Illinois Supreme Court declines to extend Krankel hearings to post-conviction cases

The petitioner in People v. Custer, 2019 IL 123339, requested the Illinois Supreme Court to extend procedures and protections established in People v. Krankel to claims of unreasonable assistance by post-conviction counsel in proceedings under the Post Conviction Hearing Act. Ultimately, the Supreme Court declined the invitation to expand its application of Krankel.

Custer was initially charged with unlawful possession of a controlled substance. Custer entered an open guilty plea to the charge. Prior to sentencing, petitioner was arrested again and charged with unlawful possession of a weapon by a felon, aggravated assault, unlawful use of a weapon, and aggravated battery. Id. at ¶ 4. Petitioner then failed to return for sentencing in the initial drug case and was subsequently arrested again. At sentencing, petitioner was sentenced to the maximum sentence of six years in prison. Id. at ¶ 5. Petitioner entered a negotiated plea to the charges of aggravated battery and unlawful possession of a weapon in exchange for the dismissal of the remaining charges. Petitioner was sentenced to consecutive 4 ½-year and 5-year sentences in prison. Id. at ¶ 6.

Shortly thereafter, Custer filed a pro se post-conviction petition, alleging ineffective assistance of trial counsel in the drug case for failing to appeal or move to withdraw his guilty plea at his request. Id. at ¶ 7. The petition advanced to the second stage of proceedings, where post-conviction counsel was appointed. Post-conviction counsel filed a brief containing four affidavits from petitioner corroborating his claims via by stating that both he and his girlfriend had asked to appeal his conviction and sentence and withdraw his plea. The petition was advanced to the third stage of postconviction proceedings as a result, and a third-stage evidentiary hearing was scheduled. Prior to the hearing, Custer’s girlfriend sent a letter to the trial court (1) refuting petitioner’s innocence, (2) claiming she helped petitioner agree to plead guilty, (3) stating she’d been informed by trial counsel he was filing an appeal, and, (4) post-conviction counsel had refused to take her statement. Id. at ¶ 8.

At the hearing, Custer testified that trial counsel had advised him he’d likely be sentenced to “probation or three years in prison” if he pled guilty to the drug charge. Custer testified that after receiving a six-year sentence, he had requested trial counsel file an appeal. Petitioner further alleged that trial counsel had informed Custer a month following his request that he did not appeal the sentence because he found no viable appellate issues. Id. at ¶ 9. At the hearing, trial counsel denied ever being asked to appeal or withdraw his plea, stating he would have filed for both if petitioner had asked. Id. at ¶ 10. The court found the claims raised by petitioner to be “totally unbelievable” and “clearly contradicted by the facts and circumstances set forth in the record.” Id. at ¶ 12. The court found trial counsel to be “very believable.”

At the hearing on Custer’s motion to reconsider, the trial court immediately denied the motion after the State argued that the motion lacked any valid grounds for reconsideration. Id. at ¶ 14. Custer then filed a successive post-conviction petition, arguing that the trial court erred in denying his reconsideration request without first conducting a Krankel hearing. Despite the fact that Krankel has never been extended to post-conviction proceedings, the appellate court remanded the cause to the trial court for a “Krankel-like inquiry.” Id. at ¶ 15. The state filed a petition for leave to appeal that order under Illinois Supreme Court Rule 315(a), which was allowed.

The Supreme Court outlined the question before them as “whether the holding in Krankel, mandating a preliminary inquiry into the factual basis for a defendant’s pro se claim that trial counsel provided ineffective assistance, should be extended to claims involving post-conviction counsel.” Id. at ¶ 17. The Court’s review was conducted de nov oand included evaluations of forfeiture and mootness claims brought by the petitioner, in addition the primary question regarding Krankel.

On the forfeiture issue, the Supreme Court decided to consider the mootness claim, because forfeiture applies exclusively to the parties, not the court. As such, the Court held that they may address the forfeited issues. Id. at ¶ 19. On the mootness issue, the Supreme Court agreed with Custer and rejected the State’s argument that the question was moot because petitioner had already received the requested relief. Id. at ¶ 21. The Court held that the “cursory hearing conducted by the trial court does not demonstrate that it adequately considered petitioner’s pro se claim of inadequate representation pursuant to Krankel.” Id. at ¶ 22.

