First District reverses dismissal of post-conviction petition based on Brady violation allegation

In People v. Morales, 2019 IL App (1st) 160225, the First District Appellate Court reviewed and ultimately reversed the decision of the Circuit Court of Cook County dismissing Morales’ post-conviction petition at the first stage of proceedings, and remanded for second-stage proceedings consistent with the Post-Conviction Hearing Act.

Appellant Ismael Morales was convicted at trial, along with five codefendants, of the 2007 robbery and murder of Francisco Reyes. The decisions in Morales’ (and codefendants’) case have been the subject of numerous appeals before the court, a number of which have resulted in remands for new trial. The subject of the appeal before the First District concerning Ismael Morales was that of the first-stage dismissal of his post-conviction petition. The petition alleged that the State, at trial, violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose the existence of an agreement between the State and its main witness, Francisco Garcia, for the State’s assistance in the witness’ immigration matters in exchange for his testimony. Id. at ¶ 2. Of secondary concern for the court was the claim of actual innocence based on the affidavit of Victor Redding, who claimed to have witnessed the attack on Reyes, who maintained that Morales was not one of the participants. Id. at ¶ 2. Redding’s affidavit directly contradicted testimony by Garcia and his wife, Sylvia Ortiz, at trial, who claimed to have seen Morales present during the attack and saw him strike Reyes with a rock. Id at ¶ 7-8.

Following conviction at trial, in November 2015, Morales filed a post-conviction petition, claiming a violation of Brady v. Maryland for the State’s failure to disclose their agreement with Garcia related to the exchange of testimony at trial for immigration matter assistance. Id. at ¶ 9. Morales produced a letter from the State’s Attorney’s office to INS (Immigration and Nationality Service) and a transcribed voicemail from Garcia to the State’s Attorney’s office in support of his petition. Additionally, the petition contained a claim of actual innocence, supported by an affidavit from Victor Redding, a witness to the robbery and murder of Reyes who asserted he was “sure that Mr. Ismael Morales was not involved.” Id. at ¶ 12. The circuit court summarily dismissed the petition, claiming that the Brady violation was frivolous because the jury “knew that these people were in the country illegally.” Id. at ¶ 13. The court found the claim of actual innocence to be “not in any way compelling” and lacking credibility. Id. at ¶ 13.

The Appellate Court’s analysis of Morales’ petition (and the court’s decision to dismiss it) focused exclusively on the evaluation criteria set out by the Post-Conviction Hearing Act for first-stage proceedings. As noted by the Appellate Court, under the Act, petitions may only be dismissed at the first stage of proceedings if they have “no arguable basis either in law or fact” and are based on an “indisputably meritless legal theory or a fanciful factual allegation.” Id. at ¶ 18. In the Court’s de novo review of the first-stage dismissal, they took the allegations in the petition as true and construed them liberally in favor of the petitioner. Id. at ¶ 18.

The United States Supreme Court held in Brady that due process requires the State to disclose “evidence favorable to the accused and material to guilt or punishment.” Id. at ¶ 20. The Appellate Court noted when a defendant alleges a violation of due process based on a violation of Brady, they must demonstrate three things: (i) the allegedly withheld evidence was favorable as either exculpatory or impeachment evidence, (ii) the prosecutor either willfully or inadvertently suppressed evidence, and (iii) the evidence was material to guilt or punishment. Id. at ¶ 20.

Morales alleged  that the withheld evidence of the agreement between the State and Garcia (and Ortiz) was material to his conviction because the State’s case hinged on that eyewitness testimony and was favorable to him because it had impeachment value. Id. at ¶ 21. The Appellate Court agreed with Morales that the evidence provided (INS letter and voicemail) constituted evidence of a pre-existing agreement that the State failed to disclose. Id. at ¶ 24. Moreover, the court held that while there exists the possibility for more than one interpretation of the information contained within the INS letter and voicemail, it is not the court’s responsibility to weigh competing interpretations, but rather to construe them liberally in Morales’ favor. Doing so lead to the conclusion that there was arguably an agreement between the State and Garcia that he would receive assistance in exchange for his testimony at trial. Id. at ¶ 26.

The court asserted that the State may be able to challenge the actual existence of a deal between both parties in later stages of proceedings, but under standards for first-stage review and the liberal construction afforded to Morales, the court found sufficient evidence in support of Morales’ claims regarding the State’s failure to disclose a pre-trial agreement. Id. at ¶ 29.

