Petitioner was not able to show prejudice under Strickland where he was unable to show that it would have been reasonable to reject the plea offer

The appellant in People v. Watkins, 2019 IL App (4th) 180605 appealed the decision of the trial court striking his post-plea motions to withdraw his guilty pleas as untimely and summarily dismissing his post-conviction petition. The Fourth District affirmed the judgments of the trial court because the appellant withdrew his challenges to the dismissal of his post-plea motions and found the post-conviction petition to be frivolous and patently without merit. Id. at ¶ 2.

Watkins entered negotiated guilty pleas for unlawful possession of a controlled substance with the intent to deliver it, for which he received two consecutive six-year terms of imprisonment. Id. at ¶ 1. At the time the trial court accepted the plea, the court found the factual bases to be sufficient and the guilty pleas to be knowingly, voluntarily, and intelligently made. Id. at ¶ 7.

Shortly thereafter, Watkins moved to withdraw his guilty pleas in both cases, while simultaneously petitioning the court for post-conviction relief. Id. at ¶ 10. The post-plea motions alleged that the pleas had been “induced by erroneous advice and urging by [defense counsel] that pleading guilty was the only choice that [he] had because all the evidence suggested that he was guilty.” Watkins further alleged that the guilty pleas were not voluntary and knowing and that he was not aware of the direct consequences of his pleas. Id. at ¶ 10. Both petitions were stricken as untimely for being filed “well after” 30 days after judgment. Id. at ¶ 11.

As noted, at the time the motion to withdraw guilty plea was entered, Watkins also filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel for failing to challenge the legality of the traffic stop resulting in appellant’s arrest. Id. at ¶ 13. Appellant alleged that this ineffective assistance resulted in an involuntary guilty plea and the subversion of his will via bad legal advice. Watkins argued that defense counsel should have subjected the State’s case to meaningful adversarial testing by filing a motion to suppress, which would have been granted by the court. The petition included three reasons why Watkins had suffered a violation of his fourth amendment rights during the traffic stop. Shortly after filing, the circuit court summarily dismissed the post-conviction petition. This appeal followed.

On appeal, Watkins abandoned his challenge to the dismissal of the motions to withdraw both guilty pleas. As such, the court did not evaluate these claims and affirmed the circuit court’s judgement in this regard. Id. at ¶ 21.

On the summary dismissal of the post-conviction petition, the court determined that because any claim of substantial denial of constitutional rights not raised in the original or amended post-conviction petition is waived, its analysis would be limited exclusively to issues raised in the original petition. Id. at ¶ 24. To that end, the court utilized the Strickland test for determining the effectiveness of defense counsel, requiring a petitioner to demonstrate both deficient performance and prejudice resulting from the alleged ineffective assistance. Id. at ¶ 29.

The court noted that under the Strickland standard, “a conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice;” rather, a petitioner must also demonstrate that a decision to reject the plea bargain would have been rational under the circumstances. Id. at ¶ 31. In its review of the reasonableness of defense counsel’s advice to accept the plea deal (as opposed to filing a motion to suppress), the court held that counsel’s advice to accept a plea deal for less than half the maximum prison term was a strategic decision that the court owed great deference to. It therefore concluded that the post-conviction petition in this case was frivolous. Id. at ¶ 39. The appellate court affirmed.

Appellate court reverses denial of 2-1401 petition where State did not file a response

The appellant in People v. Cathey2019 IL App (1st) 153118, appealed the decision of the trial court dismissing two petitions seeking relief from convictions, on grounds that the court erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure attacking his convictions under the one-act, one-crime rule. Appellant further contended that his petition “in nature of writ of error coram nobis” sufficiently stated a claim of actual innocence (based on planted evidence) and that his plea was obtained under threat of physical harm to him and his family. The First District affirmed the dismissal of appellant’s coram nobis petition but reversed the dismissal of his section 2-1401 petition and remanded for further proceedings.

Cathey was found guilty at jury trial for attempted first degree murder and aggravated battery with a firearm and sentenced to 20 years’ imprisonment for both charges. Cathey’s sentences were ordered to be served concurrently. Id. at ¶ 2-9. Cathey unsuccessfully appealed his convictions, arguing, unpersuasively, that his counsel was ineffective and that his due process rights had been violated. Id. at ¶ 10. After his subsequent pro se post-conviction petition was dismissed by the trial court, he filed the petitions for which this appeal is the subject.

