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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Appellate Court holds that trial court can dismiss petition on standing grounds at first stage

The appellant in People v. Johnson, 2019 IL App (1st) 163169 appealed the trial court’s order dismissing his pro se petition for post-conviction relief on standing grounds. The First District affirmed the decision of the trial court.

Recardo Johnson pled guilty to unlawful restraint in exchange for a sentence of two years’ imprisonment. Upon entering his plea, Johnson stated that he understood he was giving up certain rights by pleading guilty, including his right to plead not guilty and have a jury trial. Johnson confirmed that he was not threatened or promised anything in exchange for his plea. Id. at ¶ 4.

Johnson, pro se, moved to file a late postconviction petition, arguing that the age of the victim in his case was never stated in court, the court never informed him that he would need to register under the Child Murderer and Violent Offender Against Youth Registration Act, and that his plea counsel was ineffective for failing to tell him he would need to register under the Act. Id. at ¶ 6. The petition was summarily dismissed as he had not withdrawn his plea, appealed the conviction, and had already served the term of imprisonment and MSR to which he was sentenced.

The court noted that at the time of filing, Johnson was serving a two-year sentence for failing to register under the Act. Id. at ¶ 7. The circuit court concluded that the Act and its remedies are not available to petitioners who have completed their sentences and merely seeking to purge their criminal records, rendering the petition frivolous and patently without merit. This appeal followed.

On appeal, Johnson argued that the circuit court erred in dismissing the petition at the first stage on the basis of standing. The court noted this argument gave rise to two separate questions: (1) whether standing is ever an appropriate consideration at the first stage of postconviction proceedings and, if so, (2) whether, in this case, appellant’s argument that he has standing is frivolous or patently without merit. Id. at ¶ 11.

Johnson argued that standing is never an appropriate basis for dismissal at the first stage of proceedings, however, the court agreed with the State that the circuit court properly dismissed the petition based on standing because “if it is clear a defendant lacks standing, his petition is necessarily frivolous and patently without merit.” Id. at ¶ 12. The court reasoned that, in accordance with previous rulings, standing related to the “substantive virtue” of a post-conviction claim and therefore may be an appropriate consideration for first stage of post-conviction proceedings. Id. at ¶ 19.

Because the court found the trial court’s consideration of appellant’s standing proper, it considered appellant’s standing argument frivolous and patently without merit. Id. at ¶ 23. As a post-conviction petition should be summarily dismissed if it is found to be frivolous or patently without merit, the court found that the trial court had properly dismissed appellant’s petition. Id. at ¶ 29.


First District holds that adult cannot rely on Miller or Proportionate Penalties Clause to argue de facto life sentence

The appellant in People v. Handy, 2019 IL App (1st) 170213 appealed the trial court’s decision denying him leave to file a successive post-conviction petition, arguing that he met the cause-and-prejudice test. The First District ultimately affirmed the decision of the circuit court.

Dante Handy was convicted of armed robbery, home invasion, residential burglary, aggravated battery of a senior citizen, kidnapping, aggravated criminal sexual assault, and possession of a stolen motor vehicle, for which he was sentenced to  four consecutive 30-year prison terms. Handy was 18 ½ years old when he committed the crimes. As a result of violations of the single subject rule under the sentencing code, the sentence was converted to a 60-year term of imprisonment, with eligibility for mandatory supervised release at 78 ½ years. Id. at ¶ 1-4.

At trial, Handy testified that he did not ever sexually assault the victim, did not know the co-defendants had planned a robbery, did not intend to kidnap anyone, did not have a gun, and someone other than Handy held a gun to the homeowner’s head. Id. at ¶ 13. Handy testified that he fled from the co-defendants and was warned to keep his mouth closed. Handy further testified that after being arrested, the detective who questioned him threatened him, shoved him back against the mirror in the interrogation room, and pulled his braids. Handy’s testimony conflicted with all evidence and previous testimony.

