Post-conviction counsel’s motion to withdraw was insufficient when it didn’t address all claims in pro se petition

The Second District determined in People v. Moore, 2018 IL App (2d) 170120 (June 21, 2018) that post-conviction counsel’s motion to withdraw was improperly granted because it did not address all claims in the petitioner’s pro se petition. The defendant in Moore filed a pro se post-conviction petition that exceeded 500 pages. The trial court advanced the petition to the second stage, and post-conviction counsel was appointed.

Post-Conviction counsel is permitted to file a motion to withdraw pursuant to People v. Greer, 212 Ill. 2d 192 (Ill. 2004) if, after reviewing the pro se petition, post-conviction counsel determines that all claims contained in the pro se petition are frivolous. Post-conviction counsel is required to explain in his or her motion to withdraw why every claim in the pro se petition is frivolous.

Moore’s post-conviction counsel filed a Greer motion in this case, and the the court granted the motion after a brief hearing. The State then moved to dismiss the petition, and the State’s motion was granted.

Moore argued on appeal, among other things, that the Greer motion should not have been granted because the Greer motion did not address all claims in the petitioner’s 500-plus-page pro se petition. The appellate court agreed, indicating that post-conviction counsel does not execute his duties under Supreme Court Rule 651(c) when he to she fails to address all claims in the pro se petition in the Greer motion. The case was remanded for 651(c) compliance and the appointment of new counsel.

Defendants who hire private post-conviction counsel are not entitled to reasonable assistance? (People v. Cotto, 2015 IL App (1st) 123489)

People v. Cotto, 2015 IL App (1st) 123489 (February 11, 2015) Cook Co., 3d Div. Affirmed. Defendant Jesus Cotto was convicted of armed robbery following a bench trial in 2008. He was sentenced to natural life imprisonment under Illinois’ habitual criminal sentencing scheme. His conviction and sentence were affirmed on appeal in June of 2009. Cotto then filed a post-conviction petition through retained counsel on September 28, 2011. Cotto asserted various claims of ineffective assistance of trial and appellate counsel in his petition.

The Court docketed the defendant’s petition on November 28, 2011. On March 30, 2012, the State filed a motion to dismiss the defendant’s petition, arguing that “the petition was filed more than six months after the appellate decision was issued and that defendant had failed to present facts to suggest that the untimely filing was not due to his culpable negligence.” ¶ 5. “On August 17, 2012, defense counsel filed a response to the State’s motion in which he asserted that the petition was timely filed because trial counsel failed to inform defendant about the June 3, 2009 appellate decision and that the attached envelope, postmarked September 4, 2009, proved that the decision was sent to defendant’s mother, rather than him, and that it was mailed more than 30 days after the decision was issued. Counsel maintained that defendant was incarcerated at the time of his appeal and that the delay in filing the petition was not due to any negligence on defendant’s part, but was the result of the ineffectiveness of trial counsel, who failed to timely communicate with him about his appeal.” ¶ 6.

A hearing was held on the State’s motion to dismiss, where both the parties and the Court focused on the merits, or lack thereof, of the substantive claims raised in the defendant’s petition, without defense counsel addressing the timeliness issue. The court indicated that it had reviewed the defendant’s claims and that they were unsupported by the record or the law. The Court granted the State’s motion to dismiss while seemingly failing to address the timeliness issue, either. Cotto appealed.

The defendant abandoned his substantive claims on appeal, thereby forfeiting their appellate review. “Instead, defendant solely claims that his retained postconviction counsel failed to provide him reasonable assistance with his petition because he failed to contest the State’s assertion that the untimely filing of his petition was due to his culpable negligence.” ¶ 9. The State responded that “the Act does not require reasonable assistance of privately retained counsel, and thus defendant failed to state a cognizable claim on appeal,” relying on People v. Csaszar, 2013 IL App (1st) 100467, which presents the exact factual scenario in Cotto. ¶ 10 “In Csaszar, defendant hired a private attorney to draft and file his postconviction petition, alleging various claims of ineffective assistance of counsel. The State filed a motion to dismiss the petition, which was subsequently granted. Csaszar, 2013 IL App (1st) 100467, ¶¶ 12-13. On appeal, defendant did not contest the dismissal of his petition on the merits, but argued instead that privately retained counsel did not provide him reasonable assistance. Csaszar, 2013 IL App (1st) 100467, ¶ 15. There, we held that although a pro se defendant had a right to reasonable assistance from appointed counsel, neither the Act nor case law supported the claim that the State was required to provide reasonable assistance of counsel for any petitioner able to hire his own postconviction counsel, and therefore defendant failed to state a cognizable claim for relief. Csaszar, 2013 IL App (1st) 100467, ¶¶ 18, 25” ¶ 10.