The appellate court’s analysis of each of appellant’s petitions were conducted independent of one another. The court evaluated appellant’s section 2-1401 petition first.

Upon filing his pro se section 2-1401 petition alleging a one-act, one-crime violation, the State did not file a response. Id. at ¶ 12. Shortly after filing, the trial court sua sponte dismissed the petition. At no point did the court orally state its reasons for dismissing the petition, nor did it state for the record that Cathey or a representative was present. In its written order, the trial court found Cathey’s petition untimely since it was filed more than 20 years beyond the limitations period. The court also found that defendant was not entitled to relief on his one-act, one-crime claim “because aggravated discharge of a firearm and attempt murder are separate convictions.” Id. at ¶ 12. This appeal followed.

The court noted that section 2-1401 sets forth a procedure, that extends to criminal cases, by which the trial court may vacate final orders and judgements more than 30 days after their entry. Further, the court noted that because the State failed to file a response to the petition and the trial court did not hold a hearing before dismissing the petition, the threshold issue is whether the trial court had the authority to dismiss defendant’s section 2-1401 petition sua sponte because it was untimely filed where the timeliness issue was never raised by the parties. Id. at ¶ 14.

The appellate court found that pursuant to rulings in People v. Vincent and People v. Pinkonsly, the trial court cannot sua sponte dismiss a section 2-1401 petition based on untimeliness if that issue was never raised before the court. Id. at ¶ 18. Further, the court held that when the State does not answer a petition, its failure to respond constitutes an admission of all well-pleaded facts and that no triable issue of fact exists. Id. at ¶ 18. The court reasoned that where the State forfeits the timeliness defense by not answering the petition, defendant has no opportunity to amend his petition to allege facts showing a potential factual dispute, and dismissal, in this context, would be improper as a matter of law.

On the merits of the petition, the court held that while the petition sufficiently alleged a meritorious claim, “to obtain relief defendant must also allege facts supporting due diligence in presenting the claim to the trial court, and due diligence in filing section 2-1401 petition.” Id. at ¶ 27. Appellant alleged in his petition that he was not aware of the one-act, one-crime rule until September 2013, and that he relied upon his attorney to conduct his defense. The court ruled that while they must take all-well pleaded allegations as true, the issue of defendant’s diligence here raises questions of fact more suitable for an evidentiary hearing. As a result, the appellate court reversed the dismissal of appellant’s petition and remanded the cause for an evidentiary hearing on the issue of defendant’s diligence. Id. at ¶ 28.

On the motion in “Nature of Writ of Error Coram Nobis,” the appellate court noted that Illinois legislature had long ago replaced the common law writ with the statutory scheme that was the predecessor to section 2-1401 of the Code. As such, the motion was treated as a section 2-1401 petition for relief. Id. at ¶ 41. Under that framework, the appellate court determined the new evidence presented by appellant was “not of such conclusive character that it would change the result upon retrial” and therefore, the trial court had properly dismissed the petition. Id at ¶ 50.

Ultimately, the Appellate Court of Illinois First District affirmed in part, and reversed in part, the dismissal of appellant’s section 2-1401 petition and coram nobis petition. The case was remanded for further proceedings.


Denial of pro se motion reversed where court did not notify petitioner that it was re-characterizing his pleading before denying it

The appellant in People v. Cook, 2019 IL App (1st) 161428, appealed the trial court’s denial of his pro se “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings.” Cook contended that the court erred in re-characterizing his motion as a successive post-conviction petition and denying him leave to file it without first notifying him and giving him an opportunity to withdraw or amend it. The appellate court agreed and vacated the trial court’s order and remanded to give Cook the requisite notice and opportunity to withdraw or amend the motion. Id. at ¶ 2.

Cook filed his “Motion for New Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Withholding Evidence in Defendants Judicial Proceedings” absent citation or naming any statutory basis for his filing it. However, the motion claimed newly discovered evidence and argued that he was not proved guilty beyond a reasonable doubt, he was actually innocent, and he was wrongfully convicted. Id. at ¶ 4.

