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.