Appellate Court Questions Whether Appellate Defender’s Office Should Handle Post-Conviction Appeals

The basic facts of People v. Buchanan, 2019 IL App (2d) 180194 are not very notable. The defendant was convicted of first degree murder and sentenced to life imprisonment. The defendant later filed a 2-1401 petition, alleging that his conviction and sentence were void because an associate judge presided over his case. The petition was dismissed, the defendant appealed, and the Office of the State Appellate Defender (OSAD) was appointed.

OSAD then moved to withdraw in the Appellate Court under Pennsylvania v. Finley and People v. Lee, arguing that Buchanan’s claim was properly dismissed by the trial court. What the Appellate Court said in dicta in response to OSAD’s motion was very notable, though:

“OSAD should have moved to withdraw not under Finley and Lee, but on the ground that the trial court erred in appointing it. Section 10(a) of the State Appellate Defender Act (725 ILCS 105/10(a) (West 2016)) “clearly limits appointment of [OSAD] to appeals from criminal and delinquent minor proceedings” (Alexander v. Pearson, 354 Ill. App. 3d 643, 646 (2004)). Accordingly, a trial court has no authority to appoint OSAD to an appeal from a civil proceeding. See id. at 647 (habeas corpus). “[A]n action brought under section 2- 1401 is a civil proceeding *** even when it is used to challenge a criminal conviction or sentence.” People v. Vincent, 226 Ill. 2d 1, 6 (2007). Thus, here, there was no statutory ground for the trial court’s appointment of OSAD, which should have moved to withdraw on that basis. In light of the “tremendous workload faced by OSAD” and the oft-repeated concerns about the resulting delays (People v. Cisco, 2019 IL App (4th) 160515, ¶ 46), OSAD should ensure that it allocates its scarce resources only to appeals to which it is validly appointed.”

Appeals from 2-1401 petitions and post-conviction petitions (which are also civil in nature) constituent a very significant portion of OSAD’s case load. The Second District suggests here that OSAD should not be accepting these cases because they are civil in nature. The court rarely comments on such issues, especially on its own initiative. It will be interesting to see if the court continues to comment on these issues moving forward.

Ill. Sup. Ct. holds that State’s motion to reconsider sentence could not be heard after defendant filed notice of appeal

The appellant in People v. Abdullah, 2019 IL 123492 appealed the trial court’s order denying his petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure. The Supreme Court reversed and remanded the decision of the circuit court, with directions.

Abdullah was charged and convicted of first degree murder, attempted first degree murder, and aggravated battery with a firearm in June 2005. Id. at ¶ 3. Abdullah was sentenced to concurrent prison terms of 40 years (for first degree murder) and 20 years (for attempted first degree murder). Shortly thereafter, the State filed a Motion to Impose Mandatory Minimum and Mandatory Consecutive Sentence, seeking a minimum 45-year sentence for the first degree murder conviction (with a 25 year firearm enhancement). Id. at ¶ 4. Appellant filed a notice of appeal, which was stricken following argument from the State that the initial sentences were invalid and that the appeal could not be filed before a valid sentence was imposed. The trial court re-sentenced Abdullah, imposing consecutive prison terms of 50 years for first degree murder and 31 years for attempted first degree murder, including a 25-year firearm enhancement for both offenses. Id. at ¶ 6. The sentences were then reduced by the trial court to an aggregate 76 years of imprisonment. On direct appeal, the trial court affirmed the convictions and sentences and subsequently dismissed appellant’s petition filed under the Post-Conviction Hearing Act. Id. at ¶ 7.

In 2014, Abdullah filed a pro se petition, arguing that the 25-year and 20-year enhancements to his sentences violated ex post facto laws because they was unconstitutional at the time of his offense under People v. Morgan, 2013 IL 2d 470 (2003), and deprived him of due process because they were based on facts not alleged in the charging instrument and not submitted to the jury, nor proved beyond a reasonable doubt. Id. at ¶ 8. Abdullah also filed a supplemental argument, arguing that the jury was provided fraudulent instructions regarding consecutive sentences. The trial court conceded it had erred in imposing the firearm enhancements without the State charging them or presenting them to the jury, but found the error harmless and denied the petition. Id. at ¶ 9. Abdullah appealed again, arguing that the increased sentences were void because 1) he had filed a timely notice of appeal, the circuit court lacked jurisdiction to re-sentence him on both counts and increase his sentences, and 2) under Morgan, the firearm enhancement for attempted murder was void ab initio and could not be applied to him even after Morgan was overruled in People v. Sharpe, 216 Ill 2d 481 (2005). Id. at ¶ 10. The appellate court rejected these arguments and affirmed his modified sentences. Id. at ¶ 11. Abdullah then appealed to the Illinois Supreme Court.