The motion was not supported by any attachments. The circuit court issued an order finding that the filing asserted constitutional claims as a collateral attack on his conviction and characterized the filing as a successive post-conviction petition. In the same order, the court denied leave to file the petition, finding that the claims were barred by waiver and res judicata and that Cook had not stated the requisite cause and prejudice for a successive post-conviction petition to be filed. Id. at ¶ 5. Cook appealed.

On appeal, Cook’s sole contention was that the court erred in re-characterizing the pleading as a successive post-conviction petition without giving Cook notice and an opportunity to amend or withdraw it, as required under People v. Shellstrom and People v. Pearson. Id. at ¶ 7. The State did not dispute appellant’s contention. However, the State argued that the court was not required to provide notice, as the filing was not a pleading commencing an action cognizable under Illinois law.

The appellate court held that while it is settled law that the court can re-characterize a pro se pleading alleging a deprivation of rights cognizable in an post-conviction proceeding (even when it is not labeled as such), the Shellstrom court held “when a circuit court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must (1) notify the pro se litigant” among other requirements. Id. at ¶ 10.

In response to the State’s argument that appellant’s motion did not include a pleading cognizable under Illinois law and therefore Shellstrom/Pearson should not apply, the court looked to People v. Swamynathan, which held that Shellstrom applied, despite not being a pleading commencing a cognizable action other than a post-conviction petition. The appellate court held that Shellstrom admonishments always follow a re-characterization, not just when the cognizable-action provisio applies. Id. at ¶ 16.

Ultimately, the appellate court found that the circuit court erred by not giving appellant the three-part Shellstrom admonishments upon re-characterizing his pro se motion as a successive post-conviction petition and denying leave to file it as such. Id. at ¶ 20. The appellate court vacated the trial court’s judgment and remanded to the case to the trial court to provide appellant with the Shellstrom admonishments.

Petitioner unable to show cause and prejudice for successive petition where he had raised a re-sentencing claim before

The appellant in People v. Morrow, 2019 IL App (1st) 161208, appealed the decision of the trial court denying him leave to file a successive post-conviction petition on grounds that his appellate counsel was ineffective for failing to ask the court to remand for re-sentencing following the vacation of his armed robbery conviction. The appellate court ultimately affirmed the trial court’s order.

Morrow was convicted of murder and armed robbery after a jury trial and sentenced to concurrent terms of 60 years imprisonment for murder and 20 years for armed robbery. On direct appeal, the appellate court affirmed appellant’s murder conviction and sentence but vacated his armed robbery conviction and sentence; finding that the State had failed to prove beyond a reasonable doubt that defendant had any intent to rob the victim. Id. at ¶ 18.

Morrow then filed a post-conviction petition, which was dismissed by the court as frivolous and patently without merit. Id at ¶ 19. Morrow appealed, and the trial court’s decision was affirmed. Following unsuccessful filings of a pro se habeas corpus petition, a pro se petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure, multiple motions for leave to file a successive petition, Morrow filed a third motion for leave to file a successive petition, which was the subject of this appeal. Id. at ¶ ¶ 33-37.

The third motion argued that the appellate court erred and that appellate counsel was ineffective for failing to ask the appellate court to remand for re-sentencing when it vacated his armed robbery conviction. Id. at ¶ 38. Further, the motion argued that Morrow’s post-conviction counsel was ineffective for failing to raise these claims before and that his sentence was excessive in light of his criminal history of misdemeanor offenses. Id. at ¶ 38. The trial court found that appellant had failed to establish either cause or prejudice and denied him leave to file the petition. Id. at ¶ 40. This appeal followed.

The court noted that in order to determine whether a successive petition can even be filed, the trial court must first determine whether the petition “(1) states a colorable claim of actual innocence or (2) establishes cause and prejudice.” Id. at ¶ 47. As Morrow exclusively allied cause and prejudice, that is the basis under which the court considered the claim. The court noted that “(u)nder the cause-and-prejudice test, a defendant must establish both (1) cause for his or her failure to raise the claim earlier and (2) prejudice stemming from his or her failure to do so.” The court noted that as “both prongs of the cause and prejudice test must be satisfied, we may uphold the denial of leave to file a claim if defendant has failed to establish either prong.” Id. at ¶¶ 55-57.

