The defendant in People v. Parada, 2019 IL App (1^st) 161987, appealed the decision of the trial court dismissing his petition for relief under the Post-Conviction Hearing Act at the second stage of proceedings, arguing on appeal that he made a substantial showing that he was denied his right to effective assistance of appellate counsel where appellate counsel failed to file a docketing statement, a record on appeal, and an appellate brief, resulting in the dismissal of the appeal. Ultimately, because the appeal was pending while appellant was a fugitive, and the appellate court dismissed the appeal through no fault of counsel, the court affirmed the judgment of the circuit court.

Hector Parada was arrested, charged, and convicted in absentia of possession with intent to deliver more than 900 grams of cocaine and sentenced to 60 years’ imprisonment. Id. at ¶ 3-5. Shortly thereafter, defense counsel filed a notice of appeal and indicated in the notice that defendant remained a fugitive. Id. at ¶ 6. The reviewing court dismissed the appeal eight months following the filing of the notice. In its decision, the court stated, “as no docketing statement, no record on appeal, and no brief have been filed, the Appellant’s appeal is dismissed for want of prosecution.” Id. at ¶ 6.

Parada was eventually extradited to Illinois, where he filed a motion to reinstate his appeal; the reviewing court denied the motion and Parada did not appeal that ruling. Id. at ¶ 7. Parada then filed a pro se post-conviction petition alleging that counsel was ineffective for abandoning the appeal, claiming, among other things, that he had instructed counsel not to abandon the appeal.

The petition was advanced to the second stage of proceedings, where a public defender was appointed to represent Parada. While the petition was pending, Parada unsuccessfully filed a motion for a supervisory order with the Illinois Supreme Court requesting it direct the appellate court to reinstate his appeal. Appointed counsel then filed an amended postconviction petition with additional exhibits. The amended petition maintained that appellate counsel’s failure to avoid a dismissal for want of prosecution fell below the reasonable standard of competence of counsel and that prejudice may be presumed in this instance. Appellant attested, in an affidavit, that counsel had agreed to represent him during his appeal, and he believed counsel was doing so. Id. at ¶ 10. The State filed a motion to dismiss, arguing that since petitioner was a fugitive at the time his appeal was dismissed, he forfeited all of his claims. The circuit court dismissed the petition. This appeal followed.

On appeal, Parada argued that his petition demonstrated a substantial showing of a constitutional violation where his appellate counsel was ineffective for failing to pursue the appeal. Id. at ¶ 14. The court conducted its review de novo.

The appellate court held that while “there is no question that appellate counsel failed to perfect the appeal,” “petitioner was a fugitive at the time his appeal was filed and… it is well established that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Id. at ¶ 24. The rule, known as the “fugitive dismissal rule,” was first applied by the Supreme Court in Smith v. United States, 94 U.S. 97 (1876). The court has since held that the rule applies to both federal and state courts. Id. at ¶ 24.

As such, the court held that in order to establish prejudice, petitioner must make a substantial showing that counsel’s failure to perfect the appeal actually caused the forfeiture of the appeal. Id. at ¶ 26. The appellate court found that Parada failed to make such a substantial showing “where his voluntary status as a fugitive caused the dismissal of the appeal.” Id. at ¶ 26. Further, the court held that the denial of Parada’s motion to reinstate his appeal (as permitted by the court) was within the reviewing court’s discretion and had nothing to do with appellate counsel’s failure to file a docketing statement, record, and brief on behalf of defendant. Id. at ¶ 26.

The court noted that it viewed the trial court’s reference to the failings of appellate counsel not as indication of its reasoning for dismissal, but rather as an “additional reason for the court to exercise its discretion to dismiss the appeal” under the fugitive dismissal rule. Id. at ¶ 27. The court reiterated that the appeal was dismissed absent prejudice, and thus, did not foreclose him from the opportunity for appellate review. Further, the court stated that Parada’s fugitive status was entirely within his own control, and had he promptly availed himself of the court, it is possible that the motion to reinstate the appeal would have been granted. Id. at ¶ 31.