At sentencing, the victims spoke in aggravation and the State argued that the defendants lacked any rehabilitative potential and had slept, laughed or joked during the court proceedings as if the matter was no big deal. Id. at ¶17. Counsel argued that Handy was less culpable than the co-defendants because of his expressed reluctance, limited participation in the sexual assault, and stated intention to kill himself. Id. at ¶ 18.

On direct appeal, Handy argued that his sentence was excessive because the court was unduly influenced by the media attention and failed to consider his rehabilitative potential based on his individual circumstances, which included the absence of an extensive criminal record, beatings from gang members and expressed remorse. Id. at ¶ 20. The sentence was ultimately converted due to a violation of the single subject rule.

In his initial post-conviction petition, Handy argued that appellate counsel failed to argue that his sentence was disproportionate and excessive in light of his young age, lack of criminal history, and rehabilitative potential. Id. at ¶ 21. The appellate court affirmed. Eight years later, Handy moved the circuit court for leave to file a successive post-conviction petition, which argued that he was deprived of due process because the truth-in-sentencing law under which his sentence was imposed was an unconstitutional statutory scheme. The motion was denied. Id. at ¶ 22.

Five years following that decision, Handy moved the circuit court to file the successive post-conviction petition at issue in this appeal. Handy’s pro se petition argued that his 60-year prison sentence was unconstitutional as applied to him under the Eighth Amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 23. Handy argued the sentence was a de facto life sentence without the possibility of parole and that the trial court failed to consider the special circumstances of his youth.

As to the “cause and prejudice test” to obtain leave to file his petition, he argued that (1) the law concerning the imposition of lengthy sentences on juveniles changed substantially after his 2003 post-conviction petition as a result of the recent decisions of Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), and People v. Davis, 2014 IL 115595, and (2) there was a reasonable probability that he would have received a shorter sentence if the trial court had correctly understood and applied the Eighth Amendment of the United States Constitution at his sentencing hearing. Id. at ¶ 23. The court denied leave to file a successive petition. This appeal followed.

The denial of Handy’s motion to file for leave to file a successive post-conviction petition was reviewed de novo. The court noted that to meet the cause-and-prejudice requirements “a defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice.” Id. at ¶ 28. Further, the court noted, leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings. Id. at ¶ 30.

As to cause-and-prejudice, Handy argued that he made the requisite showings because (1) the new constitutional rule of Miller applies retroactively to his sentence, and (2) a de facto life sentence for a youth in any case other than homicide is categorically barred under Graham. Id. at ¶ 31. Handy acknowledged that at the time of the offense, at 18 ½ years old, he was not technically a juvenile, but he nevertheless argued that Eighth Amendment protections afforded to juveniles under Miller should be extended to him. Id. at ¶ 37.

The Illinois Supreme Court drew a line at the age of 18, meaning that Miller protections do not extend to anyone who was 18 years old or older at the time of offense. Thus, the Handy’s Eighth Amendment challenge was meritless. Id. at ¶ 37. The court also refused to extend Miller principles under the proportionate penalties’ clause to appellant, as the special circumstances that had authorized such an extension in House were not present in this matter. Id. at ¶ 30.

Ultimately, while the court “recognize[d] that [appellant] is serving a harsh sentence” it concluded that he had not shown prejudice and that the trial court properly denied him leave to file his successive post-conviction petition. Id. at ¶ 42. The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.






Counsel did not provide unreasonable assistance of counsel where claims were meritless

The appellant in People v. Gallano, 2019 IL App (1st) 160570 appealed the trial court’s decision dismissing his post-conviction petition on the grounds that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c) by failing to amend the petition to include notarized affidavits from two potential witnesses. The Appellate Court of Illinois First District ultimately affirmed the judgment of the circuit court.

Gallano was found guilty at a jury trial of first-degree murder and concealment of homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. Id. at ¶ 5. The initial conviction and sentence were reversed and remanded for a new trial based on an error that occurred during jury deliberations. However, on remand, the second jury found Gallano guilty on the same offenses and the trial court imposed the same sentences. That conviction was affirmed by the appellate court. Id. at ¶ 5. Gallano unsuccessfully filed a pro se petition to vacate, which was affirmed on appeal. Gallano then filed a pro se petition for post-conviction relief, which is at issue here.

