2023 IL 127789
Ill.2023Background
- Ernesto Urzua was convicted of attempted murder (sentenced to 48 years) and filed a pro se postconviction petition alleging, inter alia, actual innocence supported by an attached statement from Markus Spires (signed under penalty of perjury but not notarized).
- The circuit court advanced the petition to second-stage and appointed counsel (Haskell). After investigation Haskell sought leave to withdraw under People v. Greer and filed a Rule 651(c) certification.
- The court granted appointed counsel’s Greer motion and gave Urzua time to retain private counsel; the State then filed a motion to dismiss arguing, among other points, that Spires’s unnotarized statement was deficient.
- Retained counsel (Haiduk) later entered, adopted the pro se petition, filed a Rule 651(c) certificate, but did not supplement the petition with a notarized affidavit or other evidence; at the dismissal hearing he argued the unnotarized statement sufficed as "other evidence."
- The circuit court granted the State’s motion to dismiss based on the lack of notarization; the appellate court reversed, finding retained counsel’s assistance unreasonable and remanding for new counsel to comply with Rule 651(c).
- The Illinois Supreme Court affirmed in part and reversed in part: it held the Greer withdrawal was not a merits decision, held petitioners are entitled to reasonable assistance from retained counsel, found the Rule 651(c) presumption rebutted here, and remanded for the petitioner to respond to the State’s motion to dismiss (but declined to order a second statutory appointment).
Issues
| Issue | Urzua's Argument | State's Argument | Held |
|---|---|---|---|
| Whether granting appointed counsel’s Greer motion was a merits ruling that ended right to counsel | Granting Greer withdrawal did not decide the petition’s merits because the State had not filed a motion to dismiss and the court made no merits findings | Greer + counsel’s Rule 651(c) certification meant petitioner’s statutory right to counsel ended and the petition was effectively disposed | Court: Granting Greer withdrawal was not dispositive absent a merits finding; the petition remained pending and further proceedings were required |
| Whether petitioners are entitled to reasonable assistance from retained counsel under the Act | Urzua: Yes — the Act requires reasonable assistance from any counsel (appointed or retained) | State: Successive or retained counsel are not entitled to the Act’s protections once appointed counsel withdrew | Court: Petitioner is entitled to reasonable assistance from retained counsel during postconviction proceedings |
| Whether retained counsel’s Rule 651(c) certificate created an unrebutted presumption of reasonable assistance | Urzua: No — retained counsel adopted the pro se petition but failed to amend or cure the unnotarized affidavit, rebutting the presumption | State: The certificate stands; any alleged defects do not show unreasonable assistance without prejudice showing | Court: The certificate’s presumption was rebutted here because retained counsel adopted the petition but failed to amend or cure the notarization defect |
| Whether the State may argue prejudice from counsel’s alleged deficiency (forfeiture) | Urzua: The State forfeited any prejudice argument by not raising it below | State: If the right to counsel continued, any reversal should turn on whether Urzua was prejudiced by counsel’s conduct | Court: The State forfeited the prejudice argument in this court and cannot raise it now |
Key Cases Cited
- People v. Greer, 212 Ill.2d 192 (Ill. 2004) (postconviction counsel may withdraw when claims are frivolous; counsel must explain basis for withdrawal)
- People v. Owens, 139 Ill.2d 351 (Ill. 1990) (no constitutional right to counsel in postconviction proceedings; right derives from the Act)
- People v. Johnson, 154 Ill.2d 227 (Ill. 1993) (trial court may presume counsel tried to obtain supporting affidavits absent record showing otherwise)
- People v. Turner, 187 Ill.2d 406 (Ill. 1999) (Act and Rule 651 ensure reasonable level of assistance)
- People v. Pendleton, 223 Ill.2d 458 (Ill. 2006) (standards for second- and third-stage postconviction proceedings)
- Pelham v. Griesheimer, 92 Ill.2d 13 (Ill. 1982) (ethical duty of loyalty and zealous representation)
- People v. Spreitzer, 143 Ill.2d 210 (Ill. 1991) (no absolute requirement that counsel must amend a pro se postconviction petition)