The State conceded Morales’ favorability argument regarding the impeachment value of the alleged agreement between the State and Garcia, acknowledging that it would have had the obligation to disclose any immigration deal it had with Morales. Id. at ¶ 31. The Appellate Court agreed with Morales that the disclosures of the discussions and alleged deal with Garcia would arguably have been favorable to Morales. Id. at ¶ 33. Moreover, in the context of materiality, the court held that it is “at least arguable that evidence of an agreement for immigration assistance between Garcia and the State would have been material” under the standards for materiality applied in ineffective assistance of counsel cases (Kyles v. Whitley, 514 U.S. 419, 434 (1995) and Strickland v. Washington, 466 U.S. 668, 694 (1984)). Id. at ¶ 35-36.

Under the Kyles standard, the court asserted in response to the State’s argument that Morales must only establish that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at ¶ 36. Ultimately, the court concluded that the information Morales identified was material as the truthfulness and memory of Garcia, whose testimony was “critical” to the State’s case. Id. at ¶ 37. The court rejected all arguments extending the Brady analysis to Ortiz. Id. at ¶ 38. The court did not evaluate any claims of actual innocence, as they are not necessitated nor permitted by the Act. Id. at ¶ 42.

The Appellate Court of Illinois First District reversed the first-stage dismissal or Morales’ post-conviction petition and remanded for second-stage proceedings consistent with the Act. Id. at ¶ 45.

 

Expunging your marijuana conviction under Illinois’ new Cannabis Regulation and Tax Act

On May 31, Illinois House Bill 1438, better known as the Cannabis Regulation and Tax Act, passed the Illinois House of Representatives by a vote of 66-47. The Act now awaits the signature of Governor J.B. Pritzker – a vocal supporter of the bill – prior to making Illinois the 11thstate in the United States to legalize marijuana for recreational purposes. Once the Act is signed, the sale, possession, production (through the licensure system) and recreational use of marijuana by persons 21 years or older will become legal in Illinois, effective January 1, 2020.

In addition to ending the prohibition on marijuana usage in Illinois, the Act also includes sweeping social justice provisions focused on expunging the criminal records of those arrested and/or convicted of non-violent marijuana related offenses. Whether or not an individual is eligible for expungement under the Act, or required to take action in order to have their record expunged, is largely dependent upon the type of crime they were originally arrested for and the date of that offense.

Can My Marijuana Conviction be Expunged?

The short answer to this question is (in most cases), yes.

However, while the Cannabis Regulation and Tax Act’s expungement provisions are expected to impact roughly 770,000 Illinois residents, not all offenses are eligible for expungement. Additionally, under the Act, certain offenses may be subject to automatic expungement while others may require individuals to petition the court in order to be considered for expungement.

Automatic Expungement

The Act mandates the review and automatic expungement (by local state’s attorneys, the state Prison Review Board and Governor’s office) of all “minor cannabis offenses,” so long as at least one calendar year has passed since the date of arrest and no subsequent criminal charges were filed related to the arrest.

The Act defines a “minor cannabis offense” as:

“a violation of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.”

Under this definition, a majority of non-violent offenses related to the possession, manufacture and distribution of less than 30 grams of marijuana will be eligible for automatic expungement.

The automatic expungement mandate does NOT apply to marijuana related arrests and convictions associated with arrests and/or convictions for:

  • Violent sexual offenses
  • Sexual offenses against a minor
  • Stalking offenses
  • Any offense resulting in a court order to register as a Sex Offender
  • Animal abuse offenses
  • Violations of local ordinances

The Act also provides a schedule (and deadlines) for law enforcement agencies to automatically expunge qualifying offenses and records based upon the initial date of arrest.

  • Records created prior to the effective date of the Act (January 1, 2020), but on or after January 1, 2013, shall be automatically expunged prior to January 1, 2020
  • Records created prior to January 1, 2013, but on or after January 1, 2020, shall be automatically expunged prior to January 1, 2023
  • Records created prior to January 1, 2000 shall be automatically expunged prior to January 1, 2025

All qualifying offenses are required to be automatically expunged no later than January 1, 2025, five years from the effective date of the Act.

Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged.

Expungement by Petition

All individuals with records of marijuana offenses related to possession of between 30 and 500 grams of cannabis (misdemeanors or Class 4 felony violations of Sections 4 or 5 of the Cannabis Control Act), while ineligible for automatic expungement, are provided the opportunity to petition the circuit court for expungement (and a vacated conviction) under the Act. Unlike records eligible for automatic expungement, these petitions are not guaranteed to result in expungement (or a vacated conviction), but do create the opportunity for such a result, which did not exist prior to the Act.

This process, as detailed by the Act, allows qualified “petitioners” (individuals seeking expungement) to petition the circuit court for expungement following “the completion of any sentence or condition imposed by the conviction.” This includes all instances of:

  • Acquittal, dismissal or release without charges
  • Vacated or reversed convictions
  • Successfully completed of orders of supervision
  • Successfully completed probation

The Act provides time frames (designated waiting periods) for filing a petition to expunge for each categories of petitioner:

  • For arrests resulting in acquittal, dismissal, release without charges, a vacated conviction or reversal, there is no waiting period to petition for expungement of those records
  • For arrests resulting in an order of supervision for any offenses not specifically outlined by the Act, petitioners must wait 2 years following the satisfactory termination of supervision to petition for expungement of those records
  • For arrests related to the listed violations of the Illinois Vehicle and Criminal Codes (Section 3-707, 3-708, 3-710, or 5-401.3 of the Illinois Vehicle Code, Section 11-1.50, 12-3.2, 12-15 of the Criminal Code of 1961 or 2012), petitioners must wait 5 years from the satisfactory termination of supervision to petition for expungement of those records.
  • For arrests resulting in an order of qualified probation, petitioners must wait 5 years following the satisfactory termination of probation to petition for expungement of those records

Because these petitions are not guaranteed to result in expungement, the court will take into account the reasons for law enforcement to maintain a petitioner’s records; the petitioner’s age; their age at the time of the offense; the time since conviction; and, the adverse consequences the petitioner would suffer if their petition was denied, prior to making a decision regarding expungement.

The Act also allows the state’s attorney offices of any Illinois country to file motions to expunge records on behalf of any convicted individual whose conviction the office has jurisdiction over.

Questions About Expungement?

For individuals seeking expungement under the Cannabis Regulation and Tax Act, we highly recommend contacting an attorney to discuss your options and eligibility. If you are in need of an attorney for assistance with expungement of marijuana-related offenses or any other criminal defense, post-conviction, or appeals issues, please call Nate Nieman at (309) 623-4831 or email nate@niemanlaw.com to schedule a consultation at one of our convenient locations in the Quad Cities, Chicago, or Des Moines.

Appellate court finds post-conviction petition timely but finds merits lacking

In the People of the State of Illinois v. Luster T. Scott, 2019 IL App (2d) 160439, the Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Du Page County to dismiss appellant’s pro se post-conviction petition at the second stage of proceedings.

Appellant Luster Scott was adjudicated guilty at trial of two counts of aggravated unlawful use of a weapon, as well as one count each of attempted vehicular hijacking, attempted armed robbery, aggravated battery with a firearm, and aggravated battery. These charges were related to a December 11, 2002 shooting in a bank parking lot. Id. at ¶ 3. Scott was sentenced to 22 years’ incarceration. Id. at ¶ 7. Immediately following conviction and sentencing, Scott appealed the ruling, arguing (in part) that the court had erred in failing to suppress statements made by detectives at trial. Scott alleged throughout trial proceedings that he had been physically abused by case detectives, denied access to an attorney, and never been read his Miranda rights. The Appellate Court of Illinois Second District affirmed upon appeal. Id. at ¶ 7. In April 2007, the United States Supreme Court denied certiorari. In November 2007, Appellant Scott, pro se, filed a post-conviction petition pursuant to the Post Conviction Hearing Act, via the prison mail system, which was incorrectly post-marked and featured a cover page attempting to establish proof of service on October 28, 2007. Id. at ¶ 8. The petition was initially dismissed for untimeliness and failure to provide an affidavit from the witness, Jon McClain, alleging violations of Appellant’s Miranda rights, yet was corrected and ultimately approved upon rehearing. Id at ¶ 9.

Following an unexplained nearly 8-year delay, in October 2015, Scott’s post-conviction counsel filed an amended petition alleging that trial counsel was ineffective for failing to investigate and call McClain to testify, as well as failing to investigate Scott’s allegations of police misconduct and abuse. Id. at ¶ 10. Included in the petition were allegations that Detectives Evoy and Klecka had transferred Scott to an interrogation room, following repeated requests to speak with an attorney, and repeatedly struck him in the face; an affidavit from McClain stating he had been in the holding cell with Scott and witnessed Scott leave their joint holding cell absent physical injuries yet returned with wounds to his head and an affidavit from McClain that Scott had been denied requests for an attorney. Id. at ¶ 12. The court dismissed the petition as untimely without addressing the merits, holding that Scott had until October 30, 2007, six months from the date that certiorari was denied, to file his petition. Id. at ¶ 13.

On appeal, Appellant contended that the trial court erred in finding his petition untimely as changes in law apply retroactively and should render all pleadings and post-trial motions timely, so long as they were placed in the prison mail system within the required period of time. In support of this argument, Scott cited Illinois Supreme Court Rule12(b), which was amended to allow a pro se litigant in a correctional institution to enclose a certification, in lieu of an affidavit, “of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Id. at ¶ 16.

