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.

Counsel has no duty to advise on availability of good-time credit because it is collateral consequence of plea (People v. La Pointe, 2015 IL App (2d) 130451)

People v. La Pointe, 2015 IL App (2d) 130451 (March 27, 2015) Du Page Co. Affirmed. La Pointe was charged with first-degree murder (under two different theories) and armed robbery for allegedly robbing and killing a taxi cab driver in March of 1978. Defendant entered into a partially negotiated plea agreement only a few months later where he plead open to the first-degree murder charge only. There was no agreement as to sentence. The Court imposed a life sentence following the sentencing hearing, finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty under Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1), the sentencing scheme in place at the time. The defendant appealed.

The second district appellate court vacated the defendant’s life sentence and reduced his prison time to 60 years, having held that the trial court erred by finding that the defendant’s conduct was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, such that a life sentence was warranted under ¶ 1005-8-1(a)(1). However, the second district was reversed by the Illinois Supreme Court, which held that defendant’s life sentence was appropriate under ¶ 1005-8-1(a)(1) in light of the pre-meditated and deliberate nature of the crime and defendant’s callous and unremorseful behavior following it.

La Pointe then filed a post-conviction petition in 2002, claiming that trial counsel was ineffective for failing to inform him that he could receive good-time credit if he accepted the State’s 40-year offer; that trial counsel failed to explain to him the effect that ¶ 1005-8-1(a)(1) could have on his sentence; and that appellate counsel was ineffective for failing to bring up trial counsel’s failure to file post-judgment motions. The trial court dismissed the petition and the appellate court affirmed. La Pointe then filed a successive post-conviction arguing a variation of this theme. This, too, was denied and affirmed on appeal. The Illinois Supreme Court then vacated the second district’s judgment and granted leave for defendant to file a successive petition limited to “the issue of whether trial counsel was ineffective in failing to file a motion to withdraw defendant’s guilty plea” listed in letter written to counsel after sentencing. Defendant’s successive petition again argued a variation of his original claims—namely, that he was misadvised on good-time credit and the applicability of ¶ 1005-8-1(a)(1), and that counsel was ineffective for failing to file post-judgment motions. The defendant’s petition was denied at third-stage after a full evidentiary hearing. La Pointe appealed, which resulted in this decision.

La Pointe argued on appeal “that the trial court erred in denying his petition, because he proved that Simpson had rendered ineffective assistance in two respects: (1) failing to advise defendant that, if he accepted the State’s plea offer, he would be eligible for day-for-day good- conduct credit against the proposed 40-year sentence; and (2) erroneously advising defendant that the absence of any evidence that his offense was accompanied by exceptionally brutal or heinous conduct meant that he could not be sentenced to more than 40 years for first-degree murder.” ¶ 67.

The trial court disagreed with the defendant on both grounds. It held that because the award of day-for-day credit is not a “direct consequence” of the guilty plea (because it was something that would later be awarded by the Illinois DOC), trial counsel had no obligation to advise him that he would be eligible for day-for-day credit. Therefore, the “performance” prong of the Strickland test was not satisfied because counsel had no duty to advise on this issue. As to the second claim, the court found that defendant did not meet the “performance” prong of the Strickland because trial counsel was only offering his “opinion” that defendant’s offense conduct did not amount to “exceptionally brutal or heinous conduct” such that he would not be sentenced more than 40 years. “A defense attorney’s honest assessment of a defendant’s case cannot be the basis for a finding of ineffectiveness.” ¶ 87, citing People v. Wilson, 295 Ill. App. 3d 228, 237 (1998); People v. Bien, 277 Ill. App. 3d 744, 751 (1996).

