People v. Schlosser
2017 IL App (1st) 150355
| Ill. App. Ct. | 2017Background
- John Schlosser was convicted after a bench trial of involuntary manslaughter, two counts of aggravated battery, and two counts of home invasion and sentenced to 22 years' imprisonment; on direct appeal this court vacated several convictions but left two convictions and the aggregate sentence intact.
- Schlosser filed a pro se postconviction petition alleging insufficient evidence of forced entry, unfair sentence, and failure to call character witnesses; counsel was appointed for second-stage review.
- Appointed counsel (APD) initially filed a Rule 651(c) certificate but made no amendments; the trial court dismissed the petition as conclusory and forfeited claims. This court reversed in 2012, finding counsel’s performance unreasonable and remanded for second-stage consideration with leave to amend.
- On remand the same APD was reappointed, made only a late amendment that belatedly alleged appellate counsel ineffectiveness, filed another Rule 651(c) certificate with minimal detail, and otherwise failed to adequately communicate with Schlosser or meaningfully prosecute the petition; the trial court again granted the State’s motion to dismiss.
- The appellate court held that reappointing the same counsel who previously provided unreasonable representation was error, Rule 651(c) duties were not satisfied, and remand was required for appointment of new postconviction counsel with leave to amend and to pursue supporting documentation and claims (including resentencing issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reappointment of the same postconviction counsel after this court found his prior representation unreasonable was permissible | State: no waiver; remand did not require new counsel | Schlosser: reappointment denied him reasonable assistance because prior counsel had failed to perform Rule 651(c) duties | Court: Error to reappoint same counsel; remand required to appoint new counsel |
| Whether Rule 651(c) duties were satisfied on remand | State: APD filed certificate; procedural formalities met | Schlosser: certificate and record show inadequate communication, no meaningful amendments, and failures to attempt to overcome procedural bars | Court: Rule 651(c) not satisfied; communications and amendments inadequate |
| Whether deficiencies required automatic dismissal or remand for new second-stage proceedings | State: dismissal was proper; defendant waived challenge by not requesting new counsel earlier | Schlosser: inadequate representation requires remand regardless of petition merit | Court: Under Supreme Court precedent, inadequate counsel requires remand for trial court to determine merits on a complete record; waiver argument rejected |
| Scope of relief on remand | State: (implicit) limited relief or none | Schlosser: new counsel, leave to amend, opportunity to add supporting docs, and possible resentencing consideration | Court: Remand with directions to appoint new counsel, leave to amend, file new Rule 651(c) certificate, and serve defendant with opinions; reconsider second-stage evaluation |
Key Cases Cited
- Turner v. United States, 187 Ill. 2d 406 (supreme court case discussing postconviction counsel adequacy) (appointing new counsel when prior counsel was inadequate supports remand)
- Suarez v. Illinois, 224 Ill. 2d 37 (Illinois Supreme Court) (remand required where postconviction counsel failed to fulfill Rule 651 duties regardless of petition merit)
- Pendleton v. State, 223 Ill. 2d 458 (Illinois Supreme Court) (second-stage burden and postconviction procedure)
- Johnson v. State, 154 Ill. 2d 227 (Illinois Supreme Court) (postconviction counsel must shape and present pro se claims)
- Perkins v. State, 229 Ill. 2d 34 (Illinois Supreme Court) (counsel must attempt to overcome procedural bars to adequately present claims)
- Boclair v. State, 202 Ill. 2d 89 (Illinois Supreme Court) (third-stage evidentiary hearing after substantial showing)
- Flores v. State, 153 Ill. 2d 264 (Illinois Supreme Court) (Act contemplates reasonable assistance standard)
- Lacy v. State, 407 Ill. App. 3d 442 (App. Ct.) (overview of postconviction stages and procedures)
- Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564 (App. Ct.) (de novo review explained)