The appellate court rejected Morrow’s arguments because it determined that there was no evidence that the trial court was ever influenced by the armed robbery conviction or that appellate counsel’s alleged failure to raise the claim resulted in prejudice. Id. at ¶ 70. In support of this conclusion, the court pointed to statements in the record indicating that the trial court’s determination that the precipitating factor in the murder was defendant’s desire to protect his prostitutes, rather than a desire to rob the victim. Id. at ¶ 69.

The court also could not find cause excusing the failure to raise the claim earlier. Id. at ¶ 72. The court noted that appellate counsel did not seek a remand for re-sentencing, but also noted that Morrow could not possibly establish cause, as he had in fact raised the issue of re-sentencing in an earlier claim. Id. at ¶ 74. The court rejected subsequent arguments made by appellant that he could not have raised those claims earlier, as it would have required him to request his defense lawyer to argue his own ineffectiveness. Id. at ¶ 80.

Having found Morrow unable to establish cause and prejudice, and appellate court affirmed the trial court’s order denying Morrow leave to file a successive petition.



Post-conviction petition found meritless because evidence of petitioner’s guilt was overwhelming

The appellant in People v. Carlisle, 2019 IL App (1st) 162259, appealed the trial court’s order dismissing his pro se petition for post-conviction relief as frivolous and patently without merit on grounds that the petition stated the gist of a constitutional claim of ineffective assistance of appellate counsel. Id. at ¶ 2. The appellate court was unable to find that trial or appellate counsel was ineffective and therefore affirmed the decision of the trial court.

Prior to engaging in their review of the claims brought by appellant, the appellate court noted that any defendant raising a claim concerning appellate counsel must “show both that appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a reasonable probability that the appeal would have been successful.” Id. at ¶ 3. As a result, the court held that in order to succeed on the claim raised on appeal, appellant must show both (1) ineffective assistance of trial counsel and (2) ineffective assistance of appellate counsel, because any court must consider first whether trial counsel was ineffective. Thus, the court considered first whether trial counsel was ineffective, even though appellant did not raise that claim.

Carlisle was found guilty at jury trial of attempted murder and sentenced to 60 years DOC. Id. at ¶ 1. At trial, the State’s evidence established that Carlisle fired two rounds from sawed-off shotgun at police officers, who were called to investigate a disturbance. Carlisle fled the scene and was subsequently arrested. Id. at ¶ 6. The State’s evidence consisted of the testimony of eight witnesses, including the injured officer, arresting office, a forensic scientist and the assistant State’s Attorney. Id. at ¶ 8.

At the conclusion of the State’s case, defense counsel moved for a directed verdict, which was denied. All of the State’s exhibits were subsequently entered into evidence without objection by defense counsel. Id. at ¶ 37.  The defense’s case consisted of two key witnesses: (1) Guadalupe Vazquez, defendant’s then-girlfriend and now wife, and (2) defendant. Id. at ¶ 38. At the conclusion of the trial, the jury returned a verdict of guilty against Carlisle for five counts of attempted first-degree murder, one count of aggravated battery with a firearm, and one count of aggravated discharge of a firearm. Id. at ¶ 50. Carlisle unsuccessfully argued his motion for a new trial prior to being sentenced to 60 years DOC. Id. at ¶ 52.

On direct appeal, Carlisle claimed (1) that the trial court erred by barring the testimony of the defense’s proposed expert witness, Donald Mastrianni, a gun store owner who would have opined that defendant’s sawed-off shotgun was not deadly at the distance from which it was fired; (2) that defendant received ineffective assistance of counsel because his trial counsel failed to lay a proper foundation to introduce into evidence a supplementary investigation report from Detective Christopher Pavini, which defendant claims would have impeached the testimonies of Vicari and Carr; and (3) that the mittimus should be corrected to reflect only two counts of attempted first degree murder and that the counts of aggravated battery with a firearm and aggravated discharge of a firearm should be merged into the two counts of attempted first degree murder. Id. at ¶ 54. The State and court agreed with the third claim and corrected the mittimus accordingly. However, neither of the other two claims brought by appellant were persuasive to the court, resulting in the court affirming his conviction and sentence. Id. at ¶ 54.