Gallano argued that the trial court in the second trial erred when it allowed a witness named Pratt to invoke his Fifth Amendment right against self-incrimination. Id. at ¶ 11. Gallano sought to introduce statements from the witness regarding jail conversations with another individual, Moretti, who Gallano alleged admitted to lying to police and had expectations of immunity in exchange for testimony against Gallano. Id. at ¶ 11. The court did not address the issue of proper invocation of Fifth Amendment rights, as the court found instead that the potential testimony would have been inadmissible hearsay at trial and would not have fallen within a recognized exception. Id. at ¶ 12. The court noted that the statement could not corroborate defendant’s self-defense theory, either.

Appellant’s pro se petition for post-conviction relief at issue in this appeal contained two contentions, XI and XII (of the 28 total), relevant to the court’s evaluation. Contention XI was that Gallano did not receive a fair trial “due to excluded evidence of a third party’s guilt.”  Id. at ¶ 16. In support, Gallano restated arguments regarding the admission of testimony from Pratt, contending that the testimony fell under an exception to the hearsay rule and corroborated his self-defense claim.

Contention XII asserted that Gallano was denied his right to a fair trial “when the State intimidated a crucial defense witness to keep him from testifying.” Id. at ¶ 17. Gallano cited an unnotarized affidavit by Moretti corroborating Gallano’s self-defense argument. Galloano argued that the State intentionally persuaded Moretti not to testify by informing the court that the State could charge him with murder. Id. at ¶ 17.

A public defender was appointed to represent Gallano. After multiple continuances, counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c), stating that she had consulted with Gallano and had not amended the post-conviction petition, as it “adequately sets forth the petitioner’s claims of deprivation of his constitutional rights.” Id. at ¶ 18. Shortly thereafter, the State filed a motion to dismiss, raising numerous defenses, including that claims XI and XII were res judicata, as they had been addressed in previous decisions; Moretti’s affidavit did not show that the State intimidated him; and the circuit court could not consider Moretti’s affidavit because it had not been notarized. Id. at ¶ 19. The motion was granted. This appeal followed.

On appeal, Gallano contended that he was denied the reasonable assistance of appointed post-conviction counsel and that his petition should be remanded for further second-stage proceedings with the assistance of new post-conviction counsel. Specifically, Gallano cited counsel’s failure to amend his petition to include notarized affidavits under Rule 651(c). Id. at ¶ 21. The second stage dismissal of appellant’s petition was reviewed de novo.

The court noted that under Rule 651(c), which entitles a petitioner to “reasonable assistance of counsel,” either the record or a certificate filed by counsel must show that counsel (1) consulted with the petitioner to ascertain his contentions of constitutional deprivation, (2) examined the record fo the trial proceedings, and (3) made any amendments to the filed pro se petitions “necessary for an adequate presentation” of the petitioner’s contentions. Of special note, the court acknowledged that “encompassed in the third duty is the duty to remedy procedural defects in a petition, which includes a requirement to remedy an invalid affidavit.” Id. at ¶ 25. Further, the court stated that the filing of a Rule 651(c) certificate by postconviction counsel averring that counsel has complied with the three requirements of Rule 651(c) creates a presumption of compliance with the rule. As such, the burden to overcome the presumption and to demonstrate counsel’s failure to substantially comply with the duties mandated by the rule falls upon the appellant. Id. at ¶ 26.

Gallano contended that he rebutted the presumption established by counsel’s certificate by showing that counsel failed to make two necessary amendments to the petition, under the third duty of Rule 651(c), by failing to properly execute the unnotarized affidavits. Id. at ¶ 28. Rather than arguing that his claims regarding the affidavits had substantive merit, Gallano argued that remand was necessary, regardless of whether the claims had merit, because of counsel’s alleged failure to comply with Rule 651(c). Id. at ¶ 29.

