Appellate Court reverses order denying post-conviction petition because pro se petitioner was shackled during second-stage proceedings

The appellant in People v. Hawkins, 2019 IL App (3d) 160682, appealed the trial court’s order dismissing his pro se post-conviction petition at the second stage on the grounds that the court erred by ordering that he be shackled without stating the reasons for doing so and that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). The Appellate Court of Illinois Third District ultimately vacated the circuit court’s order and remanded for new second-stage proceedings, beginning with the appointment of new post-conviction counsel.

Anthony Hawkins was convicted of first-degree murder and aggravated unlawful use of a weapon (AUUW) and sentenced to terms of 45 years’ and 2 years’ imprisonment, respectively. Id. at ¶ 4. On direct appeal, both convictions and sentences were affirmed. Shortly thereafter, Hawkins filed a pro se post-conviction petition alleging that appellate counsel had been ineffective for failing to argue on direct appeal that the circuit court had erred by denying his motion to suppress. Hawkins also asserted that his conviction for AUUW was unconstitutional. Id. at ¶ 5.

The court appointed post-conviction counsel and advanced the petition to the second stage of postconviction proceedings. Counsel filed a petition for relief from judgment, alleging the AUUW conviction should be vacated under People v. Aguilar, 2013 IL 112116. Id. at ¶ 6. The court granted the petition and vacated the conviction. Following a conclusion that no nonfrivolous arguments remained to be made on appellant’s behalf, counsel filed a motion to withdraw. The circuit court found that counsel had complied with the requirements of Rule 651(c) and granted the motion. Id. at ¶ 7.

The State then subsequently filed a motion to dismiss the postconviction petition. Hawkins filed a response, pro se, and, at the hearing, repeatedly requested that he be unshackled so that he could maneuver through his notes and other paperwork. The court refused all requests and said, at one point, “I’m not removing them… do the best you can do.” Id. at ¶ 8. The record did not provide any rationale for keeping Hawkins shackled nor did it contain any notation of the factors considered by the court in denying Hawkins’ requests to be unshackled. The court granted the State’s motion to dismiss. This appeal followed.

On appeal, Hawkins raised two arguments. First, he argued that the court’s decision to keep him shackled during the second-stage hearing, absent any articulated justification by the court on the record, requires a new second-stage hearing. Further, he argued that he was entitled to a new second-stage hearing due to post-conviction counsel’s failure to file a Rule 651(c) certificate before withdrawing from the case. Id. at ¶ 10.

The court acknowledged that it is “well accepted” that in-court shackling has the potential to restrict an individual’s ability to assist defense counsel, and a trial judge’s failure to articulate any basis for the shackling constitutes a violation of due process. Id. at ¶ 11. The court looked to People v. Rippatoe for similar instruction on pro se proceedings and found that the aforementioned requirements from Boose applied similarly to pro se cases.

The State acknowledged that the shackling documented in this record was “inappropriate” under the Boose standard. Id. at ¶ 12. The point of dispute between the two parties focused on the proper remedy for the Boose violation. The State argued that the court should remand the matter for a retrospective hearing to determine if shackling was proper, while Hawkins argued for the vacation of the order dismissing his post-conviction petition and remand for a new second-stage hearing. Id. at ¶ 13. The appellate court agreed with Hawkins that a retrospective hearing would be improper, and, due to the trial court’s silence on its precise rationale for shackling, vacated the order dismissing the post-conviction petition and remanded for new second stage proceedings. Id. at ¶ 15.

The appellate court then turned to the second issue raised on appeal: that post-conviction counsel had not filed a valid Rule 651(c) certificate before being allowed to withdraw from second stage proceedings. All parties agreed that no valid certificate was filed. The appellate court, similarly, instituted the same remedy for the first issue and remanded for new second stage proceedings. Id. at ¶ 16. The court provided instruction to the trial court to begin the second stage post-conviction proceedings anew with the re-appointment of post-conviction counsel, allowing counsel to review the entire record in compliance with Rule 651(c). Id. at ¶ 18.

The Third District vacated the judgement of the Circuit Court of Will County and remanded with new directions.