The focus of the Supreme Court’s review of Abdullah’s appeal was whether the circuit court properly denied the petition filed under section 2-1401 of the Code of Civil Procedure. Abdullah argued that because Rule 606(b) only directs trial courts to strike notices of appeal, his timely filed notice conferred jurisdiction on the appellate court (despite the State’s pending motion seeking a sentence increase). Id. at ¶ 15. Thus, Abdullah contended that the subsequent sentencing orders were void because the trial court lacked jurisdiction to modify his sentences.

In the alternative, Abdullah restated his argument that the firearm enhancements were unconstitutional and void under Morgan. The State countered that no statute or rule prohibits it from filing a post-trial motion to correct a sentence, and therefore, Rule 606(b) requires the trial court to strike a notice of appeal following a motion to increase sentence. The State also restated its argument about the constitutionality of the firearm enhancement, yet conceded that the 20-year enhancement on the attempted murder charge should be vacated on ex post facto grounds. Id. at ¶ 16.

The Supreme Court determined that a proper sentence, in light of the concession by the State, depended upon whether the subsequent sentencing orders were void for a lack of jurisdiction by the trial court. Id. at ¶ 18. The Supreme Court noted that “a timely notice of appeal is the only jurisdictional step required to confer jurisdiction upon the appellate court,” yet acknowledged an exception listed in Rule 606(b), which states that “any notice of appeal filed before the entry of the order disposing of all pending post-judgement motions shall have no effect and shall be stricken by the trial court.” Id. at ¶ 20-21. In response, Abdullah contended that the exception only applied to instances of post-trial or post-sentencing motions filed by the defense, not the State. As such, Abdullah argued that the State cannot rely upon this exception. The Supreme Court agreed, and determined that the State’s motion was not permitted, and therefore, did not qualify as an exception to the transfer of jurisdiction caused by Abdullah filing a timely notice of appeal. Id. at ¶ 26.

Ultimately, the Supreme Court held that the State’s unauthorized motion to reconsider the sentence had no effect on the jurisdictional impact of appellant’s perfected appeal. Moreover, the trial court’s orders entered after the timely notice of appeal had been filed are void. The Supreme Court found that the circuit court erroneously dismissed the section 2-1401 petition and that the appellate court erroneously affirmed that decision. Id. at ¶ 34. As a result, the sentences entered in November 2005 and modifications in January 2006 were to be vacated, resulting in reinstatement of the original sentences. Id. at ¶ 35.

The Supreme Court reversed and remanded to the circuit court with directions to grant the section 2-1401 petition, vacate the sentencing orders, and reinstate the original sentencing judgment. Id. at ¶ 39.

Illinois Supreme Court holds that trial court is not required to conduct Krankel inquiry unless it is initiated by the defendant

In People v. Bates, 2019 IL 124143, the Illinois Supreme Court was asked to decide whether statements made by counsel during a hearing on a motion for new trial, stating his surprise at the depth of evidence introduced and admission that he would have had the evidence tested by experts if he’d known the depth, constituted an admission of ineffective assistance of counsel requiring a Krankel hearing.

Bates was originally arrested and charged with home invasion, aggravated criminal sexual assault, and other crimes arising from two separate incidents. Id. at ¶ 3. The state alleged crimes against two separate victims and tried each case separately. Bates was represented by a public defender for one of the cases and private counsel for the other. Id. at ¶ 4. At trial for the crimes against A. P. (the proceeding in which Bates was represented by private counsel), the State moved in limine to introduce evidence of the second assault against C. H., pursuant to section 115-7.3(b) of the Code of Criminal Procedure. Id. at ¶ 4. Counsel subsequently moved for a continuance to evaluate the “voluminous” discovery documents and the court appointed  DNA expert to review the DNA testing conducted by the Illinois State Police. Counsel also moved for reconsideration of the order permitting the State to introduce the evidence, arguing that defendant could not receive a fair trial if the evidence was introduced. Id. at ¶ 5-6.