However, because counsel did not fail to file a certificate in this instance, counsel created a rebuttable presumption that she complied with the requirements of the rule. Further, the court noted that the Illinois Supreme Court explained in People v. Greer, 212 Ill. 2d 192, 205 (2004) that the third duty outlined in Rule 651(c) does not require post-conviction counsel to amend a petition to advance a frivolous or spurious claim on a defendant’s behalf. Id. at ¶ 30. Thus, the question of whether the claims had merit was considered “crucial to determining whether counsel acted unreasonably.”

The court found that neither claim presented by Gellano had merit, finding the first issue had already been rejected on its merits and the second claim had been forfeited because it could have been raised earlier and was unsupported by the record. Id. at ¶ 31-34. Ultimately, because the allegations raised by appellant were considered without merit, the court held that counsel did not provide unreasonable assistance when she did not amend the meritless allegation with a notarized affidavit. The court concluded that appellant had not rebutted the presumption of reasonable assistance created by the filing of a Rule 651(c) certificate and and affirmed the judgment of the Circuit Court of Cook County. Id. at ¶ 36.

This case is significant because prior to Gallano, the rule was that the case would get remanded for 651(c) compliance, regardless of the merits of claim. In other words, prejudice was presumed. The court seems to be walking that rule back in this case, which I think makes sense from a judicial economy perspective.

Court holds that petitioner does not have right to counsel (or to complain about counsel) before court grants motion for leave to file successive petition

The appellant in People v. Moore, 2019 IL App (3d) 170485, appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition on the grounds that appointed counsel provided unreasonable assistance. The Third District ultimately affirmed the judgment of the trial court.

Moore was found guilty of seven counts of first-degree murder and one count each of home invasion, aggravated criminal sexual assault, robbery, residential burglary, and arson. Appellant was sentenced to death, which was subsequently commuted by Governor George Ryan (in 2003) to a term of natural life imprisonment. Id. at ¶ 3. Thirteen years later, Moore filed a pro se motion for leave to file a successive post-conviction petition.

The petition argued that “(1) the state’s attorney lacked jurisdiction to file the indictment and prosecute defendant; (2) the statutes he is under are unconstitutional; (3) the home invasion and aggravated criminal sexual assault statutes were unconstitutional, and therefore, those charges should not have been put before the jury and violated defendant’s right to due process; and (4) his present sentence is unconstitutional.” A pro se post-conviction petition accompanied the motion for leave. The court appointed counsel to represent Moore. Id. at ¶ 5.

Appointed counsel filed an amended successive post-conviction petition asking the court to “vacate and void the Judgement and Sentence” with no legal arguments and no cause and prejudice argument. Id. at ¶ 6. No separate motion for leave was filed. Following counsel’s appointment, appellant filed several pro se motions that complained of the reasonableness of counsel’s performance. Id. at ¶ 7. Prior to considering any of the arguments contained within the post-conviction petition and subsequent motions, the court denied leave, finding defendant had not satisfied the cause-and-prejudice test. Id. at ¶ 7. Moore appealed.

Moore argued on appeal that appointed counsel provided unreasonable assistance at the leave to file stage of the successive post-conviction proceeding. The court noted that the trial court had not erred in denying Moore leave to file the petition, as in order to obtain leave of the court, Moore had to show cause for his failure to bring the claim in his initial post-conviction petition and prejudice resulting from that failure. Id. at ¶ 10. The court further expanded that appellant had failed to support his claims of cause-and-prejudice with any assertions of fact. The court found the assertions of cause-and-prejudice, made absent any citations to relevant case law, to be insufficient to warrant leave to file a successive post-conviction petition. Id. at ¶ 11.

As to Moore’s assertion of unreasonable assistance of counsel, the court held that Moore was not entitled to counsel at this stage of the proceedings and thus, “cannot complain of the reasonableness of counsel’s assistance as he did not have the right to counsel.” Id. at ¶ 12. The court held that because Moore “had not yet reached the first stage, let alone the second stage [of post-conviction proceedings], the court’s appointment of counsel was both premature and unsupported by the Act.” Id. at ¶ 14. The appellate court affirmed.

