Being represented by counsel on post-conviction helps to avoid waiver issues. (People v. Reed, 2014 IL App (1st) 122610)

People v. Reed, 2014 IL App (1st) 122610 (December 31, 2014) (Court opinion corrected 2/3/15.) Cook Co., 5th Div. Affirmed. A jury found defendant Devin Reed guilty of first-degree murder, armed robbery, and residential burglary. Reed’s murder conviction and natural life sentence were affirmed on appeal, but his convictions and sentences for armed robbery and burglary were reversed. Reed then filed a pro se post-conviction petition, which was dismissed by the trial court at first-stage as being frivolous and patently without merit. This appeal followed.

Reed’s post-conviction petition claimed that trial counsel was ineffective for failing to file a motion to suppress statements that Reed made to an ASA. Reed also asserted other garden variety claims of ineffective assistance of counsel. Reed also claimed that the trial court erred by allowing the State to engage in various forms of misconduct. Reed claimed that appellate counsel was ineffective because, among other claims, appellate counsel failed to raise the ineffective assistance of trial counsel issues, the trial court’s errors, and the prosecutor’s alleged misconduct.

On appeal, “Reed first contends his appellate counsel was ineffective in failing to argue the prosecutors and police failed to honor Reed’s requests to remain silent and for counsel, and interrogated him in violation of his fifth amendment rights. Reed also contends his appellate counsel was ineffective for arguing that, pursuant to Smith and People v. Bailey, 2013 IL 113690, the treatment of his general guilty verdict as a verdict of felony murder made him legally ineligible for a natural life sentence.” ¶ 41.

The State responded that “Reed’s petition not only fails to state the gist of these claims, but also fails to raise them at all, resulting in forfeiture of these claims on appeal.” ¶ 43. Section 725 ILCS 5/122-3 address the issue of waiver: “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.”; People v. Pendleton, 223 Ill. 2d 458, 475 (2006) (reiterating that a claim not raised in a postconviction petition cannot be raised for the first time on appeal). This court lacks the authority to excuse an appellate forfeiture caused by the failure of a litigant to include issues in his or her postconviction petition. See People v. Jones, 213 Ill. 2d 498, 507-08 (2004). “As our supreme court noted in Jones, attempts by counsel to raise claims for the first time on appeal from the first-stage dismissal of a postconviction petition are understandable, but simply not permitted under the Act.” ¶ 43.

Reed’s ineffective assistance of appellate counsel claims were argued on appeal for the first time, instead of being brought in his initial pro se petition. As our supreme court noted in Jones, attempts by counsel to raise claims for the first time on appeal from the first-stage dismissal of a postconviction petition are understandable, but simply not permitted under the Act: “[T]he typical pro se litigant will draft an inartful pleading which does not survive scrutiny under the ‘frivolity/patently without merit’ standard of section 122-2.1, and it is only during the appellate process, when the discerning eyes of an attorney are reviewing the record, that the more complex errors that a nonattorney cannot glean are discovered. The appellate attorney, not wishing to be remiss in his or her duty, then adds the newly discovered error to the appeal despite the fact that the claim was never considered by the trial court in the course of its ruling. *** [T]he attorney is zealously guarding the client’s rights and is attempting to conserve judicial resources by raising the claim expeditiously at the first available chance. These goals are laudable, but they nonetheless conflict with the nature of appellate review and the strictures of the Act.” Jones, 213 Ill. 2d at 504-05. ¶ 43.

Accordingly, the Reed court held that “Reed’s petition does not clearly set forth the claims of ineffective assistance of trial counsel now raised on appeal, resulting in forfeiture of these claims on appeal” for reasons stated above. The court then engaged in an alternative discussion of the merits of defendant’s claims, but the merits are purely academic at this point because the defendant’s claims are barred by waiver.

“In sum, the issues Reed’s counsel attempted to raise on appeal are forfeited because Reed failed to raise them in his postconviction petition. Even if Reed’s claims were not forfeited, they are frivolous and patently without merit, because Reed failed to attach supporting material and appellate counsel was not required to anticipate Bailey, which was decided after Reed’s direct appeals had concluded. In addition, Reed’s natural life sentence is not void because our supreme court’s decision in Bailey announced a new rule of constitutional procedure that does not apply retroactively to these postconviction proceedings. For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.” 
¶ 94.

This case underscores the importance of filing counseled post-conviction petitions. Not only does a counseled post-conviction petition automatically survive summary dismissal (where the trial court dismisses the petition without input from counsel, argument, further briefing, etc.), but it also provides the defendant with an opportunity to avoid forfeiture of important issues on appeal that pro se defendants typically cannot articulate, whether it is through a lack of skill and experience, a lack of resources and access to information, or both. Appellate lawyers—especially OSAD lawyers—are very, very adept at spotting and developing issues from the record, but as Reed shows, this exercise will be rendered largely academic if the defendant’s claims are not properly preserved and articulated at the trial court level, before it reaches the desk of the appellate practitioner.

