

Counsel doesn’t need to “meet with the defendant” each time the defendant sends him a letter or files something. Counsel can still fulfill his duties under 651(c) by sending the defendant a letter or calling the defendant about the issue he wants to raise. See Ill. S. Ct. R. 651(c) (“the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights.”). It doesn’t take much effort to at least consult with the defendant by mail about the issue that he wants to raise. Defense counsel doesn’t have to raise the issue in the amended filing; but I think both defendant and defense counsel are better off if they at least discuss it by mail. The defendant is better off because he feels like he is being represented (reasonably, effectively, or otherwise) and participating in his own defense, and the defense lawyer is better off because his client trusts that his attorney is acting in his best interests. Furthermore, that conversation could lead to a meritorious issue being raised that was not raised in the additional petition. This would benefit all.

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