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.

 

 

Appellate court reverses trial court’s denial of successive petition where defendant shows that trial counsel did not communicate plea offer to him

The appellant in People v. Ryburn, 2019 ILL App (4th) 170779, appealed the trial court’s decision dismissing his successive post-conviction petition at the second stage of proceedings. The Fourth District ultimately reversed the dismissal of the petition and remanded the case for further proceedings.

Ryburn was originally charged with four counts of aggravated criminal sexual assault, four counts of criminal sexual assault, and four counts of aggravate criminal sexual abuse for his actions on September 8, 1998. Ryburn pled guilty to three counts of aggravated criminal sexual assault, pursuant to a plea agreement, in exchange for the State’s dismissal of the remaining nine counts and other unrelated charges, recommendation of an aggregate sentence totaling no more than 60 years, and imposition of no fines. Id. at ¶ 4. Ryburn was sentenced to 20 years imprisonment for each of the three counts of aggravated criminal sexual assault, to be served consecutively. Id. at ¶ 5.

Shortly following sentencing, in December of 1999, Ryburn filed a motion to withdraw his guilty plea, alleging he did not enter it knowingly and voluntarily. The post-plea motion was denied by the trial court. Id. at ¶ 5. On direct appeal, Ryburn’s convictions and aggregate 60-year sentence were affirmed, despite arguments by appellant that his sentence was unconstitutional. Id. at ¶ 6. In June 2002, Ryburn filed a pro se petition for relief under the Post-Conviction Hearing Act, alleging he received ineffective assistance of counsel for the public defender’s failure to (a) raise a speedy trial claim, (b) call certain alibi witnesses, (c) present evidence to corroborate the alibi, (d) obtain police records to show the victim had a motive to fabricate her complaint, and (e) to decide to hold appellant fit to plead guilty.

Ryburn also alleged ineffective assistance of his appellate counsel for failing to raise the aforementioned issues on appeal. Id. at ¶ 7. The circuit court summarily dismissed the petition as frivolous and patently without merit, which was affirmed upon appeal. In July 2004, Ryburn once again unsuccessfully petitioned the court to set aside the guilty pleas for various claims of ineffective assistance of counsel and violation of supreme court rules. Id. at ¶ 8.

Between 2011 and 2015, Ryburn filed four motions for leave to file a successive post-conviction petitions; the first three were initially denied by the circuit court, then appealed, and dismissed upon appellant’s own motions. Id. at ¶ 10-12. The motions contained claims of actual innocence via involuntary intoxication, a breach of the plea agreement related to the mandatory three-year supervisory release term and claims that forensic evidence did not support the second and third counts of his indictment.

Ryburn’s fourth motion for leave, which was allowed by the court, alleged that the State had tendered a plea offer of 24 years’ imprisonment to the public defender’s office that was never conveyed to him, resulting in 36 more years in prison. Id. at ¶ 13. The petition proceeded through the first stage of postconviction proceedings to the second. At the second stage of proceedings, appointed counsel filed an amended post-conviction petition detailing the claims of ineffective assistance of counsel related to the failure to inform Ryburn of the plea offer and the failure of previous appellate counsel to raise the claim on appeal. Id. at ¶ 14. The court dismissed the amended post-conviction petition, claiming that Ryburn failed to show any objective factor that impeded his ability to raise his claim during the initial or subsequent post-conviction proceedings. Id. at ¶ 15. This appeal followed.

The appellate court determined the circuit court’s focus at the second stage of postconviction proceedings should be determining whether the petition’s allegations sufficiently show a constitutional infirmity that would necessitate relief under the Act. Id. at ¶ 22. The dismissal of a petition at the second stage of proceedings is only warranted when the allegations in the petition fail to make a substantial showing of a constitutional violation. Id at ¶ 22.