Appellate Court vacates petitioner’s 70-year sentence as being a de facto life sentence, even though his sentence was day-for-day eligible

The appellant in People v. Thornton, 2019 IL App (1st) 170677, appealed the trial court’s decision dismissing his pro se petition for  post-conviction relief on grounds that he stated an arguable claim that his 70-year sentence, for a crime he committed as a juvenile, is an unconstitutional de facto life sentence and remand is necessary as the circuit court failed to properly admonish him, pursuant to People v. Shellstrom, 216 Ill. 2d 45, before re-characterizing his petition. The First District ultimately vacated his sentence and remanded the matter for a new sentencing hearing.

Altai Thornton entered an open guilty plea to four counts of first degree murder and one count of aggravated kidnapping, in exchange for an agreed sentencing cap of 60 years’ imprisonment. Id. at ¶ 2. At the sentencing hearing, the State presented evidence in aggravation of the Thornton’s involvement in a subsequent shooting and a victim impact statement. Id. at ¶ 4. In allocution, Thornton apologized, accepted responsibility for his actions, and asked for mercy. The circuit court noted that Thorton was “starting down the wrong path at an early, early age,” merged the aggravated the kidnapping count into the first degree murder count based on felony kidnapping, and sentenced him to four concurrent extended terms of 70 years DOC.

On direct appeal, Thornton’s sentence was reduced to concurrent terms of 60 years DOC. Id. at ¶ 5-6. The Illinois Supreme Court then instructed the court to vacate its  order and reconsider its judgment in light of the decision in People v. Jackson, 199 Ill. 2d 286. On remand, Thornton argued that the circuit court erred by entering convictions and imposing sentences on four counts of first degree murder when there was only one victim  and that and his 70-year sentence violated Apprendi v. New Jersey, 530 US 466 (2000). Id. at ¶ 7.

Thornton then filed a pro se “Petition to Vacate Judgement”. In the petition, Thornton alleged that his indictment was void for failing to allege brutal and heinous conduct; his 70-year extended term sentence violated Apprendi; the extended-term sentencing statue, along with several others, were unconstitutional because they did not require the State to charge brutal and heinous conduct; the concurrent and consecutive sentencing statutes violated Apprendi and are void ab initio; and, both his trial and appellate counsel were ineffective.

In response, the State filed a motion to dismiss the petition. Id. at ¶ 8. Shortly thereafter, Thornton filed a pro se Motion to Recharacterize the Petition as a Post-Conviction Petition under the Act. The circuit court granted the motion. Id. at ¶ 9. Thornton then filed a motion for leave of court to file an amended post-conviction petition, in which he sought to add additional claims. Thornton, simultaneously, filed an amended post-conviction petition containing all of the claims raised initially, as well as two new allegations: 1) his extended term sentence violated his due process rights because it was based on facts not alleged in the indictment, and 2) his sentencing hearing violated the eighth amendment of the United States Constitution, pursuant to Miller v. Alabama, because the circuit court failed to properly consider his youth before determining his sentence. Id. at ¶ 10. The circuit court summarily dismissed the pro se petition as frivolous and patently without merit. Id. at ¶ 11. This appeal followed.

On appeal, Thornton argued that the circuit court erred in summarily dismissing his pro se petition because he raised an arguable claim that his 70-year sentence, imposed for a crime he committed while he was a juvenile, violated the eighth amendment. In the court’s de novo review of Thornton’s claims, the court held that, pursuant to rulings in Miller and People v. Buffer, 2019 IL 122327, a sentence exceeding 40 years was a de facto life sentence requiring the court to consider the defendant’s youth and attendant circumstances. Id. at ¶ 16.

Thornton had argued that he had pled an arguable claim in his petition, as the record reflected that the sentencing court did not take into consideration Thornton’s youthful characteristics. The State responded by arguing that Thornton would likely only be required to serve 35 years of his 70 year sentence (because of day-for-day credit), and thus the court should consider the sentence as such. Id. at ¶ 18. In response, appellant argued that his sentence was a de facto life sentence because: 1) there is no guarantee of day-for-day credit; and 2) even if he did receive such credit, it remains highly unlikely he will outlive his 35 year sentence, given the life expectancy of incarcerated black men. Id. at ¶ 19.

The court concluded that regardless of appellant’s eligibility for day-for-day credit, his extended term of 70 years’ imprisonment is a de facto life sentence that requires a sentencing court to consider his youth and attendant characteristics. Id. at ¶ 22. Further, the court concluded that the circuit court failed to consider such characteristics during the imposition of this sentence and thus, the sentence violates the eighth amendment. Id. at ¶ 22-26.

