Fourth District reverses conviction and sentence of petitioner where trial counsel and court failed to properly advise him of sentencing range (People v. Brown, 2014 IL App (4th) 120887)

People v. Brown, 2014 IL App (4th) 120887 (October 8, 2014) McLean Co. Reversed and remanded. Defendant shot and killed two people, firing 14 shots that resulted in 11 gunshot wounds. Defendant was charged with, inter alia, six counts of first-degree murder. He claimed self-defense. The defendant did not request a second-degree murder instruction at trial. Instead, he requested a self-defense instruction, which the court gave. The jury found defendant guilty on two counts of first-degree murder and an aggravated battery with a firearm charge relating to the shooting of another man. Defendant was acquitted of an aggravated battery count as it related to yet a fourth person. The defendant was sentenced to life in prison on the first-degree murder counts and a concurrent sentence of 30 years DOC on the aggravated battery count. The appellate court affirmed his conviction on direct appeal, and he was denied PLA.

The defendant then filed a pro se post-conviction petition, alleging ineffective assistance of counsel for his defense lawyer’s failure to advise him that if he was convicted on both fist-degree murder counts that he would be subject to a natural life sentence. The defendant claimed that had he known that he could be sentenced to natural life if convicted on both first-degree murder counts, he would not have agreed with counsel’s advice to forego the tendering of the second-degree murder instruction. The trial court dismissed the defendant’s pro se petition at the first stage, finding that the “decision to forego the second-degree-murder instruction was not objectively deficient based on the court’s admonishments and the fact defendant clearly preferred, as a matter of trial strategy, to give the jury only the options of guilty of first degree murder or acquittal of first degree murder on the grounds of self-defense. The court further found, even though counsel may have been incorrect in advising defendant of the maximum penalty he faced if found guilty of first degree murder of both victims, the record reflected at the arraignment the court had fully advised defendant of the potential penalties he faced, including natural life in prison.” ¶ 12. Defendant appealed. The Appellate Defender filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting no meritorious issues could be raised. The Appellate Court denied the motion.

The Brown court held that counsel was ineffective for failing to advise defendant on the appropriate sentencing range. Furthermore, the trial court never admonished the defendant that he could be subject to a natural life sentence if convicted on both first-degree murder charges. The Court noted that “Defendant had the right to decide whether to tender a second-degree-murder instruction, People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), but the defendant made the decision based on incorrect information he was given. The court further found that defendant was prejudiced by counsel’s errors because it was “arguable a reasonable probability exists the jury, if presented with a second-degree-murder instruction, would have convicted defendant of second degree murder instead of first degree murder.” ¶ 26. The Court held that defendant’s ineffective assistance claim based on the second-degree jury instruction issue satisfied the “gist” standard sufficiently to survive first-stage dismissal and remanded the case to the trial court for second-stage proceedings.

Court elevates substance over form during first-stage review of petitions (People v. McCoy, 2014 IL App (2d) 100424-B)

People v. McCoy, 2014 IL App (2d) 100424-B (September 29, 2014) Boone Co. Affirmed. Defendant was charged with, and plea guilty to, armed robbery in exchange for a 10-year DOC sentence pursuant to a fully negotiated plea agreement. Defendant later filed a “Motion for Reduction of Sentence” that was dismissed as untimely. Defendant then filed a pro se post-conviction petition under the PCHA wherein he alleged a laundry list of constitutional violations. Defendant filed a signed by un-notarized “verification” page and a signed and notarized affidavit along with his petition. The trial court summarily dismissed the petition as frivolous or patently without merit.

