Monthly Archives: April 2015

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)

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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).

The 30-day waiting period for sua sponte dismissal of 2-1401 petitions does not apply for successive 2-1401 petitions (People v. Donley, 2015 IL App (4th) 130223)

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People v. Donley, 2015 IL App (4th) 130223 (March 26, 2015) Livingston Co. Affirmed. Robert Donley was convicted of first degree murder following a 1997 bench trial. He was sentenced to 45 years DOC. His conviction and sentence were affirmed on appeal. Donley thereafter launched numerous unsuccessful attempts to collaterally attack his conviction and sentence pursuant to the PCHA. This appeal concerns two petitions for relief from judgment filed pursuant 735 ILCS 5/2-1401, the first of which was filed in January of 2013 and the second of which was filed in June of 2013. The first 2-1401 petition challenged defendant’s 3-year term of MSR. This petition was dismissed sua sponte with prejudice in March of 2013. The second 2-1401 petition claimed that defendant’s “conviction and sentence was obtained by fraud, ignorance, and deprivation of a defense.” This petition was also dismissed sua sponte with prejudice in June of 2013. The defendant appealed the dismissal of both, contending “that (1) because he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), his petitions were not ripe for adjudication; and (2) the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn, 233 Ill. 2d 318 (Ill. 2009). Donley requested that the appellate court vacate the trial court’s dismissal of his 2-1401 petitions and remand for further proceedings.

Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) states that notice of the filing of a petition under section 2-1401 of the Code “shall be given by the same methods provided in Rule 105.” Rule 105(b) provides that notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must state that a judgment by default may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)). ¶ 29.

The defendant argued that “when he sent his petitions through the regular mail instead of providing the State notice by either (1) summons, (2) certified or registered mail, or (3) publication, he failed to comply with Rule 105. Given his failure, defendant posits that the 30-day period for the State to answer or otherwise plead did not begin. From that premise, defendant claims that the court’s sua sponte dismissal was premature because his January and June 2013 petitions were not yet ripe for adjudication.” ¶ 32. However, the Court, in relying on People v. Alexander, 2014 IL App (4th) 130132, a case I discussed earlier in February, rejected this argument, adhering to “its conclusion in Alexander that a ‘[d]efendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal” of the trial court’s decision. ¶ 34.

As to defendant’s second argument that “the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn,” the Court distinguished defendant’s case from Laugharn because the petition at issue was a successive 2-1401 petition, whereas Laugharn concerned the dismissal of an initial 2-1401 petition. Under the circumstances presented in this case, the Donnelly court held, “we reject defendant’s argument that the supreme court’s decision in Laugharn prohibits a trial court from immediately considering a successive section 2-1401 petition that (1) does not comport with the requirements outlined in section 2-1401 of the Code or (2) raises claims the court has previously considered and rejected or could have been raised in the initial section 2-1401 pleading. As we have previously noted, the 30-day rule announced in Laugharn was intended to allow a party sufficient time to respond to a section 2-1401 petition instead of empowering a prisoner to persist in filing frivolous claims. The supreme court in Laugharn was not dealing with a successive section 2-1401 petition, and we do not believe that the supreme court would limit a trial court’s authority on handling such petitions, especially, as here, when they are clearly frivolous.”¶ 34.

Clearly frustrated by the defendant’s repeatedly frivolous filings, the Court, in addition to affirming the trial court’s dismissal of defendant’s 2-1401 petition, issued a rule to show cause why defendant shouldn’t be sanctioned, and ordered the clerk to reject anymore filings from the defendant.

