Counsel did not provide unreasonable assistance of counsel where claims were meritless

The appellant in People v. Gallano, 2019 IL App (1st) 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.

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