The appellate court disagreed with and rejected the State’s argument that the word “trial” in the definition of prejudice precludes a defendant who pleaded guilty from filing a successive post-conviction petition, on the grounds that both legislative intent and state supreme court rulings had indicated as much. Id. at ¶ 28. On appeal, Ryburn contended that his amended successive post-conviction petition made a substantial showing of both cause and prejudice, which was not challenged by the State. As such, the appellate court’s review of the substantiality of the petition’s cause and prejudice showings were conducted individually.

On cause, the court held that cause is shown by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings. Id. at ¶ 32. The court held that Ryburn’s ineffective assistance of counsel claims related to the plea offer made by the State in 1998, of which he was never informed by counsel or the State, was an objective, external factor that prevented appellant from raising the issue in the initial post-conviction petition. Id. at ¶ 34-36. The appellate court concluded that appellant did make a substantial showing of cause in this case.

On prejudice, the court held that prejudice is shown by “demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” Id. at ¶ 38. To this end, Ryburn alleged that his trial counsel was ineffective for failing to inform him of the 1998 plea offer from the State.

Ineffective assistance of counsel claims are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. at ¶ 39. To obtain a reversal under Strickland, an appellant must prove (1) his counsel’s performance failed to meet an objective standard of competence and (2) counsel’s deficient performance resulted in prejudice to the defendant.

The appellate court concluded that because the United States Supreme Court has previously held that defense counsel has a duty to communicate formal offers from the prosecution to defendants (as required by the sixth amendment) and Ryburn provided sufficient evidence of defense counsel’s failure to inform him of the State’s plea offer, he made a substantial showing of the deficiency prong of the Strickland test. Id. at ¶ 41. The appellate court further determined that Ryburn’s petition made a substantial showing of all four elements of the prejudice prong of the Strickland test by demonstrating a reasonable probability that (1) he would have accepted the plea offer but for counsel’s deficient advice, (2) the plea would have been entered without the State canceling it, (3) the circuit court would have accepted the plea bargain, and (4) “the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at ¶ 42.

Ultimately, the appellate court concluded that Ryburn made a substantial showing of both cause and prejudice and agreed with him that the circuit court erred by granting the State’s motion to dismiss. Id. at ¶ 43. As a result, the Fourth District held that Ryburn’s successive post-conviction petition should advance to the third stage of proceedings for an evidentiary hearing and reversed the decision of the trial court dismissing his petition.

Petitioner could not show ineffective assistance of counsel for counsel’s failure to share discovery with him

The appellant in People v. Walker, 2019 IL App (3d) 170374 appealed the decision of the trial court’s order his pro se post-conviction petition on the grounds that the dismissal was erroneous. The Third District ultimately affirmed the decision of the Circuit Court.

Eric D. Walker was charged with and pled guilty to aggravated battery and burglary and was sentenced to three years imprisonment in 2016.

In 2017, Walker filed a pro se post-conviction petition, raising “numerous claims, many of which related to the representation [he] had received.” Id. at ¶ 6. Walker alleged that his attorney, the assistant public defender, conspired against him with the State and intentionally misled and misrepresented him; failed to file motions requested by Walker; failed to seek additionally discovery; refused to speak to his witnesses; and, of most relevance to the appeal, refused to allow him to review the discovery and evidence against him. The petition concluded that had Walker been provided the information the assistant public defender failed to allow him to review, he would not have pled guilty. Id. at ¶ 7. Walker filed substantively similar post-conviction petitions in both the aggravated battery and burglary cases, each of which related to both convictions. The trial court summarily dismissed both petitions as frivolous and patently without merit at the first stage of post-conviction proceedings. Id. at ¶ 1, 10. Walker then appealed.

On appeal, Walker argued that his petition presented an arguable constitutional claim of ineffective assistance of counsel due to counsel’s failure to show and discuss discovery materials with him. Accordingly, Walker argued that the trial court erred in dismissing his petition. Id. at ¶ 12. The Appellate Court’s review of the trial court’s summary dismissal was conducted de novo.