On the substantive dispute on appeal, the applicability of Krankel to post-conviction counsel, the Court acknowledged that their opinion in Krankel has evolved to provide a means for defendants to assert post-trial claims that trial counsel provided ineffective assistance. However, the Court noted that the petitioner’s claim pertained to post-conviction counsel, a new question for the Court.

The Court interpreted Custer’s “largely undefined” request as a question to “determine if conflict-free counsel needs to be appointed to represent [the petitioner] at the hearing on his motion to reconsider.” Id. at ¶ 28.  The Court noted that “criminal defendants seeking relief in postconviction proceedings have no constitutional right to counsel, effective or otherwise” and are entitled to only the “level of assistance guaranteed by the Act,” widely acknowledged to be a “reasonable level.” Id. at ¶ 30. The Court further noted that this standard is significantly lower than the one mandated at trial by the state and federal constitutions. The Court further pointed to Illinois Supreme Court Rules, such as Rule 651, which sharply limited the duties of post-conviction counsel. Id. at ¶ 32.

Despite the limited guarantees afforded to petitioners in post-conviction proceedings, the petitioner relied upon the Supreme Court’s unanimous decision in People v. Johnson, 2018 IL 122227, which the court concluded “flatly fails to support petitioner’s contention that Krankel applies to pro se allegations of unreasonable assistance by postconviction counsel.” Id. at ¶ 33.

The Court also adopted the State’s argument that the extension of Krankel would magnify the potential for wasting limited judicial resources and multiply the already heavy strain Krankel places on our trial courts without any additional benefits. Id. at ¶ 35. The court found arguments made by the petitioner in response to this argument as unpersuasive because they had no measurable effect on the outcome of appeals. Id. at ¶ 39. The court concluded that “none of the benefits petitioner cites from extending Krankel to allegations that postconviction counsel provided inadequate assistance are as compelling as they were in their original posttrial context. Consequently, the analytical weight of those benefits in postconviction cases is lower than in our original Krankel calculus, while the weight of the adverse effects on available resources is necessarily higher.” Id. at ¶ 41.

Ultimately, the Supreme Court of Illinois declined Custer’s invitation to extend the post-trial motion procedures created in Krankel to allegations of unreasonable assistance by post-conviction counsel and remanded the cause to the appellate court for its initial consideration. Id. at ¶ 46.

Summary dismissal of petition was proper where appellate counsel was not ineffective for failing to argue improper sentencing factors

The appellant in People v. Todd, 2019 IL App (3d) 170153 appealed the trial court’s order summarily dismissing his pro se post-conviction petition on the grounds that the court erred because the petition presented an arguable claim of ineffective assistance of counsel. The Appellate Court of Illinois Third District affirmed the decision of the Circuit Court of Whiteside County.

Todd entered an open plea to one count of unlawful delivery of a controlled substance, which was accepted by the court. Prior to sentencing, the State produced a pre-sentence investigation report (PSI) which stated that Todd had five prior felony convictions. Id. at ¶ 3-4. As a result, at sentencing, the court found, in aggravation, that Todd had a significant history of criminal activity and a prison sentence was necessary to “deter others from committing the same crime.” Id. at ¶ 5. The court further noted the large amount of the controlled substance included in the sale and referred to it as “more than just a casual deal,” prior to sentencing defendant to 25 years’ imprisonment.

On direct appeal, appellant’s counsel unsuccessfully raised claims of ineffective assistance of counsel related assertions made by trial counsel that Todd’s plea deal include a 10-year sentencing cap; that Todd’s plea was not knowingly or voluntarily entered; that he was denied the benefit of the bargain made with the State; and that the court violated his due process rights when it denied his motion to vacate a directed finding. The court affirmed the conviction and sentence. Id. at ¶ 6.

Todd then filed a pro se post-conviction petition which alleged four claims: (1) post-trial counsel provided ineffective assistance, (2) appellate counsel was ineffective, (3) the court had violated appellant’s due process rights, and (4) the court deprived appellant of his due process rights when it considered the amount of the controlled substance as an aggravating factor at sentencing. Id. at ¶ 7. The court found the claims in the petition to be frivolous and patently without merit and summarily dismissed it. This appeal followed.

Todd argued on appeal that the trial court erroneously dismissed his pro se post-conviction petition because it presented an arguable claim of ineffective assistance of appellate counsel, who failed to argue on direct appeal that the court relied on an improper factor at sentencing. The aforementioned factor was the amount of the controlled substance sold, as noted in the pro se petition. Id. at ¶ 9.

The appellate court found that the circuit court properly dismissed the previously raised claims of ineffective assistance of trial counsel and due process violations, as the claims were barred by res judicata and waiver. Id. at ¶ 11.

As to the remaining claim, in order to proceed past the first stage of post-conviction proceedings, the court held that the ineffective assistance of appellate counsel claim must make an arguable assertion that (1) counsel’s performance fell below an objective standard of reasonableness and (2) appellant was prejudiced as a result. Id. at ¶ 12. Moreover, the court held that appellant counsel, in general, is not required to brief every conceivable issue and is not incompetent for refraining from raising an issue without merit, unless their evaluation of the merits of a claim is patently wrong. Id. at ¶ 12. The court further acknowledged that while “a factor implicit in the offense for which a defendant has been convicted cannot be used as an aggravating factor in sentencing,” legislative intent may allow such use of the factor. Id. at ¶ 13. The court looked to the plain language of the statute to determine whether use of the factor in appellant’s instance was justified.

Subsection 401(a)(2)(A) of Section 401 of the Illinois Controlled Substances Act criminalizes the offense of possessing with an intent to deliver a substance containing cocaine and provides a sentence of “not less than 6 years and not more than 30 years with respect to 15 grams or more but less than 100 grams of a substance containing cocaine, or an analog thereof.” Id. at ¶ 14. The statute’s sentencing guidelines provide “wide latitude in sentencing discretion” and explicitly allow for the consideration of the amount of the substance as an aggravating factor at sentencing.

That, taken with the additional aggravating factors in the PSI, led the appellate court to conclude that the circuit court properly considered the amount of cocaine during sentencing, and appellate counsel did not have a duty to raise the meritless sentencing issue. Id at ¶ 15.

As such, the Appellate Court of Illinois Third District ruled the circuit court did not err when it summarily dismissed appellant’s pro se post-conviction petition and affirmed the judgment of the Circuit Court of Whiteside County.

 

 

Illinois Supreme Court grants leave to appeal in several post-conviction cases

The Illinois Supreme Court granted petitions for leave to appeal in a slate of interesting post-conviction cases on September 25, 2019. This means that the court has agreed to hear these appeals, and that its decision in these cases will be binding on all lower appellate and trial courts.

People v. Green, 2019 IL App (2d) 160217-U (link to original opinion)

Defendant argued that the trial court erred by denying his post-conviction petition because he established that defense counsel had a per se conflict of interest where counsel previously represented the intended victim of the murder, and defendant neither knew about the conflict nor waived it. The appellate court affirmed and the petitioner is seeking reversal.

People v. Stoecker, 2019 IL App (3d) 160781 (link to original opinion)

Defendant appealed the dismissal of his petition for relief from judgment, arguing that (1) his due process rights were violated where the court did not give him a meaningful opportunity to respond to the State’s motion to dismiss and the court held an ex partehearing on the motion and (2) his counsel did not adequately represent him. The appellate court affirmed and the petitioner is seeking reversal.

People v. Reed, 2019 IL App (4th) 170090 (blog post on opinion)

After an evidentiary hearing, the circuit court denied post-conviction relief to defendant, who is serving a prison sentence of 15 years for armed violence. He appealed, arguing that newly discovered evidence he presented to the court in the post-conviction hearing proved, clearly and convincingly, that he actually was innocent of armed violence despite his earlier negotiated guilty plea to that offense. The appellate court held that petitioner was bound by his guilty plea and that his claim of actual innocence could not be entertained. The petitioner is seeking reversal.

People v. Knapp, 2019 IL App (2d) 160162 (blog post on opinion)

Defendant filed a post-conviction petition arguing that his trial counsel provided ineffective assistance to him by misleading the defendant into giving up his right to testify. The appellate court affirmed the trial court’s first stage dismissal of defendant’s post-conviction petition where petition failed to state that defendant told trial counsel that he wanted to testify and where record rebutted petitioner’s claim. The petitioner is seeking reversal.

People v. Jackson, 2018 IL App (1st) 171773 (original opinion)

Defendant filed a post-conviction petition alleging actual innocence, arguing that his conviction was obtained by the prior inconsistent statements of three witnesses, who testified that their inconsistent statements resulted from police coercion, which was documented in that police department. The trial court denied the petition, and the appellate court affirmed. The petitioner is seeking reversal.