The Cotto court rightfully found Csaszar to be directly on point on the issue before it. Accordingly, the Cotto court held that the dismissal of the defendant’s petition was proper.

A defendant has no constitutional right to assistance of counsel in post-conviction proceedings. See People v. Guest, 166 Ill.2d 381, 412 (Ill. 1995). Rather, the right to counsel is statutory under the Act. Because the right to counsel in post-conviction proceedings is wholly statutory (see 725 ILCS 5/122–4 (West 1998)), post-conviction petitioners are entitled only to the level of assistance provided by the Post–Conviction Hearing Act. People v. Turner, 187 Ill. 2d 406, 410 (Ill. 1999), citing People v. Flores, 153 Ill.2d 264, 276 (Ill. 1992). It is well settled that the Act requires counsel to provide a “reasonable level of assistance” to petitioners in post-conviction proceedings. Id. (citations omitted). To that end, Supreme Court Rule 651 (c) outlines the specific duties of appointed counsel in post-conviction proceedings. Rule 651(c) requires that the record in post-conviction proceedings demonstrate that appointed counsel “has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Id., citing 134 Ill.2d R. 651(c). But Rule 651(c) applies only when the petitioner files his original post-conviction petition pro se, and not when the petitioner obtains the assistance of retained counsel. People v. Csaszar, 2013 IL App (1st) 100467, ¶ 16 (citations omitted).

The Csaszar court held that “no authority in either the Act or case law to support the claim that the State must assure that a defendant obtains from retained counsel reasonable assistance in postconviction proceedings. We find that the State has no duty to provide counsel, and no duty to provide reasonable assistance of counsel, for any petitioner able to hire his own counsel.” ¶ 18, citing 725 ILCS 5/122–1 et seq. (West 2006).

The defendant in Csaszar arguedthat the General Assembly’s decision to afford indigent petitioners reasonable assistance of counsel, but not to assure reasonable assistance to postconviction petitioners who hire their own attorneys, violates his right to equal protection of the laws. Csaszar, 2013 IL App (1st) 100467 at ¶ 19. But the court disagreed, noting that “States do not violate the equal protection clause when they provide benefits to indigents that they do not provide to persons with sufficient means to purchase the benefits. Carmichael, 301 U.S. at 515, 57 S.Ct. 868. The classification of prisoners as indigent or non-indigent, and the provision of counsel only to the indigent, bears a fair relationship to a legitimate public purpose of providing assistance of counsel for postconviction petitioners unable to retain private counsel. See Plyler, 457 U.S. at 216, 102 S.Ct. 2382. The State’s decision to provide competent counsel only for indigent defendants, while leaving postconviction petitioners who can afford counsel responsible for finding competent counsel, does not violate the right of the nonindigent to equal protection of the laws.” Id.

I will be the first to admit that I really don’t understand why a defendant who retains private counsel is not guaranteed reasonable assistance of counsel under the Act. With the constitutional right to counsel outside of the statutory framework of the Act, “the right to effective assistance of counsel is absolute, even when private counsel is retained.” See People v. Joseph, 46 Ill. App. 3d 835, 836 (3d Dist. 1977), citing People v. Allen, 132 Ill.App.2d 1015 (3d Dist. 1971) (emphasis added). In other words, counsel’s performance at trial an on appeal is measured by the same standard, whether counsel’s client is indigent or not. I fail to see how it should be any different under the Act. “Reasonable assistance” of counsel is merely a level assistance that counsel is required to render to defendants in proceedings brought pursuant to the Act. Like the constitutional standard of “effective assistance” of counsel, the standard by which a post-conviction attorney’s performance is measured should not be dependent on whether his client is indigent or not. Those two variables should, at least in theory, bear no relationship, as there are sound public policy reasons for treating indigent and non-indigent clients alike. As with the constitutional right to the effective of assistance of counsel at trial and on appeal, a defendant in a post-conviction proceeding should be entitled to the reasonable assistance of counsel, whether he is indigent or not.