Appellate Counsel was not Ineffective for Failing to Brief All Issues in Motion for New Trial

The appellant in People v. Borizov, 2019 IL App (2d) 170004 appealed the decision of the trial court dismissing his pro se post-conviction petition, which alleged ineffective assistance of appellate counsel for failing to raise each issue in the motion for a new trial. The Appellate Court of Illinois Second District affirmed the decision of the circuit court.

Borizov was convicted of three counts of first-degree murder and one count of solicitation to commit murder. Following conviction, Borizov filed a motion for new trial, alleging 31 trial errors. One of the alleged errors was that a juror should have been dismissed after informing the court that she went to church with a cousin of one of the victims in the case. Id. at ¶ 3. The trial court held a hearing on the motion and denied it before sentencing Borizov to three consecutive terms of natural life in prison for the murders and a consecutive term of 30 years imprisonment for the solicitation charge.

On direct appeal, appellant contended, through counsel, that a new trial should be granted due to a “pervasive pattern of prosecutorial misconduct.” Id. at ¶ 4. The appellate court held that although the prosecution committed several instances of misconduct, the evidence was not closely balanced, and the prosecution did not engage in a pervasive pattern of prosecutorial misconduct warranting a new trial. Id. at ¶ 4. Borizov then filed a pro se petition under the Post Conviction Hearing Act alleging ineffective assistance of appellate counsel relating to appellate counsel’s alleged failures to consult with trial counsel regarding his decision to raise only one issue at the time of trial and failure to consult with Borizov regarding other issues. Id. at ¶ 5. The trial court summarily dismissed the petition, characterizing the petition as “non-specific, bald and conclusory” and failing to specify prejudice resulting from any alleged error, as required under Strickland. Id. at ¶ 6. This appeal followed.

On appeal, Borizov argued that appellate counsel’s failure to raise the preserved structural error of the juror’s implied bias is a claim of constitutional dimension with an arguable basis in law and fact. Id. at ¶ 9. The court noted that the Strickland test applies to claims of ineffective assistance of appellate counsel and thus applies in this instance. Id. at ¶ 13. As such, the court held that Borizov must allege facts demonstrating that the alleged failure was objectively unreasonable and prejudiced the defendant. Id. at ¶ 14. Moreover, the court noted appellate counsel is not required to brief every conceivable issue on appeal, and it is not incompetence for counsel to refrain from raising issues that, in his or her judgement, are without merit.

The Appellate Court noted that counsel did in fact raise issues regarding prosecutorial misconduct, arguing a pervasive pattern of prosecutorial misconduct as a ground for a new trial. Moreover, counsel specifically raised issues about the introduction of irrelevant and prejudicial evidence. Id. at ¶ 17-20. As a result, the court found appellants claims that counsel raised none of the issues in his motion to be patently false. Additionally, the court noted the impossibility of gauging the precise basis for the claim that counsel’s performance fell below an objective standard of reasonableness, meaning that the petition lacked grounds for showing sufficient prejudice. The court disagreed with Borizov that he had raised the gist of a constitutional claim. Id. at ¶ 21. The court further noted that, even if they could, the claim would still fail because of the aforementioned requirements for counsel under Strickland.

On the specific issue related to the potentially biased juror, the court held “To find that the trial court’s decision here to allow Juror 189 to remain impaneled amounts to structural error would be fanciful at best. The record reveals that the trial court went to great lengths to ensure that Juror 189 understood her role as an impartial juror. Further, her relationship to a cousin of the victims is insufficient to show that defendant suffered any prejudice, as all the record reflects is that Juror 189 and the cousin attended the same church.” Id. at ¶ 32.

Ultimately, the Second District held that Borizov’s petition lacked an arguable basis in law or fact, as it was completely contradicted by the record. As such, the court affirmed the judgement of the Circuit Court of DuPage County.




Appellate Court Questions Whether Appellate Defender’s Office Should Handle Post-Conviction Appeals

The basic facts of People v. Buchanan, 2019 IL App (2d) 180194 are not very notable. The defendant was convicted of first degree murder and sentenced to life imprisonment. The defendant later filed a 2-1401 petition, alleging that his conviction and sentence were void because an associate judge presided over his case. The petition was dismissed, the defendant appealed, and the Office of the State Appellate Defender (OSAD) was appointed.