The Appellate Court and State agreed that the amendment to Rule 12(b) ought to apply retroactively, yet disagreed on its application to Scott’s case, as his proceedings had completed prior to his filing of the proof of service. Upon review, the Appellate Court held that the amended rule applied retroactively to Scott. Id. at ¶ 19. Moreover, the Appellate Court held that despite the State’s assertions to the contrary, the minor errors in the address listed on the certification were inconsequential and that proof of service (as required under Rule 12(b)) substantially complied with requirements to list a complete address. As a result, the Court ruled that the trial court erred in dismissing appellant’s petition as untimely and determined the petition was timely in nature. Id. at ¶ 24.

Next, the Appellate Court moved to evaluate the merits of Scott’s pro se post-conviction petition. Following the State’s assertion that the petition should be dismissed for failure to make a substantial showing of a constitutional violation, the Appellate Court ordered Scott to file a supplemental brief addressing the merits. Id. at ¶ 25.

On the merits, Scott argued that constitutional violations took place both when his counsel failed to investigate and call McClain to support his motion to suppress based on his invocation of his right to counsel, and when his counsel failed to challenge his sworn statements as being the byproduct of physical coercion. Id. at ¶ 28. Appellant’s assertions of constitutional violations stemming from the ineffective assistance of counsel were evaluated under the guidelines established in Strickland v. Washington, 466 U.S. 668 (1984), which states that “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” Id. at ¶ 30. This standard is referred to as the Strickland standard. Prejudice, under the Strickland standard, is established “when a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 30. The State argued that prejudice could not be established because of the overwhelming evidence that existed against Appellant. The Appellate Court agreed. Id. at ¶ 31, 33. Moreover, the Appellate Court held that Appellant’s assertions regarding physically coerced statements were rebutted by the record and Scott’s own statements at trial. Id. at ¶ 34.

The judgement of the circuit court of Du Page County was affirmed by the Appellate Court of Illinois Second District on the merits. Id. at ¶ 37.

 

Court holds that all evidence in support of a petitioner’s claims must be attached to the post-conviction petition, which counsel failed to do

In the People v. Burns (2019 IL App (4th) 170018), the Appellate Court of Illinois Fourth District reviewed and ultimately overturned the decision of the Circuit Court of Macon County to grant the State’s motion for dismissal of defendant’s amended pro se post-conviction petition.

Appellant Emerson T. Burns was convicted of first-degree murder of his six-month-old child, A.S. and sentenced to 50 years in prison following a bench trial in June 2011. Immediately thereafter, appellant unsuccessfully appealed his conviction, which was affirmed by the Appellate Court of Illinois Fourth District. Id. at ¶ 5. In December 2013, pursuant to the Post Conviction Hearing Act, appellant filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel related to appellant’s initial appeal. Id. at ¶ 6. The petition advanced to the second stage of proceedings in March 2014, with the trial court permitting post-conviction counsel to withdraw and appointing new counsel in December 2015. In August 2016, appellant (through counsel) filed an amended petition further alleging ineffective assistance of both trial and appellate counsel for failing to allow appellant to testify on his own behalf and failure to present evidence to rebut the State’s theory. Id. at ¶ 7. Appellant’s counsel failed to attach any of the relevant evidence or documents to the amended petition upon filing. As a result, the trial court dismissed the petition in December 2016 after concluding appellant forfeited claims because they “could have been raised on direct appeal” and “failed to demonstrate prejudice regarding his ineffective-assistance claims.” Id. at ¶ 9.

On appeal, appellant Burns argued that the trial court erred in dismissing his petition at the second stage because he had both made a substantial showing of ineffective assistance of counsel and, in the alternative, argued that the court should remand for further proceedings because his post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). Id. at ¶ 12. Illinois Supreme Court Rule 651 (c) provides the specific duties required of appointed counsel in post-conviction proceedings. Specifically, that counsel has an obligation to certify that he/she has “consulted with petitioner either by phone, mail, electronic means or in person to ascertain [petitioner’s] contentions of deprivation of constitutional rights,” examined the record of the proceedings at trial and sentencing, and made any amendments to the petition that are necessary for the adequate presentation of the petitioner’s claims.” Id. at ¶ 20. Further, the rule requires that all evidence in support of petitioner’s claims be attached to all relevant motions, which post-conviction counsel failed to do in all accounts. Id. at ¶ 21. The court ruled that because their decision to remand would be made on this issue alone, they did not need to address nor analyze the remaining claims made by appellant. Id. at ¶ 23.