During post-conviction proceedings, the sole issue raised by Carlisle was whether his appellate counsel was ineffective for failing to raise a claim about his trial counsel’s ineffectiveness with respect to certain photographs. Id. at ¶ 56. As noted by the court, the first step in making a determination in this matter was to consider whether trial counsel was in fact ineffective. In light of the overwhelming evidence of appellant’s guilt, the trial court found the petition frivolous and patently without merit. Id. at ¶ 59. This appeal followed.

The court’s review of this appeal was conducted de novo. On appeal, Carlisle asserted two layers of ineffective assistance of counsel. First, he asserts that counsel on his direct appeal was ineffective for failing to assert the ineffective assistance of his trial counsel. However, the court noted that counsel on his direct appeal did, in fact, assert the ineffective assistance of trial counsel on different grounds. Id. at ¶ 71. Appellant claimed on this appeal that trial counsel was additionally ineffective for failing to object to the publication in the jury room of photographs of a bloody police vest and radio.

The appellate court looked to the two-prong test established in Strickland v. Washington, which requires an appellant to prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id. at ¶ 74. The court further determined that one prong of the Strickland test does not need to be considered if another prong cannot be satisfied.

On the second prong of the Strickland test, the court held it need not determine if trial counsel was ineffective in failing to object to the publication in the jury room of the photographs as the “overwhelming evidence of defendant’s guilt in this case precludes defendant from being capable of showing that there was a reasonable probability that the outcome of this case would have been different if the photographs had not been published in the jury room.” Id. at ¶ 81. The court concluded that “Defendant’s admission at trial that he was the shooter, plus the State’s evidence of officers with bulletproof vests stating, ‘Police,’ engaging in the uniquely police function of patting down and arresting a suspect, while standing next to armed police vehicle…” overwhelmingly established that he knowingly shot at police officers. As such, the court did not make a determination as to whether trial counsel’s performance was deficient. Id. at ¶ 85.

Ultimately, the appellate court affirmed the trial court’s dismissal of Carlisle’s pro se post-conviction petition because it could not find an arguable basis for either prejudice or deficient performance by either counsel. Id. at ¶ 97.

Illinois Supreme Court declines to extend Krankel hearings to post-conviction cases

The petitioner in People v. Custer, 2019 IL 123339, requested the Illinois Supreme Court to extend procedures and protections established in People v. Krankel to claims of unreasonable assistance by post-conviction counsel in proceedings under the Post Conviction Hearing Act. Ultimately, the Supreme Court declined the invitation to expand its application of Krankel.

Custer was initially charged with unlawful possession of a controlled substance. Custer entered an open guilty plea to the charge. Prior to sentencing, petitioner was arrested again and charged with unlawful possession of a weapon by a felon, aggravated assault, unlawful use of a weapon, and aggravated battery. Id. at ¶ 4. Petitioner then failed to return for sentencing in the initial drug case and was subsequently arrested again. At sentencing, petitioner was sentenced to the maximum sentence of six years in prison. Id. at ¶ 5. Petitioner entered a negotiated plea to the charges of aggravated battery and unlawful possession of a weapon in exchange for the dismissal of the remaining charges. Petitioner was sentenced to consecutive 4 ½-year and 5-year sentences in prison. Id. at ¶ 6.

Shortly thereafter, Custer filed a pro se post-conviction petition, alleging ineffective assistance of trial counsel in the drug case for failing to appeal or move to withdraw his guilty plea at his request. Id. at ¶ 7. The petition advanced to the second stage of proceedings, where post-conviction counsel was appointed. Post-conviction counsel filed a brief containing four affidavits from petitioner corroborating his claims via by stating that both he and his girlfriend had asked to appeal his conviction and sentence and withdraw his plea. The petition was advanced to the third stage of postconviction proceedings as a result, and a third-stage evidentiary hearing was scheduled. Prior to the hearing, Custer’s girlfriend sent a letter to the trial court (1) refuting petitioner’s innocence, (2) claiming she helped petitioner agree to plead guilty, (3) stating she’d been informed by trial counsel he was filing an appeal, and, (4) post-conviction counsel had refused to take her statement. Id. at ¶ 8.

