2018 IL App (5th) 140385
Ill. App. Ct.2018Background
- Jesse Wallace pled guilty under a complex plea agreement in 2011: in exchange for pleading to one count, the State dismissed other state charges and represented that federal prosecutors would not bring charges if he pled that day; sentence agreed was 15 years and a $2,000 drug assessment.
- Wallace later filed a pro se motion to withdraw his plea alleging ineffective assistance of plea counsel (conflict by prior counsel who had represented the CI, rushed plea, threats about federal prosecution) and that the court’s Rule 402 admonitions were insufficient.
- The trial court denied the motion to withdraw; Wallace appealed, and this court vacated and remanded once for statutory sentencing-admonition defects; a subsequent direct appeal was dismissed for failure to first move to withdraw the plea.
- Wallace filed a pro se postconviction petition; the trial court advanced it to second-stage and appointed counsel (Chancey). Chancey reviewed records and corresponded with Wallace but filed no amended petition or Rule 651(c) certificate and concluded he found no meritorious amendments.
- The State moved to dismiss on forfeiture/res judicata grounds, arguing the claims were record-based and could have been raised on direct appeal. At the second-stage hearing Chancey argued the claims could not have been raised on appeal; the trial court dismissed the petition as forfeited.
- The Fifth District reversed: appointed counsel failed to provide the “reasonable assistance” required under Rule 651(c) by not amending the petition (notably to allege ineffective assistance of postplea and appellate counsel), remanded for further second-stage proceedings, and directed correction of a $5/day pre-sentence credit against the $2,000 fine ($140 total).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Wallace) | Held |
|---|---|---|---|
| Whether postconviction counsel provided "reasonable assistance" under Rule 651(c) by failing to amend the pro se petition | Counsel reasonably declined to amend because the claims were forfeited or without merit; dismissal appropriate | Chancey failed to amend to include ineffective-assistance-of-appellate/postplea counsel claims that would avoid forfeiture; thus assistance was unreasonable | Counsel did not provide reasonable assistance; reversal and remand required because routine amendment was necessary to avoid forfeiture |
| Whether the petition’s claims were forfeited / barred by res judicata because they could have been raised on direct appeal | All claims were record-based and could have been raised on direct appeal; therefore forfeited | Some claims (advice/threats by plea counsel) involved matters outside the record and could not effectively be raised on direct appeal; Rule 402 claim was not previously raised | Court declined to resolve forfeiture on merits because counsel’s failure to amend prevented proper consideration; remanded so claims can be properly presented |
| Whether the trial court had considered and rejected ineffective-assistance-of-plea-counsel claims such that postconviction relief is foreclosed | Trial court previously considered plea-counsel effectiveness at motion-to-withdraw hearing and rejected it on the record | Prior proceedings did not resolve contestable factual issues (e.g., testimony of attorneys) and cannot foreclose postconviction claims that require evidence outside the record | Court held those claims could not be resolved on the existing record and should not be dismissed on that basis at second stage without proper amendment/investigation |
| Whether Wallace is entitled to $5/day credit against the statutory drