2016 IL App (3d) 140386
Ill. App. Ct.2016Background
- Victor Russell was convicted of first-degree murder based on eyewitness identification; no physical evidence tied him to the scene. His direct appeal affirming the conviction was decided in 2011.
- Russell filed a pro se postconviction petition raising unreliable identification, actual innocence, insufficiency of proof, erroneous admission of other-crimes evidence, and alleged grand-jury perjury.
- Appointed postconviction counsel filed a Rule 651(c) compliance certificate but did not amend the pro se petition. The State moved to dismiss.
- The trial court dismissed the petition at the second stage: it found several claims res judicata or waived (including the other-crimes claim), rejected the affidavit as failing to support actual innocence, and held the perjury allegation did not implicate constitutional error.
- Russell moved for leave to file a late appeal; the appellate court granted it. The main issue on appeal was whether postconviction counsel provided a reasonable level of assistance under Rule 651(c) by failing to amend the petition to allege ineffective assistance of appellate counsel for the waived other-crimes claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postconviction counsel provided reasonable assistance under Rule 651(c) | State: counsel’s certificate shows compliance; the other-crimes claim lacked merit so no amendment was necessary | Russell: counsel should have amended to allege ineffective assistance of appellate counsel to preserve review of the other-crimes claim | Counsel failed to provide reasonable assistance by not making the routine amendment; remand required for new counsel to replead |
| Whether failure to amend must be shown to have caused prejudice | State: omission harmless because claim meritless | Russell: prejudice need not be shown when Rule 651(c) duties are not performed | Court: no prejudice showing required; noncompliance with Rule 651(c) requires remand regardless of claim merit |
| Whether the other-crimes evidence claim was waived vs preserved | State: issue was waived by failure to raise on direct appeal | Russell: ineffective assistance of appellate counsel is an exception to waiver and should have been pleaded | Court: ineffective-assistance exception applies; failure to plead it foreclosed consideration and was a Rule 651(c) lapse |
| Proper remedy for Rule 651(c) noncompliance | State: dismissal was correct on merits | Russell: remand for appointment of new counsel and opportunity to replead | Court: reverse and remand with directions to allow repleading with new counsel |
Key Cases Cited
- People v. Turner, 187 Ill. 2d 406 (1999) (ineffective-assistance-of-appellate-counsel is an exception to procedural waiver and routine to plead in postconviction petitions)
- People v. Suarez, 224 Ill. 2d 37 (2007) (no constitutional right to postconviction counsel; Rule 651(c) defines the required reasonable assistance)
- People v. Greer, 212 Ill. 2d 192 (2004) (counsel need not amend to advance frivolous or patently meritless claims)
- People v. Marshall, 375 Ill. App. 3d 670 (2007) (a filed Rule 651(c) certificate creates a presumption of compliance that the record can rebut)