Successive post-conviction petitions must meet cause-and-prejudice test (People v. Wilson, 2014 IL App (1st) 113570)

People v. Wilson, 2014 IL App (1st) 113570 (September 12, 2014) Cook Co., 5th Div. Affirmed. The defendant in Wilson was convicted of first degree murder following a shooting. Wilson was subsequently sentenced to 60 years in prison. On May 28, 2009, defendant filed an initial pro se post-conviction petition claiming that trial counsel was ineffective for failing to file a notice of appeal. The Petition was supported by an affidavit from trial counsel admitting error. The trial court granted defendant’s post-conviction petition based on this single issue and allowed defendant to file a late notice of appeal. The conviction and sentence were affirmed on appeal.

Defendant filed a second pro se post-conviction petition on June 24, 2011. Wilson’s second post-conviction petition raised numerous claims of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise various claims in defendant’s direct appeal. The trial court dismissed the second petition, finding that defendant’s second petition was a successive petition under the Act and failed to meet the “cause-and-prejudice” test necessary for obtaining leave to file a successive petition under the Act. Specifically, the circuit court found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert the claims earlier because “[h]ad they been presented in the initial petition, there is scant probability that petitioner would have prevailed.” Wilson at ¶ 27. Defendant appealed the trial court’s dismissal of the petition, arguing that the second post-conviction petition was not a “successive petition” because he only sought to reinstate his right to appeal, and that his second petition presented a gist of a constitutional claim such that advancement to second stage proceedings was required.

Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f) (West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f) (West 2010). To demonstrate cause, a defendant must identify “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Id. To establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id. Wilson at ¶ 33.

Defendant relied on People v. Little, 2012 IL App (5th) 100547, ¶ 19, to support his proposition that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive petition under section 122-1(f) of the Act. Wilson at ¶ 34. The State contended that Little was not implicated in this case because the circuit court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill. 2d 1 (2009). Wilson at ¶ 35.

The appellate court agreed with the defendant that Little controlled under the facts in this case, and that because defendant’s initial petition only sought to restore his right to appeal, the second petition should have been treated as a first petition, and that, accordingly, defendant was not required to satisfy the procedural prerequisites for filing a successive petition in order for his claims to be considered on the merits.

However, the appellate court can affirm on any basis set forth in the record. People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Reviewing the claims set forth in defendant’s Petition, the appellate court agreed with the trial court that they were frivolous and patently without merit, such that first stage dismissal was still appropriate. In sum, even though the trial court erred by characterized defendant’s second petition as a successive petition, the trial court correctly dismissed the petition based on the merits, or lack thereof.

File the notice of appeal now, and ask questions later? (People v. Terefenko, 2014 IL App (3d) 120850)

People v. Terefenko, 2014 IL App (3d) 120850 (July 24, 2014). Will Co. Appeal dismissed. (Modified upon denial of rehearing 9/12/14.). The defendant, a Polish national, plead guilty to burglary and attempted burglary, received TASC probation, and then violated probation. He was then sentenced to 42 months imprisonment. Defendant was released to ICE, which began removal proceedings.

The defendant filed a post-conviction petition claiming that his attorney failed to advise him of immigration consequences of the plea based on Padilla v. Kentucky. The court dismissed the petition, but the appellate court remanded the case for an evidentiary hearing. By the time the case was remanded for an evidentiary hearing on July 13, 2012, defendant had been deported to Poland and did not appear. He was, however, present by appointed counsel. The court denied the defendant’s petition on August 20, 2012. The court thereafter set a status hearing on September 19, 2012, for defense counsel to file a notice of appeal. Counsel failed to appear, and the court set the case over for the next day, when counsel failed to appear again. The court, sua sponte, entered a written order extending the deadline for filing post-trial motions to October 4, 2012. Counsel also failed to appear at this hearing. The Court appointed the appellate defender and ordered it to file a notice of appeal, with the appellate defender did on October 5, 2010.