While not relevant to the court’s decision on Rule 651 (c), the court opined that in order to avoid an “explosive situation” related to denial of a petitioner’s right to testify, that all trial courts should “admonish the defendant personally that he alone possesses the right to choose whether to testify on his own behalf, and that he should make that decision after consulting with counsel. Trial courts should emphasize to the defendant that whatever trial counsel’s advice on this point may be, counsel cannot force the defendant to testify, nor can counsel prevent the defendant from testifying.” Id. at ¶ 24. The court concluded that in the event of an admonishment of this sort, defendants would be properly informed of their rights and insulated from attacks. Id. at ¶ 25.

The court ultimately accepted the State’s concession that appellant’s post-conviction counsel failed to comply with Illinois Supreme Court Rule 651 and remanded for further second-stage post-conviction proceedings. Id. at ¶ 13. Further, in addressing the failure to comply with the rule, the court directed the trial court to provide appellant with “new post-conviction counsel who shall have leave to amend and to add supporting documentation, as counsel deems necessary, in support of defendant’s claims.” Id. at ¶ 13.

An appellate court lacks the supervisory authority that would allow it to review an as-applied constitutional claim that was not raised in a post-conviction petition

The appellant in People v. Allen, 2019 IL App (1st) 162985, appealed the decision of the Circuit Court of Cook County denying leave to file his third successive pro se petition on the grounds that appellant’s mental illness renders him incapable of meeting the threshold burden of showing an arguably meritorious claim.

Appellant Allen was convicted of home invasion and the first-degree murder of his sister, Debbie Whitebear. Id. at ¶ 4. During appellant’s trial proceedings, Allen was diagnosed with a “psychotic delusional disorder.” Id. at ¶ 6. Appellant’s diagnosis, made following the examination and testimony (at a fitness hearing) of four psychologists and psychiatrists, stemmed from his theory of the case which stated that he had “killed his sister to protect their elderly mother from her abuse”; that his siblings had conspired to “hide from him the existence of a real estate trust which held the property of a man named Carl Lewis”, whom he believed was his real father; and, that Claude W. Allen Jr. his purported father, was a “serial killer.” Id. at ¶ 4. Appellant Allen also filed a pro se “Motion for Withdrawal of the Public Defender,” in which he argued that the public defender was “in direct collusion with the Assistant State’s Attorney.” Id. at ¶ 5. Appellant maintained these and other theories throughout pre-trial, trial and post-trial proceedings.

After appellant was restored to fitness and determined to be fit for trial, he filed a motion to proceed pro se and proceeded to represent himself in his trial in November 2007. Id. at ¶ 10. Ultimately, the “jury found petitioner guilty of first-degree murder and home invasion.” Id. at ¶ 14. Following his conviction, appellant Allen filed a series of post-trial motions maintaining the aforementioned theories regarding his stolen inheritance, among other newly posited theories. The court denied the motions and sentenced him to “60 years’ imprisonment for the murder and a consecutive term of 25 years for home invasion.” Id. at ¶ 16.

On direct appeal, appellant argued that he was not mentally competent to represent himself pro se and that his waiver of trial counsel was invalid. The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court. Id. at ¶ 17. Following the appellate court’s ruling, appellant unsuccessfully petitioned the Illinois Supreme Court for leave to appeal, which was denied on September 29, 2010. The United States Supreme Court then subsequently denied appellant’s request for a writ of certiorari (Allen v. Illinois, 563 U.S. 1034 (2011)). Id. at ¶ 17.

Following two unsuccessful successive post-conviction petitions, on November 9, 2015, appellant filed a third successive post-conviction petition and a motion for expert assistance, which constitute the focus of the current appeal before the Appellate Court of Illinois First Judicial District. Id. at ¶ 23. The petition, which alleged the ineffective assistance of counsel in both of his previous post-conviction petitions, was denied by the court because “petitioner [Allen] had not established any prejudice from the alleged failures of his appellate counsel.” Id. at ¶ 26. On December 1, 2016, the court granted Allen leave to file a late notice of appeal from the circuit court’s order denying his motion for expert assistance and denying him leave to file his third successive petition. Id. at ¶ 26.

In the court’s analysis of the appeal, the primary issue of focus became whether appellant was so mentally ill that he was “incapable of advancing past the first stage of postconviction proceedings without the assistance of counsel.” Id. at ¶ 28. The court added that if appellant’s mental illness did in fact prevent him from proceeding without the assistance of counsel, they must determine the appropriate remedy.

The court analyzed the relative merit of appellant’s claims that his federal and/or state constitutional rights had been substantially violated via the procedural mechanism for such claims provided under the Post Conviction Hearing Act. As noted by the court, “[t]he Act allows inquiry into constitutional issues arising in the original proceeding which have not been raised and could not have been adjudicated on direct appeal. Therefore, issues that could have been raised on direct appeal are forfeited” and “any claim not presented in an original or amended petition is waived.” Id. at ¶ 29.