Defendant appealed, arguing that his petition stated a gist of a constitutional claim that his trial counsel had been ineffective. The dismissal of defendant’s petition was affirmed on appeal on technical grounds that it lacked proper verification. However, the Illinois Supreme Court remanded the matter for reconsideration following People v. Hommerson, 2014 IL 115638, which held that “the lack of a proper verification is not a permissible basis for a first-stage dismissal.” McCoy at ¶ 1. The McCoy court “originally agreed with the State that the absence of a proper verification was a sufficient basis to affirm the dismissal. However, now, based on the rule in Hommerson, we must reject that conclusion. Section 122-1(b) of the Act provides that “[t]he proceeding shall be commenced by filing *** a petition *** verified by affidavit.” 725 ILCS 5/122-1(b) (West 2010). This court has held that affidavits associated with petitions under the Act must be notarized to be valid. People v. Niezgoda, 337 Ill. App. 3d 593, 597 (2003). Defendant’s verification was not notarized. However, at the first stage, the trial court must “consider[] the petition’s ‘substantive virtue’ rather than its procedural compliance,” and proper verification is a matter of procedural compliance only. Hommerson, 2014 IL 115638, ¶¶ 7, 11. Lack of notarized verification is thus not a basis for a first-stage dismissal. Hommerson, 2014 IL 115638, ¶ 11. McCoy at ¶ 14. The court then turned to the merits of defendant’s garden variety ineffective assistance claims which the McCoy court held were meritless. The dismissal of defendant’s post-conviction petition was accordingly affirmed.

The takeaway message from McCoy really has nothing to do with the substantive issues that the defendant raised, as they were routine second-guessing of trial strategy that were unsupported by any facts provided by the defendant in connection with the petition. What is notable in this case is the application of Hommerson to what is a pretty typical post-conviction fact pattern. That is, pro se petitions must be adjudged at the first stage based on the “substantive virtue,” or lack thereof, of the defendant’s claims of error, instead of defendant’s procedural compliance with the very technical and confusing procedural requirements of the Act that cause even seasoned defense lawyers to shy away from this area of criminal law.

Not an Onion headline: Defense counsel cannot allege his own ineffectiveness (People v. Yaworski, 2014 IL App (2d) 130327)

People v. Yaworski, 2014 IL App (2d) 130327 (October 6, 2014) De Kalb Co. Vacated and remanded with directions. Defendant was convicted by a jury of DUI and DWLR. The trial court vacated the DWLR conviction and sentenced the defendant to 3.5 years DOC on the Class 2 DUI conviction. The appellate court affirmed the DUI conviction and sentence on appeal and reinstated the DWLR count. The defendant, while on MSR, filed a pro se post-conviction petition under the PCHA. The Dekalb County Public Defender’s office was appointed to represent the defendant in connection with his petition. Specifically, the same lawyer who represented the defendant at trial was assigned to represent the defendant in the post-conviction phase, where, among other claims, defendant advanced claims of ineffective assistance of trial counsel. Criminal practitioners need to read no further to see where this case is going.

The defendant’s petition alleged that he was deprived of the right to due process and the effective assistance of counsel where the court relied on prior DUI convictions in the defendant’s PSI that were allegedly not attributable to him. Though the Yaworski opinion doesn’t say, presumably the ineffective assistance claim was based on trial counsel’s failure to correct this error. The defendant’s trial counsel did not amend the defendant’s pro se petition, but did attach a mug shot to it as an exhibit. The court dismissed the petition at the second stage on res judicata grounds because the defendant had brought this claim on direct appeal.

“At issue in this appeal is whether it was error for defendant’s trial attorney, Criswell, to represent defendant in postconviction proceedings initiated by a pro se petition asserting a claim of ineffective assistance of counsel at trial.” Yaworski at ¶ 4. After deciding that the appeal wasn’t moot where the defendant here had served his sentence, the court addressed the merits. The Court mainly relied on People v. Hardin, 217 Ill. 2d 289 (2005), “entails a case-by-case inquiry when a different attorney from the public defender’s office is appointed to advance a claim that trial counsel was ineffective. However, the factors identified in Hardin essentially bear on how closely postconviction counsel’s interests are aligned with trial counsel’s: the more closely aligned, the more likely that a potential conflict of interest will be found to exist. When trial counsel and postconviction counsel are one and the same, the interests are identical and the potential conflict of interest is inherent.” Id. at ¶9. The Court therefore held that “it is improper to appoint an attorney as postconviction counsel to pursue a claim that his or her own performance as trial counsel was incompetent.” Id. at ¶10. The Court thereafter reversed the trial court’s dismissal of the defendant’s petition and remanded with instructions to appoint counsel other than the original trial counsel to represent the defendant.