The sentence was vacated as unconstitutional and remanded for a new sentencing hearing.

Appellate Court holds that second-stage dismissal was proper where claim had already been litigated before trial

The appellant in People v. Johnson, 2019 IL App (1st) 162999, appealed the trial court’s order dismissing his petition for post-conviction relief at the second stage, where Johnson argued that his trial counsel and appellate counsel were ineffective. The  First District ultimately affirmed the decision of the circuit court, finding that the issues raised by Johnson had been litigated prior to trial and, thus, neither his trial counsel nor his appellate counsel could be ineffective for failing to raise it.

Michael Johnson was convicted of acting as a hit man for a drug dealer, Marc Norfleet, and killing a police informant, Adam Schultz. Id. at ¶ 8. Prior to trial, trial counsel filed a motion to suppress the Johnson’s statements, claiming that they were obtained after Johnson’s elected to remain silent and requested to consult with an attorney, in violation of his fifth and fourteenth amendment rights. Id. at ¶ 10. At the hearing on this motion, detectives testified that the entire time they were with Johnson he had never asked for an attorney, never indicated that he wanted to remain silent, and never refused to speak with them. Id. at ¶ 15, 21.

The ASA who participated in the interviewed statement testified that the interview was conducted to obtain an arrest warrant for Marc Norfleet based on an accountability theory, and that once Johnson was confronted with an article concerning Norfleet’s arrest, he then implicated himself. Id. at ¶ 17. Johnson then chose a videotaped statement to memorialize his statements. The ASA also testified to reviewing Johnson’s Miranda rights with him, “word for word,” after they’d been read to him by detectives. Id. at ¶ 19. Johnson disputed the testimony provided by the ASA and detectives, stating he was only advised of his Miranda rights by the ASA (not the detectives) and that his videotaped statement was involuntary. Id. at ¶ 33. Johnson did, however, testify that he read and signed a form stating he was consenting to the videotaping, did not complain of mistreatment by police, and did not ask for an attorney in the videotaped statement. Id. at ¶ 34.

In arguments on the motion, Johnson argued that his fear of the death penalty, as corroborated by both the ASA and the detectives, in addition to threats and promises regarding the death penalty, overbore his free will, rendering his statement involuntary. Id. at ¶ 35. The State rebutted each claim in the motion individually. The trial court denied the suppression motion based on the credibility of the witnesses. Id. at ¶ 36.

Despite raising numerous claims in his initial pro se post-conviction petition and supplemental petition filed by counsel, appellant raises only one claim on direct appeal: that counsel failed to “clearly articulate” an Edwards claim. The petition stated that Edwards requires that once a suspect invokes his fifth amendment right to counsel, all custodial interrogation must cease, and it may resume only if counsel has been made available to the defendant or the defendant initiates communication. Id. at ¶ 38. The trial court dismissed the petition, finding that trial counsel conducted a full suppression hearing during which he ably advocated on behalf of his client by arguing vehemently that he was coerced, not informed of his Miranda rights, and interrogated after electing to remain silent. Id. at ¶ 39. This appeal followed.

On appeal, Johnson argued that the trial court erred by dismissing his petition at the second stage of proceedings. The court’s review of the trial court’s dismissal of the petition was conducted de novo.

Johnson raised two ineffective assistance of counsel claims, relating to both trial and appellate counsel’s performance. To determine the effectiveness of counsel’s assistance, the court used the Strickland test, which requires that a defendant prove both (1) that his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness and (2) that, absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id. at ¶ 53. This standard applies equally to both claims. The court observed that an ineffective assistance of counsel claim can be disposed of if a petitioner cannot satisfy both prongs of the Strickland test. Id. at ¶ 56.

To establish the first prong, appellant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial sound strategy. Id. at ¶ 58. On the Edwards issue, the court noted that the trial court had previously adjudicated the matter and decided the issue, based on the credibility of the witnesses, in the State’s favor. Id. at ¶ 64. Further, the appellate court held that failing to specifically cite Edwards in the pretrial motion is not dispositive, particularly because counsel had made sure to address the claim in suppression testimony. Counsel’s decision not to respond to a very specific case cited by the State is considered a matter of trial strategy, immune to an ineffectiveness claim. Ultimately, the court concluded that “we cannot find trial counsel ineffective for failing to raise a claim that was, in fact, raised, and we cannot find appellate counsel ineffective for the same reason.” Id. at ¶ 65.

