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.



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