Post-conviction petitions must be supported by evidence; if that is in the form of an affidavit, then the affidavit must be notarized (People v. Brown, 2015 IL App (1st) 122940)

People v. Brown, 2015 IL App (1st) 122940 (March 11, 2015) Cook Co. Affirmed. The defendant in Brown was convicted of unlawful use of a weapon by a felon after a jury trial. He was sentenced to 13 year DOC, and his conviction and sentence were affirmed on appeal. Brown filed a post-conviction petition alleging that his trial counsel provided ineffective assistance for “failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State’s guilty plea offer and the extended sentence he faced if convicted at trial” and laboring under a conflict of interest because trial counsel also represented a man who could have been a potential defense witness. ¶ 1. Brown’s Petition was dismissed at second stage because “allegations in Brown’s petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record…” ¶ 2.

Brown attached his own affidavit in support of his petition, as well as an affidavit from trial counsel, an affidavit from a potential witness named Arnold Misher, and a handwritten statement entitled “affidavit” from another individual. Brown’s affidavit attested that he told trial counsel that another person had possessed the weapon that Brown was convicted of possessing, and that this person would testify to this, but that his lawyer indicated to Brown that she would not call this witness because he was a “trouble maker.” The affidavit also averred that trial counsel never communicated the State’s 3-year DOC offer to the defendant. Trial counsel’s affidavit indicated that she was concerned about the effect that any plea agreement would have on Brown’s federal parole and that Brown was not interested in accepting the State’s 3-year DOC offer. Misher’s affidavit recalled the arrest of defendant and did not mention defendant having a gun. The handwritten statement that was entitled “affidavit” but was unsigned, undated, and not notarized, was from a witness who made vague reference to seeing a man wearing a white shirt with a machine gun prior to the police arriving. The statement did not mention Brown. Brown later amended the petition and attached two additional documents entitled “Affidavit” that were not notarized. These were purportedly from additional witnesses with similar stories. Both “Affidavits” stated that the witnesses had not seen Brown with a gun.

Brown’s petition had advanced first stage proceedings, but was dismissed at the second stage. The relevant question raised during a second-stage postconviction proceeding is whether the petition’s allegations, supported by the trial record and accompanying affidavits, demonstrate a substantial showing of a constitutional deprivation, which requires an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). All well-pled facts in the petition and affidavits are taken as true, but assertions that are really conclusions add nothing to the required showing to trigger an evidentiary hearing under the Act. Id.

The appellate court held that Brown’s petition was properly denied at the second stage. As to the ineffective assistance of counsel claim that Brown’s trial counsel failed to call these various witnesses who have testified that they did not see him with a gun, “the defendant’s allegation must be supported by an affidavit from that witness that contains the witness’s proposed testimony.” 725 ILCS 5/122-2 (West 2010); People v. Enis, 194 Ill. 2d 361, 380 (2000); see also People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (when defendant attacks competency of trial counsel in postconviction petition for failure to call or contact certain witnesses, defendant must attach affidavits from those witnesses). “In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 380. Affidavits must be notarized in order to satisfy the pleading requirements of section 5/122-2 of the Act. The “affidavits” purportedly made by these various witnesses that Brown sought to have trial counsel call at trial were legally insufficient because they were not notarized, and Brown did not offer any explanation for why they were not notarized.

However, even “Construing the notarization requirement as a technicality, we find the affidavits Brown offered in support of his allegations are still insufficient to support his allegation that trial counsel was ineffective for failing to call each of his proposed witnesses to testify. Brown cannot overcome the strong presumption that counsel strategically decided which witnesses to call to testify at his trial and he has not made a substantial showing of prejudice based on counsel’s decision not to call any of his proposed witnesses.” ¶ 55. The appellate court also dismissed Brown’s claim that trial counsel did not communicate the State’s offer to him because 1) the trial court independently recalled defense counsel communicating the offer to Brown, and 2) Brown failed to show prejudice, even if he could prove that trial counsel failed to communicate the offer to him. The court found that the remainder of Brown’s claim lacked evidentiary support from his affidavits.

Brown demonstrates 1) the importance of supplying evidence to accompany the legal claims made in the post-conviction petition, and 2) if that evidence is in the form of an affidavit, that document needs to be notarized in order to meeting the pleading requirements of the Act.