Ultimately, the court concluded that the trial court did not err in dismissing Parada’s post-conviction petition at the second stage because Parada could not demonstrate that appellate counsel’s alleged ineffective assistance was the cause of the dismissal of his appeal (and thus he could not make the requisite substantial showing of a constitutional violation). Id. at ¶ 34.

The appellant in People v. Johnson, 2019 IL App (2d) 170646, appealed the decision of the trial court denying his motion for leave to file a successive post-conviction petition. The Second District ultimately affirmed the judgment of the trial court.

Derron Johnson was found guilty of first degree murder, based on the theory that he was accountable for the conduct of another individual, Andrew Proctor, who committed the acts resulting in the victim’s death. Johnson was subsequently sentenced to 27 years’ imprisonment. On direct appeal, the appellate court affirmed the conviction and sentence. Id. at ¶ 3.

Johnson filed a pro se petition for post-conviction relief, followed by an amended petition six years later. The court dismissed the petition and the appellate court affirmed the dismissal. Johnson then filed a motion for leave to file a successive postconviction petition. Johnson argued that, considering his age at the time of the offense and his level of participation, his 27-year sentence violated the eighth amendment’s ban on cruel and unusual punishment and the Illinois Constitution’s proportionate penalties clause. Id. at ¶ 4.

In support, Johnson cited Miller v. Alabama, 567 U.S. 460 (2012), which held that sentencing a juvenile offender to mandatory life imprisonment without parole violated the eighth amendment. Johnson also raised an ineffective assistance of counsel claim for counsel’s failure to raise this issue in his first post-conviction petition. The trial court denied the motion for leave and determined that Johnson failed to show cause for not raising his Miller claim earlier when his amended petition was filed. The court also determined that Johnson failed to show prejudice, as Miller did not apply to his 27-year sentence, which was not a de facto life sentence. Id. at ¶ 5. This appeal followed.

On appeal, Johnson raised a new argument – that the truth-in-sentencing statute requiring him to serve his entire sentence without the possibility of parole violated the eighth amendment’s ban on cruel and unusual punishment and the Illinois Constitution’s proportionate penalties clause. Id. at ¶ 7. Johnson argued that this provision of the Code was unconstitutional both facially and as applied. As to cause-and-prejudice, Johnson argued that he established cause because the new claim is a novel claim that was not available to him at the time of original filing and that he demonstrated prejudice because Miller applies retroactively.

The State argued, in response, that Johnson waived his challenge to the constitutionality of his sentence because, at sentencing, trial counsel acknowledged the legislatively imposed sentencing requirements and stated that he was “not arguing about [that].” Id. at ¶ 9. The State also asserted that the Johnson forfeited his argument by not raising the constitutionality of the truth-in-sentencing statute in his motion for leave to file a successive post-conviction petition. The court found these arguments presented by the state to be without merit. Id. at ¶ 9. The court declined to find the issues waived or forfeited and addressed the merits of the claims on appeal.

The Appellate Court found that courts have held that the truth-in-sentencing statute can be constitutionally applied under some circumstances, and thus, it was not facially unconstitutional. The as-applied challenge is premised on the decision in Miller, in which the Supreme Court held that, for those convicted of homicide, the eighth amendment prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. Id. at ¶ 11.

The Johnson court noted that numerous courts have rejected similar arguments as Johnson’s. Id. at ¶ 12. The court held “the 27-year sentence was not a de facto life sentence” and does not fall under the protections of Miller. Id. at ¶ 13. Further, the court found that, in accordance with Miller, the trial court had properly considered age, circumstances of family life growing up, appellant’s lack of criminal history, and Johnson’s culpability at sentencing. Id. at ¶ 14. As such, even if the court had held that Miller were applicable to Johnson’s case, no violation of Miller occurred.

The appellant in People v. Coffey, 2020 IL App (3d) 160427, appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition, arguing on appeal that the trial court erred in permitting the State to participate in the proceedings on the motion to reconsider the denial of his motion for leave. The Third District ultimately vacated the decision of the circuit court and remanded for new proceedings for the trial court to consider the motion for leave without participation from the State.

