Appellate Court remands for Krankel hearing where defendant makes ineffective assistance claims to Probation during PSI interview

The appellant in People v. Downing, 2019 IL App (1st) 170329 appealed the trial court’s decision denying a request made by the State for a Krankel inquiry into alleged ineffective assistance of Downing’s trial counsel. The First District held that, despite an initial answer to the contrary, a Krankel inquiry was necessitated in this case, reversing the judgment of the circuit court, and remanding for Krankel proceedings. Id. at ¶ 4.

Downing was found guilty of possession of cannabis with intent to deliver. During his pre-sentence investigation interview, Downing complained of his trial counsel’s performance, which complaints were evidenced in the pre-sentence investigation report (PSI). These complaints included allegations that counsel requested to call three witnesses at trial, who were never called; requested new counsel, which was never provided; was denied a request testify on his own behalf; allowed the police to make false statements at trial; failed to raise issues regarding the arresting officers’ failure to read him his Miranda rights; and failed to challenge inaccuracies in the police report. Id at ¶ 10.

At sentencing, the State argued in aggravation that the complaints detailed in the PSI were evidence of Downing’s lack of remorse. Id. at ¶ 11. However, neither at sentencing nor in any other communication with the court did Downing repeat his complaints about his counsel. Downing was subsequently sentenced to seven years imprisonment. Id. at ¶ 12. This appeal followed.

On appeal, Downing argued that the trial court was required to conduct a Krankel inquiry into the allegations of attorney incompetence expressed to the probation department during his PSI interview. Id. at ¶ 15. At the outset, the court acknowledged “there is no dispute that at least some of these allegations sufficed, in terms of their content, to raise a pro se post-trial claim of ineffective assistance of counsel.” Id. at ¶ 17. However, the court noted its decision ought not be predicated on the content of the claims, but the manner in which they were received by the trial court, and by whom they were delivered. Id. at ¶ 18. As a result, the court held that the question they must evaluate was whether allegations of ineffective assistance of counsel, attributed to the defendant but presented to the trial court in open court by someone other than the defendant, require the court to conduct a Krankel inquiry. Id. at ¶ 18.

The court held that it should not make “a difference that the issue [of ineffective assistance of counsel] was raised by the State.” Id. at ¶ 21. As a result, the court concluded that it was a logical extension of existing precedent (Jackson) to hold that, because the State emphasized in open court that defendant had complained about his trial representation and specifically directed the trial court to the page of the PSI in which those complaints appeared, the trial court had a duty under Krankel to conduct an inquiry into the substance of these claims. Id. at ¶ 22. The court further held that more recent case law (Harris) supported such a holding in this case. Id. at ¶ 23.

As a result, the First District remanded this case to the trial court for a preliminary Krankel inquiry, which is designed to determine whether defendant wishes to pursue his allegations in a Krankel proceeding. Id. at ¶ 71. In the event defendant wishes to pursue them, the trial court is instructed to determine whether the allegations reveal possible neglect of the case by counsel. Id. at ¶ 72.

Petitioner was not able to show prejudice under Strickland where he was unable to show that it would have been reasonable to reject the plea offer

The appellant in People v. Watkins, 2019 IL App (4th) 180605 appealed the decision of the trial court striking his post-plea motions to withdraw his guilty pleas as untimely and summarily dismissing his post-conviction petition. The Fourth District affirmed the judgments of the trial court because the appellant withdrew his challenges to the dismissal of his post-plea motions and found the post-conviction petition to be frivolous and patently without merit. Id. at ¶ 2.

Watkins entered negotiated guilty pleas for unlawful possession of a controlled substance with the intent to deliver it, for which he received two consecutive six-year terms of imprisonment. Id. at ¶ 1. At the time the trial court accepted the plea, the court found the factual bases to be sufficient and the guilty pleas to be knowingly, voluntarily, and intelligently made. Id. at ¶ 7.

Shortly thereafter, Watkins moved to withdraw his guilty pleas in both cases, while simultaneously petitioning the court for post-conviction relief. Id. at ¶ 10. The post-plea motions alleged that the pleas had been “induced by erroneous advice and urging by [defense counsel] that pleading guilty was the only choice that [he] had because all the evidence suggested that he was guilty.” Watkins further alleged that the guilty pleas were not voluntary and knowing and that he was not aware of the direct consequences of his pleas. Id. at ¶ 10. Both petitions were stricken as untimely for being filed “well after” 30 days after judgment. Id. at ¶ 11.