Defendant who was absent at trial could not later argue that counsel failed to consult with him about trial strategy (People v. Montes, 2014 IL App (2d) 140485)

People v. Montes, 2014 IL App (2d) 140485 (February 6, 2015) Kane Co. Affirmed. Defendant Augustine Montes was convicted of attempted first-degree murder and aggravated battery following a jury trial in absentia. He received concurrent sentences of 26 years on the attempted murder charge and 10 years on the aggravated battery charge. His convictions and sentences were affirmed on direct appeal. Montes then filed a post-conviction petition alleging actual innocence based on a theory of entrapment and ineffective assistance of counsel.

Montes’ post-conviction petition alleged that he obtained evidence after trial that would have supported an entrapment defense in the form of an affidavit from a man who indicated that, contrary to his trial testimony, another man “‘induced and incited” the incident by possessing a firearm and putting everyone in a position to commit a crime.” ¶ 12. An additional affidavit from defendant’s trial attorney was attached to the petition indicating that it was defense counsel’s understanding that the affiant who would testify to these events was unavailable to be interviewed or called as a witness because he had several pending criminal cases.

Montes also argued that his trial counsel was ineffective for failing to discuss with him tendering a jury instruction on the lesser-included offense of reckless discharge of a firearm. An affidavit from trial counsel was attached indicating that trial counsel did not discuss this jury instruction with defendant and that defendant was not advised of the possibility of asking for it. Montes also argued that trial counsel was ineffective for not seeking a plea deal from the State.

The trial court summarily dismissed the defendant’s petition, finding that the affidavit from the witness was not “newly discovered evidence,” nor was it non-cumulative or so conclusive that it was likely to change the result on retrial. The court also found that defendant’s ineffective assistance claim was forfeited by failing to raise it on direct appeal and that the claim was factually insufficient because defendant did not attach an affidavit asserting that he would have demanded the submission of the lesser-included-offense instruction. ¶ 16. Montes appealed.

The appellate court affirmed the trial court’s dismissal of the petition, holding that defendant forfeited his entrapment defense because he failed to raise it at trial, he never complained that counsel failed to raise that defense, he did not raise the defense on direct appeal, and he did not complain of ineffective assistance of counsel on appeal for his appellate lawyer’s failure to raise it there. Accordingly, this claim was forfeited. ¶ 19, citing People v. Davis, 2014 IL 115595, ¶ 13 (in a postconviction setting, issues that were raised and decided on direct appeal are barred by res judicata, while issues that could have been raised on direct appeal, but were not, are forfeited).

On the issue of whether the information from the witness was considered “newly discovered,” the court explained that “‘Usually, to qualify as new evidence, it is the facts comprising that evidence which must be new and undiscovered as of trial, in spite of the exercise of due diligence. Generally, evidence is not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative.” (Emphases added.) ¶24, quoting People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). The affidavit from the witness was therefore not “newly discovered” because the defendant knew of the existence of these facts prior to trial, but did not raise them at trial. The court acknowledged that defendant may counter that even if he knew these facts, the witness who would testify to them was unavailable because he would be unwilling to testify. However, the court noted, defendant could have testified to these facts himself at trial, but he chose not to even be present at the trial.

Related to that is defendant’s second claim that defense counsel failed “to discuss with defendant whether to submit to the jury a lesser-included-offense instruction, but defendant was not present at trial for counsel to do so. Counsel could not submit a lesser-included-offense instruction without the opportunity to discuss it with defendant and without defendant’s consent. Id. at 230. Thus, by absenting himself from trial, defendant precluded counsel from fulfilling the obligation to discuss with him the availability of a lesser-included-offense instruction.” Dismissal of the petition was therefore affirmed.

The somewhat unique aspect of this case is that the defendant was tried for this serious charge in abensentia. That severely impacted his ability to argue that certain evidence that he knew existed should have been presented and to argue that defense counsel failed to consult with him about tendering a lesser-included instruction. If the defendant had been present for his trial, he could have asked his attorney to go into certain lines of questioning, and the defense attorney would have then had an obligation to discuss with him the possibility of tendering a lesser-included instruction. The defendant just being present could have positively impacted the result of the trial.

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.