OSAD then moved to withdraw in the Appellate Court under Pennsylvania v. Finley and People v. Lee, arguing that Buchanan’s claim was properly dismissed by the trial court. What the Appellate Court said in dicta in response to OSAD’s motion was very notable, though:

“OSAD should have moved to withdraw not under Finley and Lee, but on the ground that the trial court erred in appointing it. Section 10(a) of the State Appellate Defender Act (725 ILCS 105/10(a) (West 2016)) “clearly limits appointment of [OSAD] to appeals from criminal and delinquent minor proceedings” (Alexander v. Pearson, 354 Ill. App. 3d 643, 646 (2004)). Accordingly, a trial court has no authority to appoint OSAD to an appeal from a civil proceeding. See id. at 647 (habeas corpus). “[A]n action brought under section 2- 1401 is a civil proceeding *** even when it is used to challenge a criminal conviction or sentence.” People v. Vincent, 226 Ill. 2d 1, 6 (2007). Thus, here, there was no statutory ground for the trial court’s appointment of OSAD, which should have moved to withdraw on that basis. In light of the “tremendous workload faced by OSAD” and the oft-repeated concerns about the resulting delays (People v. Cisco, 2019 IL App (4th) 160515, ¶ 46), OSAD should ensure that it allocates its scarce resources only to appeals to which it is validly appointed.”

Appeals from 2-1401 petitions and post-conviction petitions (which are also civil in nature) constituent a very significant portion of OSAD’s case load. The Second District suggests here that OSAD should not be accepting these cases because they are civil in nature. The court rarely comments on such issues, especially on its own initiative. It will be interesting to see if the court continues to comment on these issues moving forward.

Ill. Sup. Ct. holds that State’s motion to reconsider sentence could not be heard after defendant filed notice of appeal

The appellant in People v. Abdullah, 2019 IL 123492 appealed the trial court’s order denying his petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure. The Supreme Court reversed and remanded the decision of the circuit court, with directions.

Abdullah was charged and convicted of first degree murder, attempted first degree murder, and aggravated battery with a firearm in June 2005. Id. at ¶ 3. Abdullah was sentenced to concurrent prison terms of 40 years (for first degree murder) and 20 years (for attempted first degree murder). Shortly thereafter, the State filed a Motion to Impose Mandatory Minimum and Mandatory Consecutive Sentence, seeking a minimum 45-year sentence for the first degree murder conviction (with a 25 year firearm enhancement). Id. at ¶ 4. Appellant filed a notice of appeal, which was stricken following argument from the State that the initial sentences were invalid and that the appeal could not be filed before a valid sentence was imposed. The trial court re-sentenced Abdullah, imposing consecutive prison terms of 50 years for first degree murder and 31 years for attempted first degree murder, including a 25-year firearm enhancement for both offenses. Id. at ¶ 6. The sentences were then reduced by the trial court to an aggregate 76 years of imprisonment. On direct appeal, the trial court affirmed the convictions and sentences and subsequently dismissed appellant’s petition filed under the Post-Conviction Hearing Act. Id. at ¶ 7.

In 2014, Abdullah filed a pro se petition, arguing that the 25-year and 20-year enhancements to his sentences violated ex post facto laws because they was unconstitutional at the time of his offense under People v. Morgan, 2013 IL 2d 470 (2003), and deprived him of due process because they were based on facts not alleged in the charging instrument and not submitted to the jury, nor proved beyond a reasonable doubt. Id. at ¶ 8. Abdullah also filed a supplemental argument, arguing that the jury was provided fraudulent instructions regarding consecutive sentences. The trial court conceded it had erred in imposing the firearm enhancements without the State charging them or presenting them to the jury, but found the error harmless and denied the petition. Id. at ¶ 9. Abdullah appealed again, arguing that the increased sentences were void because 1) he had filed a timely notice of appeal, the circuit court lacked jurisdiction to re-sentence him on both counts and increase his sentences, and 2) under Morgan, the firearm enhancement for attempted murder was void ab initio and could not be applied to him even after Morgan was overruled in People v. Sharpe, 216 Ill 2d 481 (2005). Id. at ¶ 10. The appellate court rejected these arguments and affirmed his modified sentences. Id. at ¶ 11. Abdullah then appealed to the Illinois Supreme Court.