The Appellate Court explained that a “trial court must summarily dismiss a postconviction petition at the first stage of proceedings if the petition is frivolous or patently without merit.” Id. at ¶ 14. Further, the Appellate Court explained that to ultimately prevail on a claim of ineffective assistance of counsel, one must show that counsel’s performance was objectively unreasonable and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 15. Yet, at the first stage of post-conviction proceedings, “a petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Id. at ¶ 15.

The State argued that a defendant has no independent right to review discovery materials and that counsel’s refusal to allow a defendant to review those materials may not provide the basis for an ineffectiveness claim. In support of their argument, the State cited People v. Savage, 361 Ill. App. 3d 750 (2005), and People v. Davison, 292 Ill. App. 3d 981 (1997). Id. at ¶ 16. Walker argued, in response, that counsel has a duty to disclose or discuss “at least certain discovery materials,” especially those most relevant to a decision to plead guilty, implicitly conceding to the State’s argument that counsel does not have a duty to show a defendant all discovery materials to his client. Id. at ¶ 17.

The Appellate Court sided with the State and found that Walker’s argument regarding the disclosure of the police report undermined his own claims, as it contained no information not already in the record and provided no basis for arguing that counsel’s decision not to disclose the report was unsound or unreasonable. Id. at ¶ 20. Additionally, the Appellate Court held that no factual allegations within the petition, nor documents attached to the petition, created a basis for arguing that counsel’s performance fell below an objective standard of reasonableness. The appellate court affirmed.

Court affirmed dismissal of petition that alleged that trial counsel prevented him from testifying

The appellant in People v. Knapp, 2019 IL App (2d) 160162 appealed the decision of the Circuit Court of McHenry County to summarily dismiss his pro se petition alleging ineffective assistance of counsel on grounds that the record positively rebutted his claims. The Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of McHenry County and assessed statutory State’s Attorney Fees.

Following a conviction at trial for attempted first degree murder, two counts of aggravated battery and mob action, appellant Justin Knapp was sentenced to 16 years in Illinois Department of Corrections. Id. at ¶ 1. Eyewitness testimony presented at trial placed Knapp at the scene of the attempted murder and stabbing, positively identified him as a member of the Nortenos 14 street gang, identified the victim, Jorge Ativia, as a member of a rival gang, the Latin Kings, detailed threats of sexual assault and murder made to investigative police officers responding to the stabbing, and identified a missing knife from the kitchen of a home that Knapp had forced himself into. Id. at ¶ 5-22.

Knapp chose not to testify at his trial, and confirmed that he had discussed the decision not to do so at length with his defense counsel prior to jury instructions. Id. at ¶ 23. The jury found Knapp guilty on all counts. Id. at ¶ 25. Immediately thereafter, Knapp appealed his conviction and sentence. The Appellate Court of Illinois Second District affirmed his conviction and sentence on direct appeal in People v. Knapp, No. 2-09-0089 (2010). Id. at ¶ 26.

In November 2015, Knapp filed a pro se petition pursuant to the Post Conviction Hearing Act, alleging actual innocence, involuntary waiver of his right to testify, and ineffective assistance of appellate counsel. Id. at ¶ 28. In regard to Knapp’s involuntary waiver of his right to testify, the petition alleged that his decision was induced by “his attorney illegally withholding information critical to [his] decision thus rendering his decision involuntary.” Id. at ¶ 29. This claim included allegations that defense counsel had advised Knapp against testifying to a different account of events surrounding the fight that preceded the stabbing, the subject of that fight, and a witness’s gang affiliation. Id. at ¶ 29.

Knapp also alleged that his counsel instructed him during “in-trial conversations,” that his account of events was “unsupported by evidence.” Id. at ¶ 30. Knapp’s petition was dismissed by written order from the trial court on the grounds that his claim of actual innocence was insufficient and not supported by documents attached to the petition. The court found that the second claim was barred by res judicata and forfeiture, and the court found the claim of ineffective assistance of trial counsel to be frivolous and patently without merit. Id. at ¶ 30.