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.

Actual innocence claims and ineffective assistance claims have different time limits for filing, even when brought in the same petition. (People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015))

People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015) Cook Co. Affirmed. Defendant Jimmy Flowers was convicted of first-degree murder and aggravated battery with a firearm in 1993. He was sentenced to concurrent terms of 45 years on the murder charge and 20 years on the weapon charge. The defendant appealed his convictions and sentences, which were affirmed on appeal. Flowers filed a pro se petition for post-conviction relief in July of 2005, alleging newly discovered evidence to establish actual innocence. The defendant’s newly discovered evidence was an affidavit from a witness who indicated that Flowers was not at the shooting scene.

The Court appointed counsel at the second-stage to represent Flowers. Counsel filed a supplemental post-conviction petition in June of 2010, additionally claiming ineffective assistance of counsel, supported by a second affidavit from another witness who also maintained that she did not see the defendant at the scene of the shooting, either. Flowers alleged that his trial counsel was ineffective for failing to interview or call her as a witness. The State filed a motion to dismiss, which the court granted, “finding that the information contained in McCray’s affidavit was not newly discovered and that McCray’s testimony would not change the result on retrial. The court also found that, while the delay in bringing forth his ineffective assistance claim was not due to defendant’s culpable negligence, he failed to demonstrate that trial counsel was ineffective for failing to call Peterson as a witness.” ¶ 24. The defendant appealed, arguing that the trial court 1) “erred in dismissing his postconviction petition where he made a substantial showing of actual innocence. Specifically, defendant argues that an evidentiary hearing is warranted where alleged newly discovered evidence from occurrence witness Dujuan McCray shows that defendant was not involved in the shooting,” ¶ 28, and 2) defendant’s “pleadings and affidavits substantially established he was deprived of the effective assistance of trial counsel. Defendant specifically maintains that his trial counsel was ineffective for failing to interview and call eyewitness Karen Peterson.” ¶ 40.

The defendant’s pro se petition advanced to second-stage proceedings under the PCHA, where counsel was appointed and he fulfilled his duties under Ill. Sup. Ct. Rule 651(c). At the second stage of proceedings, all well-pleaded facts that are not positively rebutted by the trial record are taken as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). An evidentiary hearing is only required when the allegations of the petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). At the second stage of a post-conviction “actual innocence” inquiry, the relevant question is “whether the petitioner has made a substantial showing of actual innocence such that an evidentiary hearing is warranted.” People v. Lofton, 2011 IL App (1st) 100118, ¶ 34. The evidence supporting a claim of actual innocence must be newly discovered, material and not merely cumulative, and of sufficiently conclusive character that it would probably change the result of a retrial. People v. Edwards, 2012 IL 111711, ¶ 32.

The appellate court concluded that “Even if we were to find that this evidence was newly discovered, defendant’s claim fails because it is neither material nor conclusive.” ¶ 34. The Court explained that “McCray’s affidavits, which clearly state that he did not see the actual shooting, but only the aftermath of the shooting…are insufficient to move this petition to a third-stage evidentiary hearing. These documents do not support defendant’s claim of actual innocence where, at most, they show that McCray was not at the scene of the shooting and has no personal knowledge about the shooting itself.” ¶ 37.

Before the court considered the ineffective assistance claim that defense counsel failed to interview and call as a witness another person who claimed that she did not see defendant at the scene of the shooting, the court considered the timeliness of this claim. Under section 122-1 of the Act, a postconviction proceeding may not be commenced outside the time limitation period stated in the Act unless the defendant alleges sufficient facts to show that the delay in filing his initial petition was not due to his culpable negligence. ¶ 43, citing 725 ILCS 5/122-1(c) (West 2010); People v. Rissley, 206 Ill. 2d 403, 420-21 (2003). Flowers maintained that he was not culpably negligent for the late filing of this claim when he had trouble contacting one of the witnesses who supplied an affidavit, due to her moving around over the years. The Flowers court was unmoved by the defendant’s excuse. The defendant had until 6 months after the denial of his PLA to file this claim in a post-conviction petition. He filed it 10 years later. Accordingly, he was culpably negligent in filing this claim beyond the time limitation and this claim was dismissed.