The focus of the Supreme Court’s review of Abdullah’s appeal was whether the circuit court properly denied the petition filed under section 2-1401 of the Code of Civil Procedure. Abdullah argued that because Rule 606(b) only directs trial courts to strike notices of appeal, his timely filed notice conferred jurisdiction on the appellate court (despite the State’s pending motion seeking a sentence increase). Id. at ¶ 15. Thus, Abdullah contended that the subsequent sentencing orders were void because the trial court lacked jurisdiction to modify his sentences.

In the alternative, Abdullah restated his argument that the firearm enhancements were unconstitutional and void under Morgan. The State countered that no statute or rule prohibits it from filing a post-trial motion to correct a sentence, and therefore, Rule 606(b) requires the trial court to strike a notice of appeal following a motion to increase sentence. The State also restated its argument about the constitutionality of the firearm enhancement, yet conceded that the 20-year enhancement on the attempted murder charge should be vacated on ex post facto grounds. Id. at ¶ 16.

The Supreme Court determined that a proper sentence, in light of the concession by the State, depended upon whether the subsequent sentencing orders were void for a lack of jurisdiction by the trial court. Id. at ¶ 18. The Supreme Court noted that “a timely notice of appeal is the only jurisdictional step required to confer jurisdiction upon the appellate court,” yet acknowledged an exception listed in Rule 606(b), which states that “any notice of appeal filed before the entry of the order disposing of all pending post-judgement motions shall have no effect and shall be stricken by the trial court.” Id. at ¶ 20-21. In response, Abdullah contended that the exception only applied to instances of post-trial or post-sentencing motions filed by the defense, not the State. As such, Abdullah argued that the State cannot rely upon this exception. The Supreme Court agreed, and determined that the State’s motion was not permitted, and therefore, did not qualify as an exception to the transfer of jurisdiction caused by Abdullah filing a timely notice of appeal. Id. at ¶ 26.

Ultimately, the Supreme Court held that the State’s unauthorized motion to reconsider the sentence had no effect on the jurisdictional impact of appellant’s perfected appeal. Moreover, the trial court’s orders entered after the timely notice of appeal had been filed are void. The Supreme Court found that the circuit court erroneously dismissed the section 2-1401 petition and that the appellate court erroneously affirmed that decision. Id. at ¶ 34. As a result, the sentences entered in November 2005 and modifications in January 2006 were to be vacated, resulting in reinstatement of the original sentences. Id. at ¶ 35.

The Supreme Court reversed and remanded to the circuit court with directions to grant the section 2-1401 petition, vacate the sentencing orders, and reinstate the original sentencing judgment. Id. at ¶ 39.

Illinois Supreme Court holds that trial court is not required to conduct Krankel inquiry unless it is initiated by the defendant

In People v. Bates, 2019 IL 124143, the Illinois Supreme Court was asked to decide whether statements made by counsel during a hearing on a motion for new trial, stating his surprise at the depth of evidence introduced and admission that he would have had the evidence tested by experts if he’d known the depth, constituted an admission of ineffective assistance of counsel requiring a Krankel hearing.

Bates was originally arrested and charged with home invasion, aggravated criminal sexual assault, and other crimes arising from two separate incidents. Id. at ¶ 3. The state alleged crimes against two separate victims and tried each case separately. Bates was represented by a public defender for one of the cases and private counsel for the other. Id. at ¶ 4. At trial for the crimes against A. P. (the proceeding in which Bates was represented by private counsel), the State moved in limine to introduce evidence of the second assault against C. H., pursuant to section 115-7.3(b) of the Code of Criminal Procedure. Id. at ¶ 4. Counsel subsequently moved for a continuance to evaluate the “voluminous” discovery documents and the court appointed  DNA expert to review the DNA testing conducted by the Illinois State Police. Counsel also moved for reconsideration of the order permitting the State to introduce the evidence, arguing that defendant could not receive a fair trial if the evidence was introduced. Id. at ¶ 5-6.