At the hearing, Custer testified that trial counsel had advised him he’d likely be sentenced to “probation or three years in prison” if he pled guilty to the drug charge. Custer testified that after receiving a six-year sentence, he had requested trial counsel file an appeal. Petitioner further alleged that trial counsel had informed Custer a month following his request that he did not appeal the sentence because he found no viable appellate issues. Id. at ¶ 9. At the hearing, trial counsel denied ever being asked to appeal or withdraw his plea, stating he would have filed for both if petitioner had asked. Id. at ¶ 10. The court found the claims raised by petitioner to be “totally unbelievable” and “clearly contradicted by the facts and circumstances set forth in the record.” Id. at ¶ 12. The court found trial counsel to be “very believable.”

At the hearing on Custer’s motion to reconsider, the trial court immediately denied the motion after the State argued that the motion lacked any valid grounds for reconsideration. Id. at ¶ 14. Custer then filed a successive post-conviction petition, arguing that the trial court erred in denying his reconsideration request without first conducting a Krankel hearing. Despite the fact that Krankel has never been extended to post-conviction proceedings, the appellate court remanded the cause to the trial court for a “Krankel-like inquiry.” Id. at ¶ 15. The state filed a petition for leave to appeal that order under Illinois Supreme Court Rule 315(a), which was allowed.

The Supreme Court outlined the question before them as “whether the holding in Krankel, mandating a preliminary inquiry into the factual basis for a defendant’s pro se claim that trial counsel provided ineffective assistance, should be extended to claims involving post-conviction counsel.” Id. at ¶ 17. The Court’s review was conducted de nov oand included evaluations of forfeiture and mootness claims brought by the petitioner, in addition the primary question regarding Krankel.

On the forfeiture issue, the Supreme Court decided to consider the mootness claim, because forfeiture applies exclusively to the parties, not the court. As such, the Court held that they may address the forfeited issues. Id. at ¶ 19. On the mootness issue, the Supreme Court agreed with Custer and rejected the State’s argument that the question was moot because petitioner had already received the requested relief. Id. at ¶ 21. The Court held that the “cursory hearing conducted by the trial court does not demonstrate that it adequately considered petitioner’s pro se claim of inadequate representation pursuant to Krankel.” Id. at ¶ 22.

On the substantive dispute on appeal, the applicability of Krankel to post-conviction counsel, the Court acknowledged that their opinion in Krankel has evolved to provide a means for defendants to assert post-trial claims that trial counsel provided ineffective assistance. However, the Court noted that the petitioner’s claim pertained to post-conviction counsel, a new question for the Court.

The Court interpreted Custer’s “largely undefined” request as a question to “determine if conflict-free counsel needs to be appointed to represent [the petitioner] at the hearing on his motion to reconsider.” Id. at ¶ 28.  The Court noted that “criminal defendants seeking relief in postconviction proceedings have no constitutional right to counsel, effective or otherwise” and are entitled to only the “level of assistance guaranteed by the Act,” widely acknowledged to be a “reasonable level.” Id. at ¶ 30. The Court further noted that this standard is significantly lower than the one mandated at trial by the state and federal constitutions. The Court further pointed to Illinois Supreme Court Rules, such as Rule 651, which sharply limited the duties of post-conviction counsel. Id. at ¶ 32.

Despite the limited guarantees afforded to petitioners in post-conviction proceedings, the petitioner relied upon the Supreme Court’s unanimous decision in People v. Johnson, 2018 IL 122227, which the court concluded “flatly fails to support petitioner’s contention that Krankel applies to pro se allegations of unreasonable assistance by postconviction counsel.” Id. at ¶ 33.

The Court also adopted the State’s argument that the extension of Krankel would magnify the potential for wasting limited judicial resources and multiply the already heavy strain Krankel places on our trial courts without any additional benefits. Id. at ¶ 35. The court found arguments made by the petitioner in response to this argument as unpersuasive because they had no measurable effect on the outcome of appeals. Id. at ¶ 39. The court concluded that “none of the benefits petitioner cites from extending Krankel to allegations that postconviction counsel provided inadequate assistance are as compelling as they were in their original posttrial context. Consequently, the analytical weight of those benefits in postconviction cases is lower than in our original Krankel calculus, while the weight of the adverse effects on available resources is necessarily higher.” Id. at ¶ 41.

Ultimately, the Supreme Court of Illinois declined Custer’s invitation to extend the post-trial motion procedures created in Krankel to allegations of unreasonable assistance by post-conviction counsel and remanded the cause to the appellate court for its initial consideration. Id. at ¶ 46.