What’s interesting about this case is the appellate court’s different treatment of the time limitations for filing each claim. The defendant raised both an actual innocence claim and an ineffective assistance of counsel claim in the same petition. Section 725 ILCS 5/122-1(c) concerns the statute of limitations for filing post-conviction petitions. Claims of actual innocence are specifically exempted from the normal time limits, so it could be brought 10 years after the denial of the PLA without issue. However, the ineffective assistance claim, even though it was brought in the same petition as the actual innocence claim, was separately required to be brought within the normal limitation period prescribed by 5/122-1(c). It was brought about 10 years too late. Consequently, even though the actual innocence claim could be heard on the merits, while IAC claim could not be heard

Why the timing of post-conviction petitions is important (People v. Simon, 2014 IL App (1st) 130567)

People v. Simon, 2014 IL App (1st) 130567 (December 5, 2014). Cook County. Affirmed. Defendant Damon Simon was convicted of first-degree murder in connection with a shooting death, and was sentenced to 50 years DOC. Simon filed a pro se post-conviction petition while his direct appeal was pending. That petition was dismissed at first stage, and the appellate court subsequently affirmed defendant’s conviction and sentence on direct appeal, as well as the denial of his post-conviction petition. Defendant then filed a successive post-conviction petition, asserting, among other claims, actual innocence. The trial court denied leave to file the petition because it found that Simon failed to meet the “cause-and-prejudice” test needed to file a successive petition under the Act. Simon appealed, and this decision followed, affirming the trial court’s dismissal of defendant’s petition.

Simon unsuccessfully argued on direct appeal that “(1) the trial court erred in barring evidence that supported defendant’s theory of self-defense, (2) the trial court relied on an erroneous recollection of the evidence in weighing witness credibility, and (3) the State failed to disclose a witness’ felony conviction and allowed the witness to provide perjured testimony when it failed to correct the witness’ misstatement of his criminal history.” ¶ 41. Thirty-nine days after sentencing, defendant filed a pro se post-conviction petition arguing “that his trial counsel was ineffective for (1) filing a posttrial motion without reviewing trial transcripts after requesting that defendant pay additional funds to obtain the transcripts and (2) failing to argue for second degree murder despite defendant’s specific request for him to do so.” ¶ 42. The petition was denied by the trial court as being frivolous and patently without merit. The appellate court affirmed.

The defendant then filed a petition for leave to file a successive post-conviction petition.

PRACTICE TIP: Note that defendants cannot just file successive petition ad infinitum. The Act requires the defendant to ask permission from the court to file the successive petition through a petition for leave. If the trial court grants the petition for leave, then the defendant can then file the successive petition. Crucial to the trial court’s decision in granting leave to file the successive petition is the defendant showing the court why the failure to bring these new claims in prior proceedings was essentially not his fault.

Simon’s petition for leave “claimed that there was cause for his failure to raise all claims in his initial postconviction petition in that the initial petition “was intended as a post- trial motion, and only labeled as a post-conviction petition after Petitioner was misguided to do so by a jail-house lawyer.” Defendant further claimed that without leave to file the successive petition, he would be “effectively denied the right to present constitutional claims of a serious magnitude, including allegations of ineffective assistance of counsel.” ¶44. Simon’s successive petition stated various claims of ineffective assistance of counsel. He also claimed that he had new evidence in the form of a witness affidavit that supported his self-defense theory asserted at trial. Leave was denied, and the defendant argued on appeal that “he should have been granted leave to file a successive postconviction petition because (1) he presented a claim of actual innocence based on the affidavit of Green, a “key State witness”; and (2) he demonstrated cause and prejudice for his failure to previously raise several meritorious claims concerning trial counsel’s ineffectiveness.” ¶48.