The result in this case is predictable, especially under the facts of this case. An obvious potential for a conflict of interest occurs when defense counsel is placed in the position of alleging—or not alleging—his own effective assistance. If he alleges in a post-trial pleading that he was ineffective in order to advance the interests of his client, then he is potentially exposing himself to a number of negative personal and professional consequences. The client’s interests and the defense lawyer’s interests are therefore at odds from the onset of the representation. It creates problems where problems can be easily avoided. Here the court “decline[d] to speculate whether Criswell failed to amend the petition because there was no good-faith basis for arguing his own incompetence or, conversely, because there was a good- faith basis for doing so but Criswell was inhibited by self-interest,” but I would expect that the client may have so speculated. This issue could have all been prevented if the court would have simply appointed counsel outside of the Public Defender’s office to represent the defendant in connection with his petition. The reasons for doing this are manifest (and, in fact, many counties, including my home county of Rock Island, do this as a matter of practice), but many cash-strapped jurisdictions do not want to spend precious funds on hiring outside counsel and result to shortcuts like this. However, Yaworski demonstrates that, in the end, this is often no shortcut at all because now the case has been remanded for the proceedings to start anew.

Successive post-conviction petitions must meet cause-and-prejudice test (People v. Wilson, 2014 IL App (1st) 113570)

People v. Wilson, 2014 IL App (1st) 113570 (September 12, 2014) Cook Co., 5th Div. Affirmed. The defendant in Wilson was convicted of first degree murder following a shooting. Wilson was subsequently sentenced to 60 years in prison. On May 28, 2009, defendant filed an initial pro se post-conviction petition claiming that trial counsel was ineffective for failing to file a notice of appeal. The Petition was supported by an affidavit from trial counsel admitting error. The trial court granted defendant’s post-conviction petition based on this single issue and allowed defendant to file a late notice of appeal. The conviction and sentence were affirmed on appeal.

Defendant filed a second pro se post-conviction petition on June 24, 2011. Wilson’s second post-conviction petition raised numerous claims of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise various claims in defendant’s direct appeal. The trial court dismissed the second petition, finding that defendant’s second petition was a successive petition under the Act and failed to meet the “cause-and-prejudice” test necessary for obtaining leave to file a successive petition under the Act. Specifically, the circuit court found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert the claims earlier because “[h]ad they been presented in the initial petition, there is scant probability that petitioner would have prevailed.” Wilson at ¶ 27. Defendant appealed the trial court’s dismissal of the petition, arguing that the second post-conviction petition was not a “successive petition” because he only sought to reinstate his right to appeal, and that his second petition presented a gist of a constitutional claim such that advancement to second stage proceedings was required.

Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f) (West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f) (West 2010). To demonstrate cause, a defendant must identify “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Id. To establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id. Wilson at ¶ 33.

Defendant relied on People v. Little, 2012 IL App (5th) 100547, ¶ 19, to support his proposition that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive petition under section 122-1(f) of the Act. Wilson at ¶ 34. The State contended that Little was not implicated in this case because the circuit court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill. 2d 1 (2009). Wilson at ¶ 35.

The appellate court agreed with the defendant that Little controlled under the facts in this case, and that because defendant’s initial petition only sought to restore his right to appeal, the second petition should have been treated as a first petition, and that, accordingly, defendant was not required to satisfy the procedural prerequisites for filing a successive petition in order for his claims to be considered on the merits.

