2023 IL App (1st) 220916
Ill. App. Ct.2023Background
- In May 2014 Robert King was arrested after officers responded to a shots-fired call; police testified King fled, discarded two objects, and a revolver was recovered near where he was subdued. The revolver was unloaded and not tested for fingerprints/DNA.
- King was tried in a bench trial, stipulating to two prior burglary convictions, convicted of being an armed habitual criminal (AHC), and sentenced to 11 years; conviction and sentence were affirmed on direct appeal.
- King filed a pro se postconviction petition (Aug. 2017) asserting Fourth and Fourteenth Amendment violations, insufficient evidence, and sentencing errors; the Public Defender’s Office was later appointed and filed an amended/supplemental petition raising AHC-eligibility and ineffective-assistance arguments.
- The State moved to dismiss; the petition was dismissed (Aug. 2020), the dismissal was vacated on appeal because postconviction counsel failed to file a Rule 651(c) certificate, and the case was remanded for renewed second-stage proceedings and compliance with Rule 651(c).
- On remand counsel filed a 651(c) certificate and stood on her prior supplemental petition; the trial court again granted the State’s motion to dismiss (June 2, 2022). King appealed, arguing his postconviction counsel provided unreasonable assistance in multiple respects.
- The appellate court affirmed, holding (inter alia) that remand cured the 651(c) defect, counsel’s choices about which nonfrivolous claims to pursue were reasonable, many of King’s contentions were meritless or procedurally barred, and counsel was not required to advance frivolous claims.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (King) | Held |
|---|---|---|---|
| 1) Failure to file Rule 651(c) certificate | 651(c) defect was cured by remand and dismissal should be considered on the merits | Counsel’s initial failure to file 651(c) evidence unreasonable; warranted new counsel/remand | Remand to file 651(c) is the proper cure; once complied with, the 651(c) claim did not render assistance unreasonable |
| 2) Counsel’s inexperience and failure to amend on remand | Counsel had discretion; she filed a supplemental petition before the State’s motion and stood on meritorious claims | Counsel admitted it was her first postconviction matter and did not amend or add exhibits after remand | Newness to the practice does not automatically equal unreasonable assistance; counsel was not required to further amend where claims were meritless or already addressed |
| 3) Failure to pursue sentencing/related ineffective-assistance claims | Court should reject untimely or meritless sentencing-based challenges; Patterson later resolved AHC eligibility | Counsel pursued sentencing-based theory but did not separately plead ineffective assistance for failing to seek reconsideration | Patterson (and caselaw) mooted the AHC eligibility argument; counsel not ineffective for failing to raise additional speculative claims |
| 4) Failure to present Fourth Amendment/suppression claims or obtain dispatch evidence | Probable cause existed from call of shots fired, flight, and weapon in proximity; suppression would have been futile | Counsel abandoned suppression claim and failed to secure dispatch/911 evidence or testing of the firearm | Fourth Amendment/suppression issues were litigated on direct appeal and are barred by res judicata; counsel not unreasonable for not reasserting futile claims |
Key Cases Cited
- People v. Greer, 212 Ill. 2d 192 (2004) (Rule 651(c) does not require counsel to advance frivolous claims)
- People v. Pendleton, 223 Ill. 2d 458 (2006) (postconviction counsel need only investigate and properly present petitioner’s claims; not obligated to raise every issue)
- People v. Suarez, 224 Ill. 2d 37 (2007) (remand required where counsel fails to file Rule 651(c) certification)
- People v. Hodges, 234 Ill. 2d 1 (2009) (standard for advancing from first to second stage: petition must state an arguable constitutional claim)
- People v. Coleman, 183 Ill. 2d 366 (1998) (postconviction petition requirements and process)
- People v. Davis, 156 Ill. 2d 149 (1993) (counsel’s obligations to present claims raised by the petitioner)
- People v. Steidl, 142 Ill. 2d 204 (1991) (procedural posture and standards referenced by defendant)