Coffey was convicted at a bench trial of first-degree murder and sentenced to 60 years’ imprisonment. On direct appeal, the appellate court affirmed the conviction and sentence. Id. at ¶ 3. Coffey then filed a pro se post-conviction petition, which he subsequently amended several times. The petition advanced to the second stage of post-conviction proceedings, where the State filed, and the court granted, a motion to dismiss. The court then denied Coffey’s requests for leave to file successive post-conviction petitions on three occasions. Id. at ¶ 4. In his fourth attempt, which is the subject of this appeal, Coffey raised several claims relating to the court’s failure to order a fitness examination prior to his trial. Coffey claimed he was mentally ill and not taking his medication, which created a bona fide doubt as to his fitness. Id. at ¶ 5. The trial court determined that Coffey had failed to satisfy the cause-and-prejudice test and denied the motion for leave to file a successive petition. Id. at ¶ 6.

Coffey then filed a motion to reconsider. A hearing was held on the motion reconsider, at which the State to asked the court to deny the motion to reconsider. Id. at ¶ 9. The State argued there that Coffey did not raise any new issues and had not argued that there was a mistake of fact in the court’s earlier ruling on the motion for leave to file a successive petition. Shortly thereafter, the court denied the motion to reconsider. Id. at ¶ 10.

On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent appellant. OSAD filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), claiming that there were no meritorious issues to be raised on appeal. Id. at ¶ 11. The appellate court denied the motion to withdraw and ordered the parties to brief the issue of whether the circuit court erred in allowing the State to participate in the proceedings on appellant’s motion to reconsider and the applicability, if any, of the holding in People v. Bailey, 2017 IL 121450, People v. Munson, 2018 IL App (3d) 150544, and People v. Baller, 2018 IL App (3d) 160165, to this case. Id. at ¶ 12.

The Appellate Court ultimately accepted the argument made by Coffey that “the circuit court erred in allowing the State to participate in the proceedings on the motion to reconsider the denial of [his] motion for leave to file a fourth successive postconviction petition.” Id. at ¶ 14. In support, the court looked to the Illinois Supreme Court’s decision in Bailey, 2017 IL 121450, which held that it was “premature and improper for the State to provide input to the court before the court has granted a defendant’s motion for leave to file a successive petition.” Id. at ¶ 16. While in this case the State did not participate in the initial proceedings on the motion for leave, the State did participate at the hearing on Coffey’s motion to reconsider. The Appellate Court held that Bailey applied with equal force to the motion to reconsider hearing. Id. at ¶ 18. As such, the court held the State’s participation was premature and improper.

In considering the appropriate remedy for the State’s improper participation, the court acknowledged, pursuant to Bailey, that the court may independently review the circuit court’s cause-and-prejudice determination, however, it chose to remand for an independent determination by the circuit court. Id. at ¶ 27. As a result, the judgment of the trial court was vacated, and the cause was remanded for new proceedings on the motion for leave to file a successive post-conviction petition without participation from the State. Id. at ¶ 30.

The appellant in People v. Gunn, 2019 IL App (4^th) 170653, appealed the trial court’s order dismissing his amended post-conviction petition at the second-stage of proceedings, arguing that the petition made a substantial showing of a constitutional violation. Ultimately, the Appellate Court of Illinois Fourth District reversed the decision of the circuit court and remanded for a third-stage evidentiary hearing.

Kendall Gunn was charged by indictment with three counts of first-degree murder for causing the death of Shane Howard. At trial, both the State and defense presented evidence and elicited witness testimony indicating that Gunn may have acted in self-defense, or imperfect self-defense, when taking the life of Shane Howard. Id. at ¶ 2-11. However, in closing, the State published to the jury portions of the audio and video recordings of Gunn’s police interview and argued that Gunn had no reasonable fear for his own life and thus could not have acted in self-defense. Id. at ¶ 12. The State also noted Gunn’s dishonesty during the interview regarding where he discarded the knife.

Following closing arguments, the court instructed the jury that (1) “neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on evidence should be disregarded” and (2) “the fact that the defendant did not testify must not be considered in any way in arriving at a verdict.” Id. at ¶ 13. Following deliberations, the jury found Gunn guilt of first-degree murder, resulting in a 35-year sentence from the trial court. Id. at ¶ 14. On direct appeal, the appellate court affirmed Gunn’s conviction and sentence.