Post-conviction petitions must be supported by evidence; if that is in the form of an affidavit, then the affidavit must be notarized (People v. Brown, 2015 IL App (1st) 122940)

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People v. Brown, 2015 IL App (1st) 122940 (March 11, 2015) Cook Co. Affirmed. The defendant in Brown was convicted of unlawful use of a weapon by a felon after a jury trial. He was sentenced to 13 year DOC, and his conviction and sentence were affirmed on appeal. Brown filed a post-conviction petition alleging that his trial counsel provided ineffective assistance for “failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State’s guilty plea offer and the extended sentence he faced if convicted at trial” and laboring under a conflict of interest because trial counsel also represented a man who could have been a potential defense witness. ¶ 1. Brown’s Petition was dismissed at second stage because “allegations in Brown’s petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record…” ¶ 2.

Brown attached his own affidavit in support of his petition, as well as an affidavit from trial counsel, an affidavit from a potential witness named Arnold Misher, and a handwritten statement entitled “affidavit” from another individual. Brown’s affidavit attested that he told trial counsel that another person had possessed the weapon that Brown was convicted of possessing, and that this person would testify to this, but that his lawyer indicated to Brown that she would not call this witness because he was a “trouble maker.” The affidavit also averred that trial counsel never communicated the State’s 3-year DOC offer to the defendant. Trial counsel’s affidavit indicated that she was concerned about the effect that any plea agreement would have on Brown’s federal parole and that Brown was not interested in accepting the State’s 3-year DOC offer. Misher’s affidavit recalled the arrest of defendant and did not mention defendant having a gun. The handwritten statement that was entitled “affidavit” but was unsigned, undated, and not notarized, was from a witness who made vague reference to seeing a man wearing a white shirt with a machine gun prior to the police arriving. The statement did not mention Brown. Brown later amended the petition and attached two additional documents entitled “Affidavit” that were not notarized. These were purportedly from additional witnesses with similar stories. Both “Affidavits” stated that the witnesses had not seen Brown with a gun.

Brown’s petition had advanced first stage proceedings, but was dismissed at the second stage. The relevant question raised during a second-stage postconviction proceeding is whether the petition’s allegations, supported by the trial record and accompanying affidavits, demonstrate a substantial showing of a constitutional deprivation, which requires an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). All well-pled facts in the petition and affidavits are taken as true, but assertions that are really conclusions add nothing to the required showing to trigger an evidentiary hearing under the Act. Id.

The appellate court held that Brown’s petition was properly denied at the second stage. As to the ineffective assistance of counsel claim that Brown’s trial counsel failed to call these various witnesses who have testified that they did not see him with a gun, “the defendant’s allegation must be supported by an affidavit from that witness that contains the witness’s proposed testimony.” 725 ILCS 5/122-2 (West 2010); People v. Enis, 194 Ill. 2d 361, 380 (2000); see also People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (when defendant attacks competency of trial counsel in postconviction petition for failure to call or contact certain witnesses, defendant must attach affidavits from those witnesses). “In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 380. Affidavits must be notarized in order to satisfy the pleading requirements of section 5/122-2 of the Act. The “affidavits” purportedly made by these various witnesses that Brown sought to have trial counsel call at trial were legally insufficient because they were not notarized, and Brown did not offer any explanation for why they were not notarized.

However, even “Construing the notarization requirement as a technicality, we find the affidavits Brown offered in support of his allegations are still insufficient to support his allegation that trial counsel was ineffective for failing to call each of his proposed witnesses to testify. Brown cannot overcome the strong presumption that counsel strategically decided which witnesses to call to testify at his trial and he has not made a substantial showing of prejudice based on counsel’s decision not to call any of his proposed witnesses.” ¶ 55. The appellate court also dismissed Brown’s claim that trial counsel did not communicate the State’s offer to him because 1) the trial court independently recalled defense counsel communicating the offer to Brown, and 2) Brown failed to show prejudice, even if he could prove that trial counsel failed to communicate the offer to him. The court found that the remainder of Brown’s claim lacked evidentiary support from his affidavits.

Brown demonstrates 1) the importance of supplying evidence to accompany the legal claims made in the post-conviction petition, and 2) if that evidence is in the form of an affidavit, that document needs to be notarized in order to meeting the pleading requirements of the Act.