At trial, counsel made conflicting and inconsistent statements regarding the evidence and facts in the C.H. case. Counsel stated that he assumed the evidence and facts in the C.H. case were “basically correct,” yet should be considered by the jury as “not much,” and just an “accusation.” Id. at ¶ 6-7. Both victims, as well as state-appointed DNA expert, testified at trial. DNA matches, or near matches, were testified to by the State’s expert. The defense presented their own DNA expert, who challenged the conclusiveness of the State’s expert’s findings. Id. at ¶ 10. In closing arguments, counsel argued that the jury should not put much weight on the “case within a case” and stated there was no review by any DNA experts. Appellant was found guilty of home invasion and two counts of aggravated criminal sexual conduct.

Bates subsequently moved for a new trial, arguing that the court erred by denying his motion in limine to exclude the other crimes evidence and in granting a motion by the State to exclude evidence regarding A.P.’s sexual history. Id. at ¶ 11. At the hearing for that motion, counsel stated that he was not capable of doing “as good a job in defending [his] client since it wasn’t [his] case,” that he was “taken by surprise at the depth of the evidence and testimony brought by the State’s attorney,” and would have asked for review by experts had he been thinking about that case. Id. at ¶ 11. The court denied the motion.

On appeal, Bates argued that he did not receive effective assistance of counsel, that he was denied his constitutional right to confront witnesses against him, that he should have received a new trial because the State made improper statements in its closing arguments, that the amount of other crimes evidence deprived him of a fair trial, and that the trial court erred when it failed to conduct a Krankel hearing. The appellate court affirmed. Id. at ¶ 12. The Supreme Court granted PLA.

Bates argued in the Supreme Court only that the trial court erred in failing to conduct a Krankel hearing, alleging that counsel’s statements at oral argument for the motion for a new trial constituted an admission that he neglected the case. Id. at ¶ 14. The court noted that Krankel requires the court to inquire into a claim of ineffective assistance of counsel, so long as the claim is clearly raised with the court. Id. at ¶ 15. Further, the court acknowledged efforts and statements made by counsel confirming he had not thoroughly evaluated the other crimes evidence, that he was not the attorney for that proceeding, and counsel’s requests made to the jury not to place weight on that evidence. Additionally, the court noted that the evidence in the C. H. case was “much stronger” than that of the A. P. case. Id. at ¶ 17-18.

Bates argued that the trial court should have treated the statements at the hearing for the motion for a new trial as an admission of neglect and conducted a Krankel hearing. Appellant cited People v. Willis, People v. Williams, and People v. Hayes in support. In response, the appellate court noted that the court has never held that a Krankel hearing may be triggered by a defense counsel’s representations in the absence of a pro se motion, citing People v. McGrath. Id. at ¶ 21. The Supreme Court held that all cited cases, but for Williams, Hayes, and McGrath, were distinguishable in circumstance and fact. Id. at ¶ 31.

Ultimately, the Supreme Court agreed with the holdings of McGrath and the appellate court, which stated that if a defendant fails to raise a pro se claim of ineffective assistance, there is no reason for the trial court to conduct a Krankel hearing. Id. at ¶ 31-32. The court explained to hold otherwise would subject the trial court to an unworkable standard requiring that it scrutinize every statement and action by counsel, including privileged matters.

As such, the Supreme Court affirmed the holding of the appellate court, yet modified it slightly to require a trial court to inquire into counsel’s effectiveness “only upon a clear claim of ineffective assistance by a pro se defendant or by an attorney at the defendant’s direction.” The court found that appellant find not raise a claim of ineffective assistance nor did the record indicate that he had directed counsel to make such a claim. Thus, the court was not required to hold a Krankel hearing. Id. at ¶ 36.