People v. Cotto
2015 IL App (1st) 123489
Ill. App. Ct.2015Background
- Defendant Jesus Cotto was convicted in 2008 of armed robbery and, based on prior felonies, sentenced to natural life as an habitual criminal; an unpublished direct-appeal affirmance followed.
- On Sep. 28, 2011, Cotto filed a postconviction petition through retained counsel alleging ineffective assistance at trial and on direct appeal.
- The State moved to dismiss on Mar. 30, 2012, asserting untimeliness (over six months after the appellate decision) and lack of culpable-negligence-based justification, plus res judicata and waiver as to merits.
- Defense counsel, by Aug. 17, 2012, argued timely filing due to trial counsel’s failure to inform Cotto about the appellate decision and that a envelope postmark showed late mailing; claimed delays were not due to Cotto’s own culpable negligence.
- At a Nov. 2, 2012 hearing, the State’s motion to dismiss was granted; postconviction counsel did not address timeliness and focused on merits; the circuit court so ruled, and the dismissal was affirmed on appeal.
- Cotto appeals solely on the ground that privately retained counsel failed to provide reasonable assistance by challenging the untimeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private counsel must provide reasonable assistance in postconviction proceedings. | Csaszar controls; no duty to aid when privately retained. | Anguiano requires reasonable assistance from all counsel. | No, court affirmed dismissal under Csaszar/Anguiano rationale. |
| Whether the petition was timely and the lateness attributable to culpable negligence. | Timeliness issue supported by trial-counsel failures and late mailing. | Delay due to private counsel’s handling; not Cotto’s culpable negligence. | Petition untimely; dismissal proper despite counsel’s efforts. |
| Whether the second-stage dismissal should be remanded for new proceedings with different counsel. | Remand warranted to obtain proper postconviction counsel performance. | Not argued; request for remand via new counsel. | Not remanded; affirmance of circuit court. |
Key Cases Cited
- People v. Anguiano, 2013 IL App (1st) 113458 (Ill. App. 1st Dist. 2013) (holds reasonable assistance required from all counsel under the Act, whether appointed or privately paid)
- People v. Csaszar, 2013 IL App (1st) 100467 (Ill. App. 1st Dist. 2013) (private counsel did not trigger requirement of reasonable assistance under the Act)