As noted, at the time the motion to withdraw guilty plea was entered, Watkins also filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel for failing to challenge the legality of the traffic stop resulting in appellant’s arrest. Id. at ¶ 13. Appellant alleged that this ineffective assistance resulted in an involuntary guilty plea and the subversion of his will via bad legal advice. Watkins argued that defense counsel should have subjected the State’s case to meaningful adversarial testing by filing a motion to suppress, which would have been granted by the court. The petition included three reasons why Watkins had suffered a violation of his fourth amendment rights during the traffic stop. Shortly after filing, the circuit court summarily dismissed the post-conviction petition. This appeal followed.

On appeal, Watkins abandoned his challenge to the dismissal of the motions to withdraw both guilty pleas. As such, the court did not evaluate these claims and affirmed the circuit court’s judgement in this regard. Id. at ¶ 21.

On the summary dismissal of the post-conviction petition, the court determined that because any claim of substantial denial of constitutional rights not raised in the original or amended post-conviction petition is waived, its analysis would be limited exclusively to issues raised in the original petition. Id. at ¶ 24. To that end, the court utilized the Strickland test for determining the effectiveness of defense counsel, requiring a petitioner to demonstrate both deficient performance and prejudice resulting from the alleged ineffective assistance. Id. at ¶ 29.

The court noted that under the Strickland standard, “a conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice;” rather, a petitioner must also demonstrate that a decision to reject the plea bargain would have been rational under the circumstances. Id. at ¶ 31. In its review of the reasonableness of defense counsel’s advice to accept the plea deal (as opposed to filing a motion to suppress), the court held that counsel’s advice to accept a plea deal for less than half the maximum prison term was a strategic decision that the court owed great deference to. It therefore concluded that the post-conviction petition in this case was frivolous. Id. at ¶ 39. The appellate court affirmed.

Appellate court reverses denial of 2-1401 petition where State did not file a response

The appellant in People v. Cathey2019 IL App (1st) 153118, appealed the decision of the trial court dismissing two petitions seeking relief from convictions, on grounds that the court erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure attacking his convictions under the one-act, one-crime rule. Appellant further contended that his petition “in nature of writ of error coram nobis” sufficiently stated a claim of actual innocence (based on planted evidence) and that his plea was obtained under threat of physical harm to him and his family. The First District affirmed the dismissal of appellant’s coram nobis petition but reversed the dismissal of his section 2-1401 petition and remanded for further proceedings.

Cathey was found guilty at jury trial for attempted first degree murder and aggravated battery with a firearm and sentenced to 20 years’ imprisonment for both charges. Cathey’s sentences were ordered to be served concurrently. Id. at ¶ 2-9. Cathey unsuccessfully appealed his convictions, arguing, unpersuasively, that his counsel was ineffective and that his due process rights had been violated. Id. at ¶ 10. After his subsequent pro se post-conviction petition was dismissed by the trial court, he filed the petitions for which this appeal is the subject.

The appellate court’s analysis of each of appellant’s petitions were conducted independent of one another. The court evaluated appellant’s section 2-1401 petition first.

Upon filing his pro se section 2-1401 petition alleging a one-act, one-crime violation, the State did not file a response. Id. at ¶ 12. Shortly after filing, the trial court sua sponte dismissed the petition. At no point did the court orally state its reasons for dismissing the petition, nor did it state for the record that Cathey or a representative was present. In its written order, the trial court found Cathey’s petition untimely since it was filed more than 20 years beyond the limitations period. The court also found that defendant was not entitled to relief on his one-act, one-crime claim “because aggravated discharge of a firearm and attempt murder are separate convictions.” Id. at ¶ 12. This appeal followed.

The court noted that section 2-1401 sets forth a procedure, that extends to criminal cases, by which the trial court may vacate final orders and judgements more than 30 days after their entry. Further, the court noted that because the State failed to file a response to the petition and the trial court did not hold a hearing before dismissing the petition, the threshold issue is whether the trial court had the authority to dismiss defendant’s section 2-1401 petition sua sponte because it was untimely filed where the timeliness issue was never raised by the parties. Id. at ¶ 14.