The appellate court first had to determine whether it had jurisdiction to hear defendant’s appeal when the notice of appeal was filed more than 30 days after final judgment. Ultimately, the Terefenko court ruled that the notice of appeal was untimely and that it did not have jurisdiction. Illinois Supreme Court Rule 606(b) requires that “[T] he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” The court’s analysis was simple. The filing deadline for the notice of appeal was September 19, 2012, thirty days after final judgment. The notice of appeal had not been filed until October 5, 2012, and was therefore untimely. The defendant argued that the filing deadline had been extended by the trial court because the trial court twice extended the deadline for filing of post-trial motions. In support of this argument, the defendant cited People v. Church, 334 Ill. App. 3d 607 (2002), which involved a defendant’s appeal from a guilty plea. The Church court held that “[a] trial court has the inherent authority, upon proper application and showing of good cause, to grant an extension of time for filing a motion to reconsider sentence or a motion to withdraw guilty plea.” Terefenko, ¶ 18, citing id. at 614. The court, even assuming that Church applied to these facts, held that Church did not apply because good cause was not shown for granting an extension of time for filing.

The defendant also argued that the late filing should be excused because the court failed to comply with Supreme Court Rule 651(b) by failing to inform the defendant in Poland that he had the right to appeal. This argument also failed because the Court held that defendant had knowledge of the post-conviction proceedings and that it was his responsibility to stay abreast of them.

The error here could have been easily avoided. It is clear from the plain language of Illinois Supreme Court Rule 606(b) that the notice of appeal must be filed with 30 days. It would not have been difficult to file this single document or ask the court to direct he circuit clerk to file the notice of appeal on the defendant’s behalf. It is unclear why counsel failed to show up to the three status hearings following the denial of the petition, but counsel could have avoid the whole snafu by simply filing the notice of appeal immediately after receiving the written order denying the petition. It is understandable the counsel would have wanted to ask his client whether he wanted to appeal prior to filing the notice, but if he was in Poland and the court did not know where defendant was, how did counsel expect to do that? The more prudent course of action would have been for counsel to file the notice of appeal and then contact the defendant, if possible. If it turns out that the defendant did not want to appeal, then the defendant could seek to have the appeal dismissed on his own motion in the appellate court, after the appellate court had proper jurisdiction over the appeal. If the defendant did want to appeal, then the appellate court could properly consider the appeal on the merits, which it couldn’t do here.

Ineffective assistance claims should be brought in §2255 petitions, not direct appeals (United States v. Rucker, No. 13-2760 (7th Cir.))

United States v. Rucker, No. 13-2760 (7th Cir.). Decided August 19, 2014. Rucker purchased two kilos of cocaine from a man named Alvarez, and was indicted six weeks later with conspiracy to distribute a controlled substance and other narcotic offenses. Rucker plead guilty to attempting to possess, with the intent to distribute, two kilos of cocaine. An additional fifteen kilos of cocaine were attributed to Rucker at sentencing under relevant conduct. The government proved up the relevant conduct through Alvarez’s testimony at Rucker’s sentencing hearing.

The parties entered an agreed stipulation in which the parties agreed that 3.5 to 5 kilos of cocaine should be attributed to Rucker, instead of the original fifteen. The stipulation resulted in a two-point base offense level increase, resulting in a range of 78 to 97 months. The Court imposed a sentence of 87 months.

Rucker then encountered Alvarez in a holding cell eight days after he was sentenced. Alvarez was shackled but Rucker was not. Predictably, Rucker slammed Alvarez’s head against the wall, which sent Alvarez into convulsions. Rucker was thereafter charged with witness retaliation, and the case went to trial, after which Rucker was convicted. The guideline range was 210 to 262 months, but was capped at 240 by the statutory maximum. The Court sentenced him to 240 months to be served consecutive to his narcotics sentence.

Defendant’s arguments that the evidence was insufficient to sustain a conviction and that the sentence was unreasonable fell flat. Rucker also argued that trial counsel was ineffective because trial counsel stipulated that Alvarez’s testimony at Rucker’s sentencing contributed to a 24-month increase in Rucker’s sentence and that trial counsel failed to move for a judgment of acquittal at the close of evidence. These claims ultimately failed, too.

Before reaching the ineffective assistance claims, the Court correctly noted that ineffective assistance of counsel claims are “ill-suited to resolution on direct appeal, as it typically requires evaluation of the circumstances that confronted counsel and the reasoning that informed his decisions and defense strategy. E.g., United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, a “defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)), as the record is unlikely to lend sufficient support to such a claim, and by raising it on direct appeal, the defendant will be foreclosed from pursuing the same claim on collateral review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir. 2014).”

Despite the veiled warning from the Court at oral arguments, Rucker also raised the ineffective assistance claim on direct appeal. Consequently, the Court considered it and rejected it because its review of the evidentiary support for the claim was limited to what was in the trial court record (even though ineffective assistance claims usually allege error that occurred outside of the record). The Court was therefore hamstrung by the record and denied the claim. Unfortunately for Rucker, because this claim has already been adjudicated, it is res judicata for purposes of a §2255 petition, where the defendant could have fleshed out these claims with affidavits and other evidence that was not in the trial court record before the court.