2017 IL App (1st) 150587
Ill. App. Ct.2018Background
- Cordell Perry was convicted of first-degree murder (2005 shooting) and sentenced to 65 years; conviction affirmed on direct appeal.
- In a pro se successive postconviction petition (2013) Perry claimed actual innocence and attached a notarized affidavit purportedly from eyewitness Latavia Hayden recanting her trial ID of Perry.
- The petition advanced to the second stage; public defender postconviction counsel was appointed and initially filed a Rule 651(c) certificate saying the petition need not be amended.
- The State investigated and obtained an ASA interview in which Hayden reportedly said she did not sign the affidavit and had lost her ID; counsel then moved to withdraw Hayden’s affidavit and substituted Perry’s self-serving affidavit.
- At the second-stage hearing counsel waived notice, offered no argument, and the court dismissed the petition as frivolous for lack of competent supporting evidence; the court also assessed $105 in fees.
- On appeal Perry argued his postconviction counsel provided unreasonable assistance by withdrawing Hayden’s affidavit over his objection and effectively agreeing to dismissal; he sought remand with new counsel.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Whether postconviction counsel rendered reasonable assistance by withdrawing a key supporting affidavit over defendant’s objection | Counsel investigated & affidavit had no evidentiary value; withdrawal was proper and dismissal warranted | Withdrawing the affidavit (instead of standing on the petition or moving to withdraw) was affirmative, prejudicial, and deprived Perry of reasonable assistance | Counsel’s actions fell below Rule 651(c) standard; withdrawal over objection and tacit agreement to dismissal was unreasonable; reversal and remand ordered |
| Whether trial court properly dismissed the successive petition at second stage after affidavit withdrawal | Dismissal proper because remaining affidavit (Perry’s) could not meet actual-innocence standard | Dismissal improper because petition depended on Hayden’s affidavit; Perry was denied opportunity to respond to counsel’s actions | Dismissal reversed; remand for new second-stage proceedings with new counsel |
| Whether counsel should have moved to withdraw as counsel rather than remove affidavit | Removing affidavit was within counsel’s ethical duties when affidavit unreliable | Counsel should have either stood on petition or moved to withdraw to preserve client’s procedural rights | Court requires new counsel who may either represent or properly move to withdraw; previous counsel’s maneuvering improper |
| Whether the $105 fees for filing a frivolous petition could be assessed | Fees warranted due to frivolous petition after affidavit removed | Fees improper because dismissal is reversed and counsel’s conduct undermined fee finding | Fees vacated pending proceedings on remand |
Key Cases Cited
- People v. Kuehner, 2015 IL 117695 (postconviction counsel must explain basis for withdrawing after a petition advances)
- People v. Edwards, 2012 IL 111711 (exception for successive petitions based on actual innocence; standards for newly discovered evidence)
- People v. Pendleton, 223 Ill. 2d 458 (scope of Rule 651(c) and standard of review at second stage)
- People v. Coleman, 183 Ill. 2d 366 (postconviction relief limited to constitutional deprivations occurring at original trial)
- Schlup v. Delo, 513 U.S. 298 (gateway actual-innocence standard for overcoming procedural bars)