The appellate court found that pursuant to rulings in People v. Vincent and People v. Pinkonsly, the trial court cannot sua sponte dismiss a section 2-1401 petition based on untimeliness if that issue was never raised before the court. Id. at ¶ 18. Further, the court held that when the State does not answer a petition, its failure to respond constitutes an admission of all well-pleaded facts and that no triable issue of fact exists. Id. at ¶ 18. The court reasoned that where the State forfeits the timeliness defense by not answering the petition, defendant has no opportunity to amend his petition to allege facts showing a potential factual dispute, and dismissal, in this context, would be improper as a matter of law.

On the merits of the petition, the court held that while the petition sufficiently alleged a meritorious claim, “to obtain relief defendant must also allege facts supporting due diligence in presenting the claim to the trial court, and due diligence in filing section 2-1401 petition.” Id. at ¶ 27. Appellant alleged in his petition that he was not aware of the one-act, one-crime rule until September 2013, and that he relied upon his attorney to conduct his defense. The court ruled that while they must take all-well pleaded allegations as true, the issue of defendant’s diligence here raises questions of fact more suitable for an evidentiary hearing. As a result, the appellate court reversed the dismissal of appellant’s petition and remanded the cause for an evidentiary hearing on the issue of defendant’s diligence. Id. at ¶ 28.

On the motion in “Nature of Writ of Error Coram Nobis,” the appellate court noted that Illinois legislature had long ago replaced the common law writ with the statutory scheme that was the predecessor to section 2-1401 of the Code. As such, the motion was treated as a section 2-1401 petition for relief. Id. at ¶ 41. Under that framework, the appellate court determined the new evidence presented by appellant was “not of such conclusive character that it would change the result upon retrial” and therefore, the trial court had properly dismissed the petition. Id at ¶ 50.

Ultimately, the Appellate Court of Illinois First District affirmed in part, and reversed in part, the dismissal of appellant’s section 2-1401 petition and coram nobis petition. The case was remanded for further proceedings.


Denial of pro se motion reversed where court did not notify petitioner that it was re-characterizing his pleading before denying it

The appellant in People v. Cook, 2019 IL App (1st) 161428, appealed the trial court’s denial of his pro se “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings.” Cook contended that the court erred in re-characterizing his motion as a successive post-conviction petition and denying him leave to file it without first notifying him and giving him an opportunity to withdraw or amend it. The appellate court agreed and vacated the trial court’s order and remanded to give Cook the requisite notice and opportunity to withdraw or amend the motion. Id. at ¶ 2.

Cook filed his “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings” absent citation or naming any statutory basis for his filing it. However, the motion claimed newly discovered evidence and argued that he was not proved guilty beyond a reasonable doubt, he was actually innocent, and he was wrongfully convicted. Id. at ¶ 4.

The motion was not supported by any attachments. The circuit court issued an order finding that the filing asserted constitutional claims as a collateral attack on his conviction and characterized the filing as a successive post-conviction petition. In the same order, the court denied leave to file the petition, finding that the claims were barred by waiver and res judicata and that Cook had not stated the requisite cause and prejudice for a successive post-conviction petition to be filed. Id. at ¶ 5. Cook appealed.

On appeal, Cook’s sole contention was that the court erred in re-characterizing the pleading as a successive post-conviction petition without giving Cook notice and an opportunity to amend or withdraw it, as required under People v. Shellstrom and People v. Pearson. Id. at ¶ 7. The State did not dispute appellant’s contention. However, the State argued that the court was not required to provide notice, as the filing was not a pleading commencing an action cognizable under Illinois law.

The appellate court held that while it is settled law that the court can re-characterize a pro se pleading alleging a deprivation of rights cognizable in an post-conviction proceeding (even when it is not labeled as such), the Shellstrom court held “when a circuit court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must (1) notify the pro se litigant” among other requirements. Id. at ¶ 10.

In response to the State’s argument that appellant’s motion did not include a pleading cognizable under Illinois law and therefore Shellstrom/Pearson should not apply, the court looked to People v. Swamynathan, which held that Shellstrom applied, despite not being a pleading commencing a cognizable action other than a post-conviction petition. The appellate court held that Shellstrom admonishments always follow a re-characterization, not just when the cognizable-action provisio applies. Id. at ¶ 16.

Ultimately, the appellate court found that the circuit court erred by not giving appellant the three-part Shellstrom admonishments upon re-characterizing his pro se motion as a successive post-conviction petition and denying leave to file it as such. Id. at ¶ 20. The appellate court vacated the trial court’s judgment and remanded to the case to the trial court to provide appellant with the Shellstrom admonishments.