People v. McDonald
2018 IL App (3d) 150507
Ill. App. Ct.2018Background
- Richard McDonald pled guilty (October 19, 2012) to felony and misdemeanor criminal damage and a Class 4 felony violation of an order of protection; plea colloquy included admonitions about MSR.
- Sentenced December 26, 2012 to concurrent and consecutive terms resulting in potential MSR: one conviction carried 1 year MSR; the order-of-protection conviction carried 4 years MSR.
- McDonald filed a pro se postconviction petition (July 30, 2014) alleging he was not fully informed that, as an indigent registered sex offender without suitable residence, his MSR could effectively extend his incarceration (“violated at the door”).
- Trial counsel James Cosby (also McDonald’s plea counsel) represented McDonald at the second-stage proceeding but did not file an amended petition; Cosby later withdrew and Edward Woller was appointed for the third stage.
- At the third-stage evidentiary hearing Woller presented only argument (invoking Padilla) and called no witnesses; the State called Cosby who testified he did not advise McDonald pre-plea about the necessity of a suitable MSR residence. The circuit court denied relief.
- On appeal McDonald argued third-stage counsel provided unreasonable assistance by failing to amend the petition to assert ineffective assistance of plea counsel; the appellate court vacated and remanded for counsel to file an amended petition and a new third-stage hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to pursue postconviction relief after release from custody | State: relief under the Post-Conviction Hearing Act requires the petitioner be in custody to obtain relief; moot if released | McDonald: timely filed while in custody; should remain eligible even if released before disposition | Court: a petitioner who timely files while in custody retains standing even if released before disposition; remand allowed (Davis, Dale tension resolved in favor of petitioner) |
| Whether postconviction counsel provided reasonable assistance at third stage | State: counsel’s failure to amend may be excused if the underlying claim lacked merit | McDonald: third-stage counsel unreasonably failed to amend pro se petition to assert ineffective assistance of plea counsel about MSR consequences | Held: counsel was unreasonable for failing to amend; remand required for counsel to file an amended petition before a new third-stage hearing (Turner) |
| Proper framing of the claim: court admonishments vs. ineffective assistance of counsel | State/court: Rule 402 admonishments limited to direct consequences; court admonition claim less likely to succeed | McDonald: claim should be shaped as ineffective assistance of counsel (counsel failed to advise about realistic MSR consequences) | Held: appellate court instructs counsel to amend to an ineffective-assistance claim (that second-stage argument is the prudent course) |
| Whether failure to advise about possible extended incarceration via MSR can be meritorious | State: contends such a claim might be meritless | McDonald: counsel had duty to advise about realistic exposure to incarceration (possible doubling of time) | Held: appellate court did not resolve the merits but found the issue at least arguable and that counsel’s failure to amend warranted remand regardless of merit (Jones/Suarez principle) |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (attorney duty to advise about certain collateral consequences may be required to render effective assistance)
- Turner v. United States, 187 Ill. 2d 406 (1999) (postconviction counsel must amend pro se petition when necessary to adequately present constitutional claims)
- People v. Dale, 406 Ill. 238 (1950) (Act intended for those actually deprived of liberty)
- People v. Davis, 39 Ill. 2d 325 (1968) (a petitioner who files while in custody may obtain relief even if released before disposition)
- People v. Pack, 224 Ill. 2d 144 (2007) (liberty interest central to Act; standing analysis)
- People v. Carrera, 239 Ill. 2d 241 (2010) (discussing custody/standing language under the Act)