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) generally contemplates that a defendant will file only one postconviction petition. Ortiz, 235 Ill. 2d at 328. However, there are two ways to overcome the procedural bar to filing a successive petition: (1) the Pistonbarger cause-and-prejudice test; and (2) the Ortiz actual innocence test. People v. Ortiz, 235 Ill. 2d 319, 330 (2009) (describing two ways to overcome the procedural bar); People v. Pistonbarger, 205 Ill. 2d 444, 459 (2002). Simon sought leave under both exceptions.

As to the actual innocence claim, “leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” Edwards, 2012 IL 111711, ¶ 24. “Stated differently, leave of court should be granted when the petitioner’s supporting documentation raises the probability that ‘it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at 327). The defendant must show that the evidence in support of his actual innocence claim is: (1) newly discovered; (2) material and not merely cumulative; and (3) of such a conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at 333. Evidence is considered “newly discovered” if (1) it has been discovered since the trial; and (2) the defendant could not have discovered it sooner through due diligence. Ortiz, 235 Ill. 2d at 334. “Evidence is considered cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 Ill. 2d at 335. To determine whether the evidence “would probably change the result of retrial,” the court must conduct a case-specific analysis of the facts and evidence. (Internal quotation marks omitted.) Ortiz, 235 Ill. 2d at 336-37. ¶¶ 57-58.

The appellate court held that the affidavit that Simon characterized as “new” evidence supporting his claim of actual innocence was in fact not new because several of the witness’ statements were made at trial and the statements that the witness made in the affidavit were affirmatively rebutted by the trial record.

As to Simon’s argument that he passed the cause-and-prejudice test, the appellate court disagreed. Under section 122-1(f), leave to file a successive petition “may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2012). Section 122-1(f) further provides that: “(1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice 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.” 725 ILCS 5/122-1(f) (West 2012). Both elements of the cause-and-prejudice test must be satisfied in order for the defendant to prevail. Guerrero, 2012 IL 112020, ¶ 15. The appellate court held that Simon’s claims of ineffective assistance did not satisfy the second prong of the cause-and-prejudice test, in that they would not have “so infected the trial that the resulting conviction or sentence violated due process.” The appellate court therefore affirmed dismissal on this ground, too. Having determined that Simon failed to meet the actual innocence and the cause-and-prejudice requirements necessary to file a successive petition, the appellate court affirmed the trial court’s dismissal of the petition for leave.

What stands out to me about this case is not the rather vanilla claims that the defendant asserted throughout post-trial proceedings, but the defendant’s tragic misunderstanding of the law in presenting these claims to the court. The claims themselves might have actually gotten the defendant somewhere if he would have presented them in the right way. The problem started when he filed a post-conviction petition 39 days after sentencing while the case was on direct appeal. A defendant has 6 months after the denial of the PLA following the direct appeal to file a post-conviction petition. There was no reason for the defendant to rush it here as he did. He tried to backpedal out of the mistake by claiming that a jailhouse lawyer told him to characterize the filing as a post-conviction petition rather than a motion for new trial (which would have been untimely filed anyway at 39 days after judgment), but he burned his one chance at post-conviction petition when he didn’t have time to develop his claims (evidenced by the fact that his later petition contained an affidavit from a State’s witness, which defendant probably would not have been able to obtain just a few short months after trial). If the defendant had just waited until his conviction and sentence were affirmed on direct appeal before filing his post-conviction petition, then he would have had time to formulate and gather evidence for all of the claims that he made in his first and second petition; he wouldn’t have had to jump through the successive petition hoops; and he could also raise ineffective assistance of appellate counsel claims that he otherwise would not have been able to raise in his initial petition. But simply filing that first pro se petition too soon significantly restrained his ability to raise his otherwise decent substantive claims.

Illinois Supreme Court says that State should not take on adversarial role during Krankel hearing (People v. Jolly, 2014 IL 117142)

People v. Jolly, 2014 IL 117142 (December 4, 2014). McLean Co. Appellate court reversed; circuit court reversed; remanded. Defendant John Willie Jolly was convicted at a jury trial of delivery of a controlled substance. He was sentenced as a Class X habitual offender to 16 years DOC. Jolly filed a pro se post-trial motion entitled “Motion to Reduce Sentence.” Jolly raised various ineffective assistance claims in the motion, in addition to challenging his sentence as excessive. The Public Defender’s office thereafter filed a letter with the court indicating that Jolly’s lawyer was no longer with the office, and that a new assistant public defender was reassigned to the case.

