The appellant in People v. Johnson, 2019 IL App (1^st) 163169 appealed the trial court’s order dismissing his pro se petition for post-conviction relief on standing grounds. The First District affirmed the decision of the trial court.

Recardo Johnson pled guilty to unlawful restraint in exchange for a sentence of two years’ imprisonment. Upon entering his plea, Johnson stated that he understood he was giving up certain rights by pleading guilty, including his right to plead not guilty and have a jury trial. Johnson confirmed that he was not threatened or promised anything in exchange for his plea. Id. at ¶ 4.

Johnson, pro se, moved to file a late postconviction petition, arguing that the age of the victim in his case was never stated in court, the court never informed him that he would need to register under the Child Murderer and Violent Offender Against Youth Registration Act, and that his plea counsel was ineffective for failing to tell him he would need to register under the Act. Id. at ¶ 6. The petition was summarily dismissed as he had not withdrawn his plea, appealed the conviction, and had already served the term of imprisonment and MSR to which he was sentenced.

The court noted that at the time of filing, Johnson was serving a two-year sentence for failing to register under the Act. Id. at ¶ 7. The circuit court concluded that the Act and its remedies are not available to petitioners who have completed their sentences and merely seeking to purge their criminal records, rendering the petition frivolous and patently without merit. This appeal followed.

On appeal, Johnson argued that the circuit court erred in dismissing the petition at the first stage on the basis of standing. The court noted this argument gave rise to two separate questions: (1) whether standing is ever an appropriate consideration at the first stage of postconviction proceedings and, if so, (2) whether, in this case, appellant’s argument that he has standing is frivolous or patently without merit. Id. at ¶ 11.

Johnson argued that standing is never an appropriate basis for dismissal at the first stage of proceedings, however, the court agreed with the State that the circuit court properly dismissed the petition based on standing because “if it is clear a defendant lacks standing, his petition is necessarily frivolous and patently without merit.” Id. at ¶ 12. The court reasoned that, in accordance with previous rulings, standing related to the “substantive virtue” of a post-conviction claim and therefore may be an appropriate consideration for first stage of post-conviction proceedings. Id. at ¶ 19.

Because the court found the trial court’s consideration of appellant’s standing proper, it considered appellant’s standing argument frivolous and patently without merit. Id. at ¶ 23. As a post-conviction petition should be summarily dismissed if it is found to be frivolous or patently without merit, the court found that the trial court had properly dismissed appellant’s petition. Id. at ¶ 29.

The appellant in People v. Gallano, 2019 IL App (1^st) 160570 appealed the trial court’s decision dismissing his post-conviction petition on the grounds that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c) by failing to amend the petition to include notarized affidavits from two potential witnesses. The Appellate Court of Illinois First District ultimately affirmed the judgment of the circuit court.

Gallano was found guilty at a jury trial of first-degree murder and concealment of homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. Id. at ¶ 5. The initial conviction and sentence were reversed and remanded for a new trial based on an error that occurred during jury deliberations. However, on remand, the second jury found Gallano guilty on the same offenses and the trial court imposed the same sentences. That conviction was affirmed by the appellate court. Id. at ¶ 5. Gallano unsuccessfully filed a pro se petition to vacate, which was affirmed on appeal. Gallano then filed a pro se petition for post-conviction relief, which is at issue here.

Gallano argued that the trial court in the second trial erred when it allowed a witness named Pratt to invoke his Fifth Amendment right against self-incrimination. Id. at ¶ 11. Gallano sought to introduce statements from the witness regarding jail conversations with another individual, Moretti, who Gallano alleged admitted to lying to police and had expectations of immunity in exchange for testimony against Gallano. Id. at ¶ 11. The court did not address the issue of proper invocation of Fifth Amendment rights, as the court found instead that the potential testimony would have been inadmissible hearsay at trial and would not have fallen within a recognized exception. Id. at ¶ 12. The court noted that the statement could not corroborate defendant’s self-defense theory, either.

Appellant’s pro se petition for post-conviction relief at issue in this appeal contained two contentions, XI and XII (of the 28 total), relevant to the court’s evaluation. Contention XI was that Gallano did not receive a fair trial “due to excluded evidence of a third party’s guilt.”  Id. at ¶ 16. In support, Gallano restated arguments regarding the admission of testimony from Pratt, contending that the testimony fell under an exception to the hearsay rule and corroborated his self-defense claim.

Contention XII asserted that Gallano was denied his right to a fair trial “when the State intimidated a crucial defense witness to keep him from testifying.” Id. at ¶ 17. Gallano cited an unnotarized affidavit by Moretti corroborating Gallano’s self-defense argument. Galloano argued that the State intentionally persuaded Moretti not to testify by informing the court that the State could charge him with murder. Id. at ¶ 17.