On appeal, Knapp only argued that the trial court erred with respect to his second claim– that trial counsel was ineffective for not allowing defendant to testify, citing People v. Palmer, 2017 IL App (4th) 150020, People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009), and People v. Whiting, 365 Ill. App. 3d 402, 408 (2006). Id. at ¶ 32.

The appellate court’s review of the post-conviction petition was de novo, and the court considered exclusively whether the petition presented “the gist of a constitutional claim” in order to survive the first stage of review. Id. at ¶ 37. In order to prevail on a claim of ineffective assistance of counsel, counsel’s performance must be demonstrated to be “objectively unreasonable under prevailing professional norms and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at ¶ 38. The court asserted that claims of ineffective assistance of counsel must “overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence.” Id. at ¶ 38.

The appellate court rejected Knapp’s argument that it could be inferred from the details provided that appellant “communicated a desire to testify to counsel both before and during trial” rather than expressly stating that he had informed trial counsel of his desire to testify. Id. at ¶ 39. As a result, the court concluded that the petition failed to establish “even the gist that trial counsel’s performance was deficient.” Id. at ¶ 39. The court added that advice not to testify is a matter of trial strategy that does not amount to ineffective assistance of counsel (unless counsel refuses to allow the defendant to testify, which had not been established by the record), and even if it did, it was clear from the record that trial counsel discussed “at great length” the decision not to testify, which would also be considered trial strategy. Id. at ¶ 39. The court cited Youngblood in support of this analysis. The court expounded further that even if it were to find trial counsel’s performance deficient, the petition failed to establish prejudice, as appellant had not indicated he would have denied participating in the attack had he been called to testify. Id. at ¶ 42.

As such, the court concluded that because a claim is without merit when it is rebutted by the record, appellant’s petition and its claim that trial counsel was ineffective for not allowing defendant to testify was without merit. Id. at ¶ 43. Moreover, the court’s conclusion indicated that appellant’s petition both failed to overcome the presumption that the actions of counsel were not the product of trial strategy and failed to establish even “the gist of a constitutional claim.”

The Appellate Court of Illinois Second District affirmed the Circuit Court of McHenry County’s order dismissing appellant’s post-conviction petition and granted the State’s request for $50 in costs for the appeal. Id. at ¶ 67.

 

 

Petitioner must specifically claim that appellate counsel was ineffective

The petitioner in People v. Stockton, 2018 IL App (2d) 160353 pleaded guilty to murder and was sentenced to 50 years in prison. She then filed a post-conviction petition, alleging that her Sixth Amendment rights were violated because the trial court considered improper evidence at her sentencing hearing. The petition was summarily dismissed.

On appeal, Stockton argued that the claims raised in her petition should be construed as claims of ineffective assistance of appellate counsel relating to her appellate attorney’s failure to raise on appeal the trial court’s consideration of improper evidence at sentencing. Stockton argued that the invocation of her Sixth Amendment rights “placed her claim under the umbrella of the Sixth Amendment.” Id. at ¶ 12.

The appellate court disagreed, noting that the Sixth Amendment only guarantees the right to trial counsel. It is the Fourteenth Amendment that guarantees the right to appellate counsel. Therefore, she could not argue on appeal that the claims raised in her petition should be construed as ineffective assistance of appellate counsel claims, where she did not specifically allege that and where the Sixth Amendment does not cover the effective assistance of appellate counsel.

Because Stockton could not construe her claims as ineffective assistance of appellate counsel claims in the trial court, she forfeited this argument for appeal. Having made no other argument, the appellate court affirmed the dismissal of Stockton’s petition.

This case underscores the importance of properly pleading the petition. Stockton filed this petition pro se, but if she had had the assistance of an attorney, this attorney would have likely been able to shape these claims into their appropriate forms, such that they would be more likely to survive summary dismissal and be properly preserved for appeal.

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.