Gunn then filed a pro se post-conviction petition, which advanced to the second stage of proceedings. Appointed post-conviction counsel supplemented the petition, and the State filed a motion to dismiss, which was eventually granted by the trial court following a hearing. Id. at ¶ 16. Shortly thereafter, Gunn appealed the dismissal of the petition, arguing on appeal that he was denied reasonable assistance of post-conviction counsel. The appellate court reversed and remanded for new second-stage proceedings. Id. at ¶ 17.

Newly appointed post-conviction counsel filed an amended post-conviction petition on Gunn’s behalf, which argued, in part, that trial counsel was ineffective for “objecting to the reading of the fourth Zehr principle on the basis that [Gunn] would testify and for telling the jurors the petitioner was going to tell them certain things throughout the trial, when in fact he did not tell them anything because he never testified.” Id. at ¶ 18. The petition alleged that counsel’s failures met both prongs of the Strickland test and further alleged that appellate counsel was ineffective for failing to raise these claims on appeal from the conviction and sentence. Id. at ¶ 18.

Post-conviction counsel attached an affidavit from Gunn, which averred, in part, that Gunn fully intended to testify at trial, up until the last day of the trial, when counsel instructed him it would not be necessary, as she believed they’d presented enough evidence to avoid a conviction. The State filed a motion to dismiss in response, arguing that trial counsel’s advice not to testify should be regarded as a shift in trial strategy and did not rise to the level of unreasonableness and that the petition establish prejudice. Id. at ¶ 20. The trial court dismissed the petition, finding that Gunn failed to make a substantial showing of a constitutional violation. This appeal followed.

On appeal, Gunn argued that the appellate court should reverse the trial court’s judgment because his amended post-conviction petition made a substantial showing of a constitutional violation with the ineffective assistance of counsel claims presented. Gunn requested that the matter be remanded for a third-stage evidentiary hearing concerning the factual question of whether counsel’s actions constituted a valid trial strategy. Id. at ¶ 24.

The appellate court noted that “to determine whether the failure to provide promised testimony amounts to ineffective assistance of counsel, we must look to the factual circumstances of a given case.” In that regard, the court acknowledged that the record reflected both Gunn and his counsel anticipating providing testimony up until the last day of the trial. The court held that trial counsel, therefore, waived Gunn’s right to have the trial court ask prospective jurors whether they understood and accepted the fourth Zehr principle and promised the jury that Gunn would testify and explain why he lied to the police, that he wasn’t in a gang, and that he stabbed Howard in self-defense. Id. at ¶ 30. The court noted that this decision could not be regarded as a situation where a defendant who expressed a pre-trial desire to testify simply changed his mind, but, instead, is a situation where trial counsel changed strategy mid-trial and advised Gunn that his testimony was not necessary, which Gunn relied on when electing not to testify. Id. at ¶ 31.

The court rejected both the State’s argument that trial counsel’s decision to change course was a result of sound trial strategy and its assertion that the decision was not objectively unreasonable (based on counsel’s own stated rationale that the jury had heard “enough” not to convict). Id. at ¶ 33-34. The court held that but for an unforeseeable event, the failure to present promised testimony may be unreasonable, for “little is more damaging than to fail to produce important evidence that had been promised in opening.” Id. at ¶ 34. Counsel failed to provide any explanation at trial to suggest that an unforeseeable event occurred to justify the change in strategy, and thus the court held that Gunn made a substantial showing that counsel’s decision was constitutionally inadequate.

On the prejudice prong of Strickland, the court rejected the State’s arguments that Gunn’s testimony would have been entirely cumulative and that jury instructions cured any prejudice suffered by Gunn. Id. at ¶ 35-36. The court concluded that “given the specific promises made by counsel and the fact the evidence of guilt was not overwhelming, we find [appellant] made a substantial showing he was prejudiced by counsel’s decision to change course and advise him his testimony was not necessary.” Id. at ¶ 37.

The Appellate Court of Illinois Fourth District reversed the decision of the Circuit Court of McLean County and remanded for a third-stage evidentiary hearing.