A public defender was appointed to represent Gallano. After multiple continuances, counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c), stating that she had consulted with Gallano and had not amended the post-conviction petition, as it “adequately sets forth the petitioner’s claims of deprivation of his constitutional rights.” Id. at ¶ 18. Shortly thereafter, the State filed a motion to dismiss, raising numerous defenses, including that claims XI and XII were res judicata, as they had been addressed in previous decisions; Moretti’s affidavit did not show that the State intimidated him; and the circuit court could not consider Moretti’s affidavit because it had not been notarized. Id. at ¶ 19. The motion was granted. This appeal followed.

On appeal, Gallano contended that he was denied the reasonable assistance of appointed post-conviction counsel and that his petition should be remanded for further second-stage proceedings with the assistance of new post-conviction counsel. Specifically, Gallano cited counsel’s failure to amend his petition to include notarized affidavits under Rule 651(c). Id. at ¶ 21. The second stage dismissal of appellant’s petition was reviewed de novo.

The court noted that under Rule 651(c), which entitles a petitioner to “reasonable assistance of counsel,” either the record or a certificate filed by counsel must show that counsel (1) consulted with the petitioner to ascertain his contentions of constitutional deprivation, (2) examined the record fo the trial proceedings, and (3) made any amendments to the filed pro se petitions “necessary for an adequate presentation” of the petitioner’s contentions. Of special note, the court acknowledged that “encompassed in the third duty is the duty to remedy procedural defects in a petition, which includes a requirement to remedy an invalid affidavit.” Id. at ¶ 25. Further, the court stated that the filing of a Rule 651(c) certificate by postconviction counsel averring that counsel has complied with the three requirements of Rule 651(c) creates a presumption of compliance with the rule. As such, the burden to overcome the presumption and to demonstrate counsel’s failure to substantially comply with the duties mandated by the rule falls upon the appellant. Id. at ¶ 26.

Gallano contended that he rebutted the presumption established by counsel’s certificate by showing that counsel failed to make two necessary amendments to the petition, under the third duty of Rule 651(c), by failing to properly execute the unnotarized affidavits. Id. at ¶ 28. Rather than arguing that his claims regarding the affidavits had substantive merit, Gallano argued that remand was necessary, regardless of whether the claims had merit, because of counsel’s alleged failure to comply with Rule 651(c). Id. at ¶ 29.

However, because counsel did not fail to file a certificate in this instance, counsel created a rebuttable presumption that she complied with the requirements of the rule. Further, the court noted that the Illinois Supreme Court explained in People v. Greer, 212 Ill. 2d 192, 205 (2004) that the third duty outlined in Rule 651(c) does not require post-conviction counsel to amend a petition to advance a frivolous or spurious claim on a defendant’s behalf. Id. at ¶ 30. Thus, the question of whether the claims had merit was considered “crucial to determining whether counsel acted unreasonably.”

The court found that neither claim presented by Gellano had merit, finding the first issue had already been rejected on its merits and the second claim had been forfeited because it could have been raised earlier and was unsupported by the record. Id. at ¶ 31-34. Ultimately, because the allegations raised by appellant were considered without merit, the court held that counsel did not provide unreasonable assistance when she did not amend the meritless allegation with a notarized affidavit. The court concluded that appellant had not rebutted the presumption of reasonable assistance created by the filing of a Rule 651(c) certificate and and affirmed the judgment of the Circuit Court of Cook County. Id. at ¶ 36.

This case is significant because prior to Gallano, the rule was that the case would get remanded for 651(c) compliance, regardless of the merits of claim. In other words, prejudice was presumed. The court seems to be walking that rule back in this case, which I think makes sense from a judicial economy perspective.

The appellant in People v. Moore, 2019 IL App (3d) 170485, appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition on the grounds that appointed counsel provided unreasonable assistance. The Third District ultimately affirmed the judgment of the trial court.

Moore was found guilty of seven counts of first-degree murder and one count each of home invasion, aggravated criminal sexual assault, robbery, residential burglary, and arson. Appellant was sentenced to death, which was subsequently commuted by Governor George Ryan (in 2003) to a term of natural life imprisonment. Id. at ¶ 3. Thirteen years later, Moore filed a pro se motion for leave to file a successive post-conviction petition.

The petition argued that “(1) the state’s attorney lacked jurisdiction to file the indictment and prosecute defendant; (2) the statutes he is under are unconstitutional; (3) the home invasion and aggravated criminal sexual assault statutes were unconstitutional, and therefore, those charges should not have been put before the jury and violated defendant’s right to due process; and (4) his present sentence is unconstitutional.” A pro se post-conviction petition accompanied the motion for leave. The court appointed counsel to represent Moore. Id. at ¶ 5.

Appointed counsel filed an amended successive post-conviction petition asking the court to “vacate and void the Judgement and Sentence” with no legal arguments and no cause and prejudice argument. Id. at ¶ 6. No separate motion for leave was filed. Following counsel’s appointment, appellant filed several pro se motions that complained of the reasonableness of counsel’s performance. Id. at ¶ 7. Prior to considering any of the arguments contained within the post-conviction petition and subsequent motions, the court denied leave, finding defendant had not satisfied the cause-and-prejudice test. Id. at ¶ 7. Moore appealed.