Summary dismissal of petition was proper where appellate counsel was not ineffective for failing to argue improper sentencing factors

The appellant in People v. Todd, 2019 IL App (3d) 170153 appealed the trial court’s order summarily dismissing his pro se post-conviction petition on the grounds that the court erred because the petition presented an arguable claim of ineffective assistance of counsel. The Appellate Court of Illinois Third District affirmed the decision of the Circuit Court of Whiteside County.

Todd entered an open plea to one count of unlawful delivery of a controlled substance, which was accepted by the court. Prior to sentencing, the State produced a pre-sentence investigation report (PSI) which stated that Todd had five prior felony convictions. Id. at ¶ 3-4. As a result, at sentencing, the court found, in aggravation, that Todd had a significant history of criminal activity and a prison sentence was necessary to “deter others from committing the same crime.” Id. at ¶ 5. The court further noted the large amount of the controlled substance included in the sale and referred to it as “more than just a casual deal,” prior to sentencing defendant to 25 years’ imprisonment.

On direct appeal, appellant’s counsel unsuccessfully raised claims of ineffective assistance of counsel related assertions made by trial counsel that Todd’s plea deal include a 10-year sentencing cap; that Todd’s plea was not knowingly or voluntarily entered; that he was denied the benefit of the bargain made with the State; and that the court violated his due process rights when it denied his motion to vacate a directed finding. The court affirmed the conviction and sentence. Id. at ¶ 6.

Todd then filed a pro se post-conviction petition which alleged four claims: (1) post-trial counsel provided ineffective assistance, (2) appellate counsel was ineffective, (3) the court had violated appellant’s due process rights, and (4) the court deprived appellant of his due process rights when it considered the amount of the controlled substance as an aggravating factor at sentencing. Id. at ¶ 7. The court found the claims in the petition to be frivolous and patently without merit and summarily dismissed it. This appeal followed.

Todd argued on appeal that the trial court erroneously dismissed his pro se post-conviction petition because it presented an arguable claim of ineffective assistance of appellate counsel, who failed to argue on direct appeal that the court relied on an improper factor at sentencing. The aforementioned factor was the amount of the controlled substance sold, as noted in the pro se petition. Id. at ¶ 9.

The appellate court found that the circuit court properly dismissed the previously raised claims of ineffective assistance of trial counsel and due process violations, as the claims were barred by res judicata and waiver. Id. at ¶ 11.

As to the remaining claim, in order to proceed past the first stage of post-conviction proceedings, the court held that the ineffective assistance of appellate counsel claim must make an arguable assertion that (1) counsel’s performance fell below an objective standard of reasonableness and (2) appellant was prejudiced as a result. Id. at ¶ 12. Moreover, the court held that appellant counsel, in general, is not required to brief every conceivable issue and is not incompetent for refraining from raising an issue without merit, unless their evaluation of the merits of a claim is patently wrong. Id. at ¶ 12. The court further acknowledged that while “a factor implicit in the offense for which a defendant has been convicted cannot be used as an aggravating factor in sentencing,” legislative intent may allow such use of the factor. Id. at ¶ 13. The court looked to the plain language of the statute to determine whether use of the factor in appellant’s instance was justified.

Subsection 401(a)(2)(A) of Section 401 of the Illinois Controlled Substances Act criminalizes the offense of possessing with an intent to deliver a substance containing cocaine and provides a sentence of “not less than 6 years and not more than 30 years with respect to 15 grams or more but less than 100 grams of a substance containing cocaine, or an analog thereof.” Id. at ¶ 14. The statute’s sentencing guidelines provide “wide latitude in sentencing discretion” and explicitly allow for the consideration of the amount of the substance as an aggravating factor at sentencing.

That, taken with the additional aggravating factors in the PSI, led the appellate court to conclude that the circuit court properly considered the amount of cocaine during sentencing, and appellate counsel did not have a duty to raise the meritless sentencing issue. Id at ¶ 15.

As such, the Appellate Court of Illinois Third District ruled the circuit court did not err when it summarily dismissed appellant’s pro se post-conviction petition and affirmed the judgment of the Circuit Court of Whiteside County.