Of the three stages of proceedings under the Act, the first is especially pertinent to the court’s analysis because it is the stage that determines whether “the petition is frivolous or is patently without merit” and whether the petitioner is able to proceed to the second stage of proceedings, which would result in the appointment of counsel. Id. at ¶ 31.

The State Appellate Defender, on behalf of appellant, abandon’s all previous claims of error presented by appellant and did not present an argument that appellant stated a potentially meritorious claim in his most recent petition, as would have been required to proceed past the first stage of proceedings under the Post Conviction Hearing Act. Rather, the State Appellate Defender argued that “petitioner is so mentally ill that he is incapable of making a pro se showing of an arguably meritorious claim” and “because [he] does not acknowledge his illness and because he harbors prosecutory and paranoid delusions, he is incapable of raising any issues that are not “fantastic or delusional.” Id. at ¶ 33. As such, the State Appellate Defender argued that appellant is unable meet the threshold requirements to receive the appointed counsel that he “needs to present his potentially valid claims” and “is effectively denied meaningful access to the courts,” rendering the Act “unconstitutional as applied to him.” Id. at ¶ 33.

The relief requested by the State Appellate Defender was the reversal of the order denying petitioner’s leave to file his third successive post-conviction petition and the appointment of counsel to assess whether petitioner has any potentially meritorious claims. Id. at ¶ 36.

However, the court determined, regardless of fundamental fairness, it was unable to grant the requested relief because the “as-applied constitutional challenge has been waived” under the aforementioned guidelines of the Act. Id. at ¶ 37. Ultimately, the court held that unlike the Illinois Supreme Court, the appellate court lacks “the supervisory authority that would allow us to review an as-applied constitutional claim that was not actually raised in the petition.” Id. at ¶ 40.

Thus, because the as-applied constitutional challenge was not raised in the petition at the circuit court level, the court was compelled to find that it cannot be raised in this appeal and affirmed the judgement of the circuit court.

Court re-affirms that free-standing innocence claim cannot be brought after guilty plea

On May 8, 2019, the Appellate Court of Illinois Fourth District, having previously denied appellant Demario D. Reed’s appeal of the Macon County Circuit Court’s decision to deny post-conviction relief in People v. Reed, 2019 IL App (4th) 170090, re-affirmed their judgment (originally filed on March 27, 2019) and denied a subsequent petition for re-hearing.

The court’s background and analysis in the modified opinion remains largely the same, yet the analysis section is augmented significantly by their revised consideration of the precedential value of People v. Shaw, 2018 IL App (1st) 152994.

Shaw was initially cited by appellant in his appellate brief for its determination that “a freestanding actual innocence claim may be brought [in a postconviction proceeding] after a guilty plea, and that a defendant need not challenge the knowing and voluntary nature of his or her plea to bring such a claim.” Id. at ¶ 16. The Court originally “disagreed with Shaw’s holding that a postconviction claim of actual innocence may be brought after a valid guilty plea for three reasons.”

These three reasons were:

“First, the court believed the application of the Washingtontest inShawis like “trying to jam a square peg into a round hole” as (the supreme court dictates that) all postconviction claims of actual innocence must meet the Washingtonstandard and guilty-please are “inherentlyincapable of meeting the Washingtonstandard.” Id. at ¶ 36.

Second, the court held that “actual innocence would be a no jurisdictional defense to the charge and a guilty plea waives all nonjurisdictional defenses or defects.” Id. at ¶ 37. The court concluded that “[i]f, by a postconviction claim of actual innocence, defendant now can obtain a trail, [the] admonition (of relinquished rights to a trial of any kind) would have been false.” Id. at ¶ 37.

Third, the court held that “defendants cannot knowingly and voluntarily plead guilty in the trial court and then turn around and complain to reviewing court that the trial court found them guilty” as that would be duplicitous. Id. at ¶ 38. Further, the court argued that even in the event that defendant’s conviction was a constitutional error, “it was an error he himself invited by pleading guilty” and “the use of invited error as a basis for postconviction relief is clearly frivolous and patently without merit.” Id. at ¶ 38. In support of this, the court cited People v. Harvey, 211 Ill. 2d 368, 385 (2004), which ruled “Defendant is estopped from “us[ing] the exact ruling or action [he] procured in the trial court as a vehicle for reversal on appeal.” Id.at ¶ 38.”

