2021 IL App (2d) 200231
Ill. App. Ct.2021Background
- In 2002 Gerardo Contreras was shot and paralyzed; no eyewitness identified the shooter at trial. Four years later Horatio Morales and Jamaal “Ike” Garcia implicated Ernesto Urzua; Urzua was convicted of attempted murder and found to have personally discharged a firearm, receiving an aggregate 48-year sentence (23 + 25-year enhancement).
- Urzua filed a pro se postconviction petition alleging, inter alia, ineffective assistance of trial counsel and actual innocence based on a statement by Markus Spires that Garcia confessed and appeared with a gun after the shooting; Spires’s statement was signed under penalty of perjury but not notarized.
- The circuit court advanced the petition to second-stage, appointed counsel (Ronald Haskell), who later moved to withdraw under People v. Greer after certifying compliance with Illinois Supreme Court Rule 651(c); the court allowed withdrawal because Urzua intended to retain private counsel.
- Retained counsel (McNamee & Mahoney; later Haiduk and Mahoney) filed their own Rule 651(c) certificate and largely adopted the pro se petition but made only cursory efforts to locate or obtain a notarized affidavit from Spires.
- The State moved to dismiss; the circuit court granted dismissal on the ground Spires’s unnotarized statement was procedurally defective and fatal at the second stage. Urzua appealed, arguing his retained postconviction counsel failed to provide the reasonable assistance required by the Act and Rule 651(c).
- The appellate court reversed and remanded for further second-stage proceedings with appointment of new counsel to comply with Rule 651(c), concluding (1) Urzua was entitled to reasonable assistance from his retained attorneys under these facts and (2) retained counsel unreasonably failed to attempt to obtain a proper notarized affidavit from Spires.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant retains a right to reasonable postconviction assistance from retained counsel after appointed counsel withdraws under Greer | State: Greer (and Thomas) extinguish any further statutory right to counsel after an appointed attorney withdraws; no entitlement to reasonable assistance from subsequent counsel | Urzua: He retained counsel after appointed counsel withdrew for reasons unrelated to claim merit; he is entitled to reasonable assistance from retained counsel | Court: Thomas is inapposite; where withdrawal was to permit defendant to retain counsel (not because claims lacked merit), defendant is entitled to reasonable assistance from retained counsel (and Granville Johnson supports reasonable-assistance right for retained counsel) |
| Whether retained counsel provided reasonable assistance by attempting to cure the procedural defect (unnotarized Spires statement) supporting actual-innocence claim | State: The unnotarized statement is a fatal procedural defect; dismissal appropriate; State did not press other merits on appeal | Urzua: Retained counsel failed to make reasonable efforts to locate Spires or obtain a notarized affidavit, violating Rule 651(c) duties | Court: Held counsel’s efforts were cursory and insufficient; failure to attempt to obtain a proper affidavit was unreasonable and directly caused dismissal |
| Effect of counsel’s Rule 651(c) certification when record suggests inadequate assistance | State: Certification creates presumption of reasonable assistance; Greer withdrawal bars further relief | Urzua: Certification is rebuttable; record can show failure despite certification | Court: Certification is rebuttable; record rebutted presumption because counsel clearly misunderstood notarization requirement and did not attempt to cure it |
| Remedy for unreasonable postconviction assistance | State: (no specific remedy argued on appeal) | Urzua: Remand for second-stage proceedings with new appointed counsel complying with Rule 651(c) | Court: Remanded for further second-stage proceedings; appoint new counsel and require compliance with Rule 651(c); court did not decide underlying merits |
Key Cases Cited
- People v. Greer, 212 Ill. 2d 192 (Ill. 2004) (appointed postconviction counsel may ethically withdraw when claims are frivolous)
- People v. Johnson, 2018 IL 122227 (Ill. 2018) (Granville Johnson) (defendant represented by counsel—retained or appointed—is entitled to a reasonable level of assistance under the Act)
- People v. Suarez, 224 Ill. 2d 37 (Ill. 2007) (failure to comply with Rule 651(c) requires remand for further proceedings)
- People v. Turner, 187 Ill. 2d 406 (Ill. 1999) (postconviction counsel must attempt to overcome procedural defects where possible)
- People v. Allen, 2015 IL 113135 (Ill. 2015) (unnotarized statement signed under penalty of perjury is a nonjurisdictional procedural defect; may be insufficient as an affidavit at second stage)
- People v. Milton Johnson, 154 Ill. 2d 227 (Ill. 1993) (courts ordinarily presume counsel made reasonable efforts to obtain affidavits unless record shows otherwise)
- People v. Waldrop, 353 Ill. App. 3d 244 (Ill. App. 2004) (postconviction counsel unreasonable where counsel mistakenly believed no duty to seek an affidavit identified in pro se petition)
- People v. Coleman, 2013 IL 113307 (Ill. 2013) (standards for actual-innocence claim: evidence must be new, material, noncumulative, and probably change result on retrial)