Moore argued on appeal that appointed counsel provided unreasonable assistance at the leave to file stage of the successive post-conviction proceeding. The court noted that the trial court had not erred in denying Moore leave to file the petition, as in order to obtain leave of the court, Moore had to show cause for his failure to bring the claim in his initial post-conviction petition and prejudice resulting from that failure. Id. at ¶ 10. The court further expanded that appellant had failed to support his claims of cause-and-prejudice with any assertions of fact. The court found the assertions of cause-and-prejudice, made absent any citations to relevant case law, to be insufficient to warrant leave to file a successive post-conviction petition. Id. at ¶ 11.

As to Moore’s assertion of unreasonable assistance of counsel, the court held that Moore was not entitled to counsel at this stage of the proceedings and thus, “cannot complain of the reasonableness of counsel’s assistance as he did not have the right to counsel.” Id. at ¶ 12. The court held that because Moore “had not yet reached the first stage, let alone the second stage [of post-conviction proceedings], the court’s appointment of counsel was both premature and unsupported by the Act.” Id. at ¶ 14. The appellate court affirmed.

The appellant in People v. Borizov, 2019 IL App (2d) 170004 appealed the decision of the trial court dismissing his pro se post-conviction petition, which alleged ineffective assistance of appellate counsel for failing to raise each issue in the motion for a new trial. The Appellate Court of Illinois Second District affirmed the decision of the circuit court.

Borizov was convicted of three counts of first-degree murder and one count of solicitation to commit murder. Following conviction, Borizov filed a motion for new trial, alleging 31 trial errors. One of the alleged errors was that a juror should have been dismissed after informing the court that she went to church with a cousin of one of the victims in the case. Id. at ¶ 3. The trial court held a hearing on the motion and denied it before sentencing Borizov to three consecutive terms of natural life in prison for the murders and a consecutive term of 30 years imprisonment for the solicitation charge.

On direct appeal, appellant contended, through counsel, that a new trial should be granted due to a “pervasive pattern of prosecutorial misconduct.” Id. at ¶ 4. The appellate court held that although the prosecution committed several instances of misconduct, the evidence was not closely balanced, and the prosecution did not engage in a pervasive pattern of prosecutorial misconduct warranting a new trial. Id. at ¶ 4. Borizov then filed a pro se petition under the Post Conviction Hearing Act alleging ineffective assistance of appellate counsel relating to appellate counsel’s alleged failures to consult with trial counsel regarding his decision to raise only one issue at the time of trial and failure to consult with Borizov regarding other issues. Id. at ¶ 5. The trial court summarily dismissed the petition, characterizing the petition as “non-specific, bald and conclusory” and failing to specify prejudice resulting from any alleged error, as required under Strickland. Id. at ¶ 6. This appeal followed.

On appeal, Borizov argued that appellate counsel’s failure to raise the preserved structural error of the juror’s implied bias is a claim of constitutional dimension with an arguable basis in law and fact. Id. at ¶ 9. The court noted that the Strickland test applies to claims of ineffective assistance of appellate counsel and thus applies in this instance. Id. at ¶ 13. As such, the court held that Borizov must allege facts demonstrating that the alleged failure was objectively unreasonable and prejudiced the defendant. Id. at ¶ 14. Moreover, the court noted appellate counsel is not required to brief every conceivable issue on appeal, and it is not incompetence for counsel to refrain from raising issues that, in his or her judgement, are without merit.

The Appellate Court noted that counsel did in fact raise issues regarding prosecutorial misconduct, arguing a pervasive pattern of prosecutorial misconduct as a ground for a new trial. Moreover, counsel specifically raised issues about the introduction of irrelevant and prejudicial evidence. Id. at ¶ 17-20. As a result, the court found appellants claims that counsel raised none of the issues in his motion to be patently false. Additionally, the court noted the impossibility of gauging the precise basis for the claim that counsel’s performance fell below an objective standard of reasonableness, meaning that the petition lacked grounds for showing sufficient prejudice. The court disagreed with Borizov that he had raised the gist of a constitutional claim. Id. at ¶ 21. The court further noted that, even if they could, the claim would still fail because of the aforementioned requirements for counsel under Strickland.

On the specific issue related to the potentially biased juror, the court held “To find that the trial court’s decision here to allow Juror 189 to remain impaneled amounts to structural error would be fanciful at best. The record reveals that the trial court went to great lengths to ensure that Juror 189 understood her role as an impartial juror. Further, her relationship to a cousin of the victims is insufficient to show that defendant suffered any prejudice, as all the record reflects is that Juror 189 and the cousin attended the same church.” Id. at ¶ 32.

Ultimately, the Second District held that Borizov’s petition lacked an arguable basis in law or fact, as it was completely contradicted by the record. As such, the court affirmed the judgement of the Circuit Court of DuPage County.