However, while the reasons cited by the court were sufficient to hold “because the validity of the guilty plea entered by defendant was not called into question upon appeal, that, de novo, appellant remains bound by his guilty plea and that “his claim of actual innocence cannot be entertained,” id. at ¶ 2,” they became inconsequential following the First District’s withdrawal of their opinion in Shaw, on March 19, 2019. Id. at ¶ 16. Following the First District’s withdrawn decision, the Court determined that “[a] withdrawn opinion lacks precedential value.” People v. Jordan, 103 Ill. 2d 192, 205 (1984).” Id. at ¶ 16.

As a result of Shaw’s lack of precedential value, the Court turned to the only Illinois case which “has addressed the question of whether, in a postconviction proceeding, a defendant may raise a claim of actual innocence after being convicted on a valid, i.e., knowing and voluntary, guilty plea,”People v. Barnslater, 373 Ill. App. 3d 512 (2007). Id. at ¶ 17. Notably, the Court had initially looked to Barnslater (in the initial opinion) as more substantial precedent in the consideration of appellant’s grounds for appeal because it had cited Supreme Court precedent from People v. Cannon, 46 Ill. 2d 319, 321 (1970), noting, “when the supreme court speaks, our duty is to obey.” Id.at ¶ 19. Following the withdrawal of the First District’s decision in Shaw, Barnslater became the only precedent on the matter.

As such, the Court’s analysis remained largely the same. In the consideration of Barnslater, the court held that:

“only in the event of a coerced plea agreement would there be sufficient constitutional deprivation to justify postconviction relief,” and “not where he claims actual innocence in the face of a prior, constitutionally valid confession of guilt.” Id.at ¶ 17.

Despite acknowledging the cited passage from the ruling may have been obiter dictum (a “remark or expression of opinion that a court uttered as an aside, and is generally not binding authority or precedent within the stare decisis rule,”), because there was no Supreme Court precedent establishing that “a postconviction claim of actual innocence can be entertained after a guilty plea,” the Court held that “the obiter dictum of Cannon is still the law.” Id. at ¶ 21.

The remainder of the court’s analysis remained the same:

“the court used the Washington evidentiary standard set in People v. Washington, 171 Ill. 2d 475, 489 (1996), that all evidence of actual innocence brought under the Post-Conviction Hearing Act must be “new, material, noncumulative[,] and, most importantly, of such a conclusive character as would probably change the result on retrial” in their evaluation of Reed’s claims of actual innocence. Id.at ¶ 23. As a result, the court held that in the event of a negotiated guilty plea, the defendant in that case would never be in a position for retrial as a voluntary guilty plea involves waving the rights to a jury trial and proof beyond a reasonable doubt. Moreover, the court held that because a guilty plea releases the State from their evidentiary burden, “[e]vidence, in general, would have been immaterial and superfluous.” Id.at ¶ 24.

Ultimately, the court held, because the validity of the guilty plea entered by defendant was not called into question upon appeal, that appellant remains bound by his guilty plea and that “his claim of actual innocence cannot be entertained.” Id.at ¶ 2. In support of this ruling, the court cited People v. Pendleton, 223 Ill. 2d 458, 473 (2006) and People v. Cannon, 46 Ill. 2d 319, 321 (1970).

As a result, the Appellate Court of Illinois Fourth District affirmed the ruling of Circuit Court of Macon County No. 14-CF-1205 and awarded the State $50 in costs against defendant.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In ground-breaking new decision, Illinois Supreme Court determines what constitutes a de facto life sentence for juveniles

In People v. Buffer, 2019 IL 122327, the Illinois Supreme Court reviewed, and ultimately affirmed, an appellate court’s decision to overturn the Cook County circuit court’s dismissal of a pro se post-conviction petition filed by the petitioner, Dimitri Buffer.

The petition asserted that a 50-year prison sentence for a crime committed by a 16-year-old was unconstitutional, as applied to the petitioner. The circuit court of Cook County initially dismissed the petition, yet their dismissal was promptly reversed by the appellate court, who held that the petitioner’s sentence was “imposed without consideration of his youth and its attendant characteristics” Id. at ¶ 1. Thus, the appellate court ruled that the sentence issued by the circuit court of Cook County constituted a violation of the petitioner’s eighth amendment rights guaranteed by the U.S. Constitution. The appellate court vacated the petitioner’s sentence and remanded the case to the circuit court for re-sentencing. Id. at ¶ 2. However, while the Supreme Court did affirm the judgement of the appellate court, the Court’s affirmation was made on different grounds than that of the appellate court. Id. at ¶ 3.

Prior to appeal, a jury found the defendant Buffer guilty of four counts of first degree murder, and specifically found that “defendant personally discharged a firearm that caused the victim’s death.” Id. at ¶ 5. In 2010, at the time of sentencing, Illinois law prescribed a sentencing range of 20 to 60 years for first degree murder and mandated a minimum 25-year additional prison term for personally discharging a firearm that “caused the victim’s death.” The Cook County circuit court merged the four first degree murder counts, sentencing defendant to 25 years for first degree murder with a 25-year mandatory firearm add-on, for an aggregate sentence of 50 years (followed by 3 years of mandatory supervised release). Id. at ¶ 5.