Rule 651(c) only requires counsel to consult with client about initial petition, not subsequent pro se filings (People v. Bell, 2014 IL App (3d) 120637)

People v. Bell, 2014 IL App (3d) 120637 (August 21, 2014) Peoria Co. Affirmed. Defendant in this case filed a pro se petition for post conviction relief which advanced to second-stage proceedings. Post-conviction counsel was appointed and filed an amended petition accompanied by a Rule 651(c) certificate. Defendant then filed a series of six pro se amendments to his original pro se petition, introducing new claims not made in the original petition. The trial court struck defendant’s pro se amendments and subsequently dismissed the petition. Defendant appeals, arguing that appointed counsel did not comply with the requirements of Rule 651(c). Bell at ¶ 1.

Unlike at the trial court level and on appeal, defendant’s have no constitutional right to the effective assistance of counsel in connection with post-conviction petitions. The right to counsel, if the defendant’s pro se petition advances to second-stage proceedings, is statutory under the PCHA. Because the defendant is not constitutionally entitled to appointment of counsel under the PCHA, he also therefore has no Sixth Amendment constitutional right to the effective assistance of counsel under Strickland. Instead, The Act requires that counsel provide “a reasonable level of assistance” (distinguishable from effective assistance under Strickland) to petitioners in post-conviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42 (2007). Bell at ¶ 10.

Appointed counsel on appeal certifies that they have provided reasonable assistance to the petitioner by filing what is called a 651(c) certificate, which certifies that defense counsel has consulted with the petitioner to ascertain his or her contentions of deprivation of constitutional rights, has examined the trial court record and report of proceedings, and has “made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c).

In this case, appointed counsel filed his 651(c) certificate. However, the petitioner claimed that appointed counsel nonetheless failed to comply with 651(c) by not consulting with the defendant about his subsequent filings. The Bell court, however, disagreed, holding that the spirit, if not the letter, of 651(c) requires defense counsel only to consult with the petitioner about claims made in the original pro se petition which caused the case to advance to second-level proceedings, where counsel was appointed. Requiring defense counsel to consult with the petitioner about every subsequent filing that he made would be unduly burdensome to defense counsel, according to the Bell court.

I agree with the Bell court to the extent that it can be very difficult for appointed counsel to effectively represent a petitioner who insists on filing numerous pro se filings after the case has advanced to second-stage proceedings, for both strategic (controlling the record) and practical (keeping track of the additional filings) reasons, but I disagree with the court’s reasoning that “to agree with defendant’s interpretation of Rule 651(c) would be to impose upon public defenders the burden of consulting with postconviction petitioners each time the petitioner raised a new issue, whether through pro se amendments or letters to counsel. This responsibility would be limited only by the restraint of the incarcerated petitioner. In the present case, counsel would have been required to meet with defendant six separate times. Counsel could have held one consultation following the sixth pro se amendment, but nothing would prevent defendant from filing a seventh, eighth, and ninth amendment after that. Requiring that appointed counsel respond to every contact made by incarcerated petitioners would be inefficient at best and impossible at worst.” ¶ 16.

Counsel doesn’t need to “meet with the defendant” each time the defendant sends him a letter or files something. Counsel can still fulfill his duties under 651(c) by sending the defendant a letter or calling the defendant about the issue he wants to raise. See Ill. S. Ct. R. 651(c) (“the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights.”). It doesn’t take much effort to at least consult with the defendant by mail about the issue that he wants to raise. Defense counsel doesn’t have to raise the issue in the amended filing; but I think both defendant and defense counsel are better off if they at least discuss it by mail. The defendant is better off because he feels like he is being represented (reasonably, effectively, or otherwise) and participating in his own defense, and the defense lawyer is better off because his client trusts that his attorney is acting in his best interests. Furthermore, that conversation could lead to a meritorious issue being raised that was not raised in the additional petition. This would benefit all.