However, the appellate court can affirm on any basis set forth in the record. People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Reviewing the claims set forth in defendant’s Petition, the appellate court agreed with the trial court that they were frivolous and patently without merit, such that first stage dismissal was still appropriate. In sum, even though the trial court erred by characterized defendant’s second petition as a successive petition, the trial court correctly dismissed the petition based on the merits, or lack thereof.

Judgments are not final until filed with the Clerk (People v. Perez, 2014 IL 115927)

People v. Perez, 2014 IL 115927 (September 18, 2014). Kane Co. Appellate court affirmed. Perez was convicted of first degree murder. His conviction and sentence were affirmed on appeal, and petition for leave to appeal to the Illinois Supreme Court was denied. On November 9, 2010, Perez filed a pro se post-conviction petition. The court signed and dated an order dismissing the petition, sua sponte, on February 7, 2011, but the clerk did not file-stamp the order until the following day (February 8, 2011). The defendant appealed the dismissal of his post-conviction petition, and the Second District appellate court remanded for second stage proceedings.

These above dates are important because section 725 ILCS 5/122-2.1(a) of the PCHA provides that “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…” If the court fails to dismiss the petition sua sponte within 90 days, the petition automatically proceeds to the second stage, and the defendant enjoys all of the benefits of that (chiefly, appointment of counsel). February 7, 2011, was the ninetieth day after the petition was filed. Therefore, if the trial court’s dismissal of Perez’s petition was considered untimely because it was not “entered” until the ninety-first day, the petition would automatically be advanced to second stage proceedings, which the Second District appellate court determined to be appropriate here.

The Second District held that “the dismissal order was untimely because it was not entered until it was filed by the clerk, which occurred on the ninety-first day after the postconviction petition was filed and docketed. The appellate court relied on authority from this court that holds that, for a judgment to be effective, it must be publicly expressed in some manner, at the situs of the proceeding. See Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122 (1990); People ex rel. Schwartz v. Fagerholm, 17 Ill. 2d 131 (1959). The court noted that the record did not reflect the presence of any party, any party’s counsel, or any other court personnel on February 7, 2011, the date that the trial court signed the order, and therefore the first public expression of the court’s order was on February 8 when it was file-stamped by the clerk. 2013 IL App (2d) 110306, ¶¶ 13-14.” Perez at ¶ 5. The State appealed, and the Illinois Supreme Court granted PLA.

The question before the Supreme Court was whether the trial court “enter[ed] an order” pursuant to section 122-2.1(a) of the PCHA when the court signed and dated the order but did not “enter” it with the clerk. The Court mainly looked to Ill. Sup. Ct. Rule 272 and the decisions interpreting it for guidance. “Under Rule 272, a written judgment order is final when signed and filed with the clerk of court. (107 Ill. 2d R. 272.)…” Perez at ¶ 22 (internal citations omitted). Ultimately the Perez court held that the trial court’s dismissal order was untimely “entered” when it had not been filed with the Clerk on the ninetieth day, reasoning that “Illinois law is clear that “entering” a judgment means entering it of record, and there is no support in this court’s case law for the proposition that merely signing a piece of paper is “entering” a judgment. We also see no evidence in section 122-2.1(a) that the legislature intended to upend Illinois law and have the notice of appeal period run from the date the judge signs the order.” Perez at ¶ 26. The Second District was affirmed, and the case was remanded for second-stage proceedings.

This decision makes sense. The Court provided a humorous (but, unfortunately, entirely believable) hypothetical illustrating the perils of holding that orders are “entered” if they are merely signed: “…if the judge signed the order, placed it in his outbox, locked his office door, and went on vacation for a week, the clock would be ticking on defendant’s appeal rights, even though no one but the judge would have any idea that an order had been entered.” Perez at ¶ 21. To require the court to file it with the clerk instead of merely signing it would be the only way to square this decision with past precedent requiring that judgments be “publicly expressed in some manner.” See Granite City Lodge.