Jolly then filed a second pro se motion entitled “Motion to Amend the Motion to Reduce Sentence.” The pro se motion contained additional claims of ineffective assistance of counsel. A hearing was held at which Jolly was represented by counsel from the Public Defender’s office. The Court denied the pro se motions, finding that the sentence was not excessive and that the ineffective assistance claims were untimely. The defendant appealed, and the appellate court remanded the case for a hearing on Jolly’s ineffective assistance claims pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

The Court then held a “Krankel hearing” on Jolly’s ineffective assistance claims. The Court excused Jolly’s new counsel from the courtroom during the hearing. Jolly thereafter proceeded pro se at the hearing. The Court allowed the defendant to state his claims, but he did not allow the defendant to argue the merits of the claims. The Court finished questioning the defendant about his claims and it asked the State whether they wanted to put on any evidence. The State was allowed to call defendant’s original trial counsel to testify, but the defendant was not allowed to cross-examine him. The defendant and the State were then permitted to argue about whether a full-blown evidentiary hearing on defendant’s ineffective assistance claims should be had.

“At the close of the hearing, the circuit court reemphasized the preliminary nature of the proceeding and explained that it was not intended to be a full evidentiary hearing. When describing how it reviewed defendant’s claims, the court stated that it considered the factual basis of the claims, the merit of the claims, whether the claims pertained to trial strategy, and whether they constituted ineffectiveness under the governing Strickland test. In addition, the court indicated that it would consider the statements of defendant and Welch, the court file, and its own observation of Welch’s performance during defendant’s trial. Last, and relevant to this appeal, the trial court also indicated that it would consider evidence not in the record. Specifically, the trial judge stated he would rely on his personal knowledge of Mr. Welch’s work as an attorney in prior unrelated criminal cases. The judge explained that he was familiar with Mr. Welch’s work “during that period of time that both of us were in the criminal felony division” and “would have had numerous encounters with one another.” The court then ruled that it would not appoint new counsel or proceed to a full evidentiary hearing because each of defendant’s allegations lacked merit or pertained to trial strategy.” ¶ 22. Jolly appealed, the appellate court affirmed, and the Ill. Supreme Court granted PLA.

Jolly argued on appeal that “the circuit court’s judgment must be reversed because the court failed to hold a proper preliminary Krankel hearing limited to investigating the factual basis for his claims and, instead, erroneously transformed the proceeding where he appeared pro se into an adversarial evidentiary hearing.” The State actually conceded this, but argued on appeal that the procedural error was harmless because the Court had effectuated the goal of the Krankel hearing by creating a sufficient record of defendant’s claims for appellate review.

The Supreme Court ultimately sided with the defendant, holding that “we believe that a preliminary Krankel inquiry should operate as a neutral and nonadversarial proceeding. Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State’s participation at that proceeding, if any, be de minimis. Certainly, the State should never be permitted to take an adversarial role against a pro se defendant at the preliminary Krankel inquiry.” ¶38. The Court reasoned that “Here, the circuit court permitted the State to question defendant and his trial counsel extensively in a manner contrary to defendant’s pro se allegations of ineffective assistance of counsel and to solicit testimony from his trial counsel that rebutted defendant’s allegations. In other words, the circuit court allowed the State to confront and challenge defendant’s claims directly at a proceeding when defendant was not represented by counsel. The State also presented evidence and argument contrary to defendant’s claims and emphasized the experience of defendant’s trial counsel. Thus, as in Fields, the State and defendant’s trial counsel effectively argued against defendant at a proceeding when he appeared pro se. As we explained above, this is contrary to the intent of a preliminary Krankel inquiry.” ¶40.

The case was then reversed and remanded for a new preliminary Krankel inquiry without the State’s adversarial participation.