At trial, counsel made conflicting and inconsistent statements regarding the evidence and facts in the C.H. case. Counsel stated that he assumed the evidence and facts in the C.H. case were “basically correct,” yet should be considered by the jury as “not much,” and just an “accusation.” Id. at ¶ 6-7. Both victims, as well as state-appointed DNA expert, testified at trial. DNA matches, or near matches, were testified to by the State’s expert. The defense presented their own DNA expert, who challenged the conclusiveness of the State’s expert’s findings. Id. at ¶ 10. In closing arguments, counsel argued that the jury should not put much weight on the “case within a case” and stated there was no review by any DNA experts. Appellant was found guilty of home invasion and two counts of aggravated criminal sexual conduct.

Bates subsequently moved for a new trial, arguing that the court erred by denying his motion in limine to exclude the other crimes evidence and in granting a motion by the State to exclude evidence regarding A.P.’s sexual history. Id. at ¶ 11. At the hearing for that motion, counsel stated that he was not capable of doing “as good a job in defending [his] client since it wasn’t [his] case,” that he was “taken by surprise at the depth of the evidence and testimony brought by the State’s attorney,” and would have asked for review by experts had he been thinking about that case. Id. at ¶ 11. The court denied the motion.

On appeal, Bates argued that he did not receive effective assistance of counsel, that he was denied his constitutional right to confront witnesses against him, that he should have received a new trial because the State made improper statements in its closing arguments, that the amount of other crimes evidence deprived him of a fair trial, and that the trial court erred when it failed to conduct a Krankel hearing. The appellate court affirmed. Id. at ¶ 12. The Supreme Court granted PLA.

Bates argued in the Supreme Court only that the trial court erred in failing to conduct a Krankel hearing, alleging that counsel’s statements at oral argument for the motion for a new trial constituted an admission that he neglected the case. Id. at ¶ 14. The court noted that Krankel requires the court to inquire into a claim of ineffective assistance of counsel, so long as the claim is clearly raised with the court. Id. at ¶ 15. Further, the court acknowledged efforts and statements made by counsel confirming he had not thoroughly evaluated the other crimes evidence, that he was not the attorney for that proceeding, and counsel’s requests made to the jury not to place weight on that evidence. Additionally, the court noted that the evidence in the C. H. case was “much stronger” than that of the A. P. case. Id. at ¶ 17-18.

Bates argued that the trial court should have treated the statements at the hearing for the motion for a new trial as an admission of neglect and conducted a Krankel hearing. Appellant cited People v. Willis, People v. Williams, and People v. Hayes in support. In response, the appellate court noted that the court has never held that a Krankel hearing may be triggered by a defense counsel’s representations in the absence of a pro se motion, citing People v. McGrath. Id. at ¶ 21. The Supreme Court held that all cited cases, but for Williams, Hayes, and McGrath, were distinguishable in circumstance and fact. Id. at ¶ 31.

Ultimately, the Supreme Court agreed with the holdings of McGrath and the appellate court, which stated that if a defendant fails to raise a pro se claim of ineffective assistance, there is no reason for the trial court to conduct a Krankel hearing. Id. at ¶ 31-32. The court explained to hold otherwise would subject the trial court to an unworkable standard requiring that it scrutinize every statement and action by counsel, including privileged matters.

As such, the Supreme Court affirmed the holding of the appellate court, yet modified it slightly to require a trial court to inquire into counsel’s effectiveness “only upon a clear claim of ineffective assistance by a pro se defendant or by an attorney at the defendant’s direction.” The court found that appellant find not raise a claim of ineffective assistance nor did the record indicate that he had directed counsel to make such a claim. Thus, the court was not required to hold a Krankel hearing. Id. at ¶ 36.

Trial court properly granted Kuehner motion where post-conviction counsel provided evidence that claims were frivolous

The appellant in People v. Fathauer, 2019 IL App (4th) 180241 appealed the trial court’s order dismissing his post-conviction petition on grounds that the court erred by granting post-conviction counsel’s motion to withdraw in light of a stated claim for ineffective assistance of counsel and post-conviction counsel’s failure to amend his pro se petition. The Fourth District Appellate Court affirmed.

Fathauer was originally convicted of participation in methamphetamine manufacturing and obstruction of justice, and sentenced to concurrent terms of 20 years and 3 years imprisonment. Id. at ¶ 1. On direct appeal, both his conviction and sentence were affirmed by the appellate court. Shortly thereafter, Fathauer filed a pro se petition for post-conviction relief, alleging four grounds for relief, including ineffective assistance of trial counsel. Id. at ¶ 2. The trial court appointed appellate counsel, who subsequently filed a motion to withdraw, citing People v. Kuehner, 2015 IL 117695, and arguing that each of the pro se claims were frivolous and patently without merit. Id. at ¶ 3. Counsel’s motion was initially granted by the court, and Fathauer’s appearl was dismissed for want of a final order. Id. at ¶ 4. On remand, the trial court granted the State’s motion to dismiss. This appeal followed.

Fathauer argued on appeal that the trial court erred by granting post-conviction counsel’s motion to withdraw because the petition stated a claim for ineffective assistance of counsel and because post-conviction counsel rendered unreasonable assistance by failing to amend the pro se petition. Id. at ¶ 5. As to the ineffective assistance of trial counsel claim, Fathauer alleged that counsel failed to scientifically test spots on his clothing and point out inconsistencies in trial testimony, and that such a lack of pre-trial investigation by his counsel “deprived him of a potential defense” that would have prevented his conviction at trial. Id. at ¶ 27. The State responded to his petition with a motion to dismiss, arguing that appellant’s claims were barred by res judicata, insufficiently pled, and unsupported by the record. Id. at ¶ 29.

In response to Fathauer’s claims of ineffective assistance of trial counsel, post-conviction counsel, in his motion to withdraw under Kuehner, asserted that “there is no evidence from the record to support” the claims made by Fathauer and that Fathauer had “not demonstrated deficient performance by trial counsel that caused him prejudice.” Id. at ¶ 32. Postconviction counsel also expressed his concurrence with the State that the issue of false testimony had been argued and rejected on direct appeal and was therefore barred by res judicata. As to the Kuehner issue, Fathauer argued that post-conviction counsel should not have been permitted to withdraw because his petition stated the gist of a constitutional claim of ineffective assistance of trial counsel.

The appellate court noted that Kuehner requires a two-step analysis. First, the court must determine whether the trial court advanced the petition to the second stage of postconviction proceedings on its merits, based upon its conclusion that the petition stated the gist of a constitutional claim. Second, the court must evaluate whether counsel provided “at least some explanation as to why, despite its superficial virtue, the pro se petition was in fact frivolous or patently without merit” with respect to each claim. Id. at ¶ 47. On the first requirement, the court held that the appointment of counsel was a sufficient and satisfactory action. Id. at ¶ 48. On the second requirement, the court held that it must address whether postconviction counsel (1) provided some information that was not apparent on the face of the petition that (2) demonstrated that each of defendant’s pro se claims were in fact frivolous and patently without merit. Id. at ¶ 50.

To that end, the court held that when post-conviction counsel provided the trial court with the full transcript of the witness’ testimony and the court’s decision on direct appeal, counsel was calling the court’s attention to information not apparent on the face of the petition and met Kuehner’s requirement. Id. at ¶ 52. Moreover, the court held that if counsel determines that appellant’s claims are barred by res judicata or are contradicted by the record, counsel has an ethical obligation to move to withdraw if he reasonably believes that the trial court erred when it found the petition had merit at first glance. Id. at ¶ 58. The court found further that post-conviction counsel had properly explained why each of the claims within the post-conviction petition were frivolous and patently without merit. Id. at ¶ 64. Thus, the court held that counsel’s motion to withdraw was proper under Kuehner.

Finally, as to Fathauer’s assertion of unreasonable assistance of post-conviction counsel for failing to amend his pro se petition, the court held that appellant’s claims were contradicted by the record, and that, because counsel is not required to advance frivolous claims, could not amount to unreasonable assistance. Id at ¶ 68. The Appellate Court affirmed.