Trial court properly granted Kuehner motion where post-conviction counsel provided evidence that claims were frivolous

The appellant in People v. Fathauer, 2019 IL App (4th) 180241 appealed the trial court’s order dismissing his post-conviction petition on grounds that the court erred by granting post-conviction counsel’s motion to withdraw in light of a stated claim for ineffective assistance of counsel and post-conviction counsel’s failure to amend his pro se petition. The Fourth District Appellate Court affirmed.

Fathauer was originally convicted of participation in methamphetamine manufacturing and obstruction of justice, and sentenced to concurrent terms of 20 years and 3 years imprisonment. Id. at ¶ 1. On direct appeal, both his conviction and sentence were affirmed by the appellate court. Shortly thereafter, Fathauer filed a pro se petition for post-conviction relief, alleging four grounds for relief, including ineffective assistance of trial counsel. Id. at ¶ 2. The trial court appointed appellate counsel, who subsequently filed a motion to withdraw, citing People v. Kuehner, 2015 IL 117695, and arguing that each of the pro se claims were frivolous and patently without merit. Id. at ¶ 3. Counsel’s motion was initially granted by the court, and Fathauer’s appearl was dismissed for want of a final order. Id. at ¶ 4. On remand, the trial court granted the State’s motion to dismiss. This appeal followed.

Fathauer argued on appeal that the trial court erred by granting post-conviction counsel’s motion to withdraw because the petition stated a claim for ineffective assistance of counsel and because post-conviction counsel rendered unreasonable assistance by failing to amend the pro se petition. Id. at ¶ 5. As to the ineffective assistance of trial counsel claim, Fathauer alleged that counsel failed to scientifically test spots on his clothing and point out inconsistencies in trial testimony, and that such a lack of pre-trial investigation by his counsel “deprived him of a potential defense” that would have prevented his conviction at trial. Id. at ¶ 27. The State responded to his petition with a motion to dismiss, arguing that appellant’s claims were barred by res judicata, insufficiently pled, and unsupported by the record. Id. at ¶ 29.

In response to Fathauer’s claims of ineffective assistance of trial counsel, post-conviction counsel, in his motion to withdraw under Kuehner, asserted that “there is no evidence from the record to support” the claims made by Fathauer and that Fathauer had “not demonstrated deficient performance by trial counsel that caused him prejudice.” Id. at ¶ 32. Postconviction counsel also expressed his concurrence with the State that the issue of false testimony had been argued and rejected on direct appeal and was therefore barred by res judicata. As to the Kuehner issue, Fathauer argued that post-conviction counsel should not have been permitted to withdraw because his petition stated the gist of a constitutional claim of ineffective assistance of trial counsel.

The appellate court noted that Kuehner requires a two-step analysis. First, the court must determine whether the trial court advanced the petition to the second stage of postconviction proceedings on its merits, based upon its conclusion that the petition stated the gist of a constitutional claim. Second, the court must evaluate whether counsel provided “at least some explanation as to why, despite its superficial virtue, the pro se petition was in fact frivolous or patently without merit” with respect to each claim. Id. at ¶ 47. On the first requirement, the court held that the appointment of counsel was a sufficient and satisfactory action. Id. at ¶ 48. On the second requirement, the court held that it must address whether postconviction counsel (1) provided some information that was not apparent on the face of the petition that (2) demonstrated that each of defendant’s pro se claims were in fact frivolous and patently without merit. Id. at ¶ 50.

To that end, the court held that when post-conviction counsel provided the trial court with the full transcript of the witness’ testimony and the court’s decision on direct appeal, counsel was calling the court’s attention to information not apparent on the face of the petition and met Kuehner’s requirement. Id. at ¶ 52. Moreover, the court held that if counsel determines that appellant’s claims are barred by res judicata or are contradicted by the record, counsel has an ethical obligation to move to withdraw if he reasonably believes that the trial court erred when it found the petition had merit at first glance. Id. at ¶ 58. The court found further that post-conviction counsel had properly explained why each of the claims within the post-conviction petition were frivolous and patently without merit. Id. at ¶ 64. Thus, the court held that counsel’s motion to withdraw was proper under Kuehner.

Finally, as to Fathauer’s assertion of unreasonable assistance of post-conviction counsel for failing to amend his pro se petition, the court held that appellant’s claims were contradicted by the record, and that, because counsel is not required to advance frivolous claims, could not amount to unreasonable assistance. Id at ¶ 68. The Appellate Court affirmed.

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.

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.

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.