The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

Second District holds that “Reasonableness” standard governs post-conviction counsel’s performance at third stage

The appellant in People v. Pabello, 2019 IL App (2d) 170867, appealed the trial court’s order deny his post-conviction petition following a third-stage hearing. The Second District ultimately affirmed the judgment of the circuit court, finding that post-conviction counsel provided reasonable assistance.

Pabello was convicted of two counts of predatory criminal sexual assault of a child in Lake County. Id. at ¶ 3. On appeal, this court affirmed. Pabello then filed a pro se post-conviction petition, which advanced to the second stage of proceedings, resulting in the appointment of post-conviction counsel. Counsel amended the petition pursuant to Illinois Supreme Court Rule 651(c) and filed a supplemental petition, alleging that trial counsel was ineffective for failing to file a motion to suppress Pabello’s statements to the police. Id. at ¶ 4-6. Counsel asserted that Pabello’s Miranda waiver was invalid because he did not understand English and lacked relevant education (having only attended school through 6th grade). The State agreed to proceed to a third-stage hearing.

During the third stage of proceedings, the State established that Pabello was able to learn “a little bit of English” while working at a gas station. Despite the presence of an interpreter, trial counsel testified that the interpreter was rarely, if ever, used. The trial court concluded that despite his lack of education, there was no language barrier and the “totality of the circumstances demonstrated that [Pabello] knowingly and intelligently waived his Miranda rights.” As such, the court found appellant had failed to demonstrate ineffective assistance of trial counsel for failing to file a motion to suppress. Id. at ¶ 12-16. This appeal followed.

On appeal, Pabello argued that post-conviction counsel failed to comply with Rule 651(c) by failing to present sufficient evidence that his waiver of his Miranda rights was invalid in light of his limited education. Id. at ¶ 18. Under Rule 651(c), postconviction counsel has three duties: 1) show the he consulted with the petitioner to ascertain his contentions of constitutional violations, 2) show that he examined the trial record, and 3) show that he made any amendments to the pro se petition necessary to adequately present the petitioner’s claims. Id. at ¶ 23.

Compliance with Rule 651(c) can be demonstrated via a filed certificate or the trial record. However, the court ruled that Rule 651(c) does not govern counsel’s performance at the third stage of proceedings. Id. at ¶ 26. The court explained further that “it is undisputed that counsel here complied with Rule 651(c) at the second stage when he consulted with [Pabello], examined the trial record, and amended the pro se petition as necessary to adequately present defendant’s claims.” Id. at ¶ 28. The court found all cases cited by Pabello suggesting the rule’s application to third-stage proceedings to be unhelpful to Pabello and distinguishable from his case. Id. at ¶ 30-34.

As such, the court evaluated counsel’s performance using the overarching reasonableness standard generally applicable to post-conviction proceedings. Id. at ¶ 35. The court relied upon People v. Hotwagner, 2015 IL App (5th) 130525, for instruction, and held that because trial counsel and post-conviction counsel serve different roles, the reasonable level of assistance required under the Act is not co-extensive with the level of assistance required under Strickland v. Washington. However, the court held that the Strickland test is an essential standard for comparison, and if “postconviction counsel’s assistance cannot be deemed ineffective under Strickland, it cannot be deemed unreasonable under the Act.” Id. at ¶ 36. Thus, the court reviewed counsel’s performance under the Strickland standard and determined that if it passes the Strickland standard, it would meet the lesser standard under Hotwanger. Id. at ¶ 37.

Under Strickland, to establish prejudice for counsel’s failure to file a motion to suppress, appellant must demonstrate a reasonable probability that (1) the motion would have been granted and (2) the outcome of the trial would have been different had the evidence been suppressed. Id. at ¶ 38. The court summarily rejected all arguments related to appellant’s lack of education and understanding of English, arguing that the record (including the interrogation video) left “no doubt that defendant understood, and knowingly and intelligently waived, his Miranda rights.” Id. at ¶ 43. As such, the court held that even had counsel argued those factors more emphatically, it would not likely have resulted in a finding that appellant did not knowingly and intelligently waived his Miranda rights. Thus, any failure by post-conviction counsel in that regard did not prejudice Pabello. Accordingly, counsel’s performance was reasonable. Id. at ¶ 44.

For those reasons, the Appellate Court of Illinois Second District affirmed the judgement of the Circuit Court of Lake County.