2018 IL App (2d) 170120
Ill. App. Ct.2018Background
- In 2005 Moore was tried for attempted first-degree murder and aggravated discharge of a firearm based on a shooting in Aurora; the jury convicted him and he was sentenced to 23½ years.
- During trial the State amended the indictment twice: (1) from “shot Julian Ramos” to “shot at Julian Ramos” and later (2) substituting “another” for the named victim because the State could not locate Julian Ramos. Defense objected to the second amendment. The court allowed both amendments.
- The key eyewitness was an FBI informant, Blake Pannell, who recorded the group pursuing a pedestrian; the audio/transcript did not name Ramos. Montes admitted firing one shot; Pannell testified the gun belonged to Moore. Ramos did not testify.
- Moore’s lengthy pro se postconviction petition raised numerous claims including that appellate counsel was ineffective for not challenging the indictment amendments that removed Ramos’s name. The petition advanced to second-stage review because the trial court did not act within 90 days.
- Appointed postconviction counsel filed a Rule 651(c) certificate and a motion to withdraw but did not address or acknowledge Moore’s specific claim about appellate counsel failing to challenge the indictment amendments. The court granted leave to withdraw and later dismissed the petition on the State’s motion. Moore appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed postconviction counsel properly complied with Ill. S. Ct. R. 651(c) before moving to withdraw | The State (and trial court) treated counsel’s Rule 651(c) certificate and motion as sufficient and proceeded to dismissal | Moore contends counsel failed to ascertain and present all pro se claims (specifically the appellate-ineffectiveness claim about the indictment amendment), so withdrawal was improper | Vacated the withdrawal and dismissal: counsel did not demonstrate compliance with Rule 651(c) because she failed to ascertain/recognize the amendment claim |
| Whether the trial court properly allowed indictment amendments at trial (naming/identity issue) | State argued the victim’s name was surplusage and the amendment conformed the indictment to the evidence showing an individual was shot at | Moore argued the amendments broadened elements and prejudiced him; appellate counsel should have raised this on direct appeal | Not decided on merits: court remanded because of Rule 651(c) violation, so claim must be reexamined by new postconviction counsel |
| Standard for reviewing motions to withdraw when a petition advanced by court inaction | The State relied on Greer and record to uphold withdrawal | Moore stressed Kuehner and Greer but argued counsel must address all pro se claims or show Rule 651(c) compliance | Court applied Greer (petition advanced by inaction) and held Rule 651(c) compliance is required; counsel here did not satisfy it |
| Remedy when Rule 651(c) noncompliance shown | State sought dismissal to conserve resources | Moore sought appointment of new counsel and remand for reconsideration | Court vacated withdrawal and dismissal and remanded for appointment of new postconviction counsel with directions to document Rule 651(c) compliance |
Key Cases Cited
- People v. Greer, 212 Ill. 2d 192 (2004) (postconviction counsel may withdraw if petition is frivolous but must comply with Rule 651(c))
- People v. Lander, 215 Ill. 2d 577 (2005) (Rule 651(c) compliance may be shown by certificate or record)
- People v. Pendleton, 223 Ill. 2d 458 (2006) (second-stage dismissal review is de novo and court must accept well-pleaded facts)
- People v. Suarez, 224 Ill. 2d 37 (2007) (court must not address merits when Rule 651(c) compliance is lacking)
- People v. Allen, 2015 IL 113135 (2015) (gists of constitutional claims required to advance past first stage)
- People v. Kuehner, 2015 IL 117695 (2015) (when petition advanced on court finding of potential merit, counsel’s motion to withdraw must explain why each pro se claim lacks merit)
- People v. Bailey, 2017 IL 121450 (2017) (standards for advancing to third-stage evidentiary hearing under the Post-Conviction Hearing Act)