At the time of defendant’s direct appeal, June 2012, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), which held that “imposing on a juvenile offender a mandatory sentence of life without the possibility of parole, without consideration of the defendant’s youth and its attendant characteristics,” violated the eighth amendment. Id. at ¶ 6. Petitioner unsuccessfully filed a motion seeking leave to file a supplemental brief addressing the applicability of Miller to his sentence. However, the court denied defendant’s motion for leave and ultimately affirmed the Cook County circuit court conviction and sentence. People v. Buffer, 2012 IL App (1st) 102411-U, leave to appeal denied, No. 115148 (Ill. Jan. 30, 2013). Id. at ¶ 6.

Following aMarch 2014 opinion by the Supreme Court of the State of Illinois, which held that Miller applied retroactively to cases on collateral review  (People v. Davis, 2014 IL 115595), defendant filed a pro se post-conviction petition in the circuit court, relying on Miller. The petition argued that petitioner’s 50-year sentence violated the eight amendment because it “constituted a de facto life sentence”. Id. at ¶ 7. The Cook County circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 7.

Defendant appealed from the Cook County circuit court’s dismissal of his post-conviction petition on September 5, 2014. While the appeal was pending, the United States Supreme Court agreed with the conclusion reached in Davis that Miller applied retroactively to cases on collateral review. See Montgomery v. Louisiana, 577 U.S. 136 S. Ct. 718 (2016). During that same period of time, the Supreme Court of the State of Illinois also decided People v. Reyes, 2016 IL 119271, extending Miller’s holding barring juveniles from mandatory natural life sentences to include mandatory de facto sentences. Id. at ¶ 8. The appellate court reversed the Cook County circuit court’s summary dismissal of defendant’s post-conviction petition on the grounds that “(1) pursuant to Reyes, defendant’s 50-year sentence was a mandatory de facto life sentence and (2) the circuit court failed to consider defendant’s youth and its attendant characteristics in imposing sentence.” Id. at ¶ 9. The court determined that Buffer’s sentence violated his eight amendment against cruel and unusual punishment and  vacated and remanded the case to the circuit court for re-sentencing under the juvenile sentencing statute (730 ILCS 5/5-4.5-105 (West 2016)). The State appealed the appellate court’s decision to the Illinois Supreme Court. Id. at ¶ 10.

The Illinois Supreme Court evaluated the State’s appeal and the constitutional issues involved in the original conviction and sentence in three distinct areas: the eighth amendment claim, the de facto life sentence issue, and the proper remedy. Id. at ¶ 11, ¶ 28, and ¶ 43.

As to Buffer’s eighth amendment claim, the court held that, in accordance with the United States Supreme Court view, Miller was a “substantive constitutional rule that applied retroactively.” Id. at ¶ 23. The Court also cited Montgomery as substantive reaffirmation of the holdings of Miller. The Court “concluded that Miller and Montgomery send an unequivocal message: Life sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.” Id. at ¶ 25. Six months later, the Court held once again, in Reyes, 2016 IL 119271, “that sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of life without the possibility of parole constitutes cruel and unusual punishment in violation of the eighth amendment.” Id. at ¶ 26. As a result, the Court held that in order to “prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 27.

As to de facto life sentences, the Court attempted to “to determine when a juvenile defendant’s prison term is long enough to be considered a de facto life sentence without parole.” Acknowledging, and ultimately rejecting, the wide range of opinions on the subject, the Court looked to the General Assembly for guidance as the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Id. at ¶ 34. In accordance with Miller, “the General Assembly has determined that the specified first-degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.” Id. at ¶ 39. As a result, the Court chose to “to draw a line at 40 years” for a de facto life sentence. Id. at ¶ 40. The Court thus stated, “because defendant’s sentence was greater than 40 years, we conclude that defendant received a de facto life sentence” and vacated the sentence as unconstitutional pursuant to Miller, Montgomery, Reyes and Holman. Id. at ¶ 42.

As to the remedy, the Court held that “Based on the particular issue raised in this appeal and in the interests of judicial economy, we agree with the appellate court that the proper remedy is to vacate defendant’s sentence and to remand for a new sentencing hearing.” Id. at ¶ 47.

Buffer is likely to have a significant impact on the development of juvenile sentencing law in the state of Illinois. In fact, just today, the court vacated my client’s 45-year sentence vacated pursuant to Buffer after his successive post-conviction petition was granted.