2019 IL App (2d) 160439
Ill. App. Ct.2019Background
- In 2003 defendant Luster T. Scott was convicted after a jury trial of multiple offenses related to a December 11, 2002 bank parking lot shooting and sentenced to 22 years.
- At a pretrial suppression hearing detectives testified they read Miranda warnings and did not physically coerce Scott; Scott testified he asked for counsel, was not Mirandized, and later denied making incriminating statements; court suppressed some arrest-period statements but admitted others.
- Scott’s direct appeal was affirmed and certiorari was denied by the U.S. Supreme Court in April 2007. In October 2007 Scott mailed a pro se postconviction petition; the clerk received and filed it in early November 2007.
- The petition was initially dismissed as untimely; on appeal the court remanded after Scott supplied a witness affidavit (Jon McClain) that arguably supported claims of counsel ineffectiveness for not calling McClain at the suppression hearing.
- An amended postconviction petition filed in October 2015 alleged counsel was ineffective for failing to investigate/call McClain and for failing to investigate physical abuse by police; the State moved to dismiss as untimely and meritless.
- The trial court dismissed the petition as untimely; the appellate court held the amended Supreme Court Rule 12(b) (mailbox proof using 1-109 certification) applied retroactively and Scott’s proof substantially complied, so the petition was timely, but affirmed dismissal on the merits.
Issues
| Issue | State's Argument | Scott's Argument | Held |
|---|---|---|---|
| Timeliness under mailbox rule / proof of mailing | Amendment to Rule 12(b) didn’t help Scott; his proof failed §1-109 and was postmarked after deadline | Rule 12(b) amendment applies retroactively; his proof of service plus affirmation under penalty of perjury substantially complied | Rule 12(b) amendment applies retroactively here and Scott’s proof substantially complied; petition was timely |
| Retroactivity of Rule 12(b) amendment | Amendment should not apply because proceedings were complete earlier (Hunter) | Amendment is procedural and retroactive under 5 ILCS 70/4 and applies because there were ongoing proceedings | Amendment is procedural and applies retroactively here because proceedings were ongoing on remand |
| Ineffective assistance for failing to call McClain to support invocation of counsel / suppress statements | Even if counsel erred, Scott cannot show prejudice because evidence against him was overwhelming | McClain’s affidavit showed counsel unreasonably failed to investigate and call a witness whose testimony might have changed suppression result | No prejudice shown; independent and overwhelming nonconfession evidence (identifications, clothing, gun, physical trace evidence) defeats claim |
| Ineffective assistance for failing to investigate alleged physical coercion | Alleged coercion is rebutted by record; counsel did file a suppression motion and Scott did not testify to being struck at the hearing | Counsel failed to investigate/present coercion evidence; coerced confession would be prejudicial per Wrice | Claim rebutted by the trial record (Scott denied other events at hearing and detectives denied striking him); no substantial showing of coercion or prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffectiveness standard requiring deficient performance and prejudice)
- Secura Ins. Co. v. Illinois Farmers Ins. Co., 232 Ill. 2d 209 (2009) (minor defects in proof of service excused when substantial compliance exists)
- People v. Lander, 215 Ill. 2d 577 (2005) (remand required when counsel failed to comply with Rule 651(c) for postconviction proceedings)
- Curtis v. Pekin Ins. Co., 105 Ill. App. 3d 561 (1982) (typographical or inadvertent errors in filings not normally fatal)
- Ingrassia v. Ingrassia, 156 Ill. App. 3d 483 (1987) (proof of service by mail must substantially comply with Rule 12)
- People v. Petrenko, 237 Ill. 2d 490 (2010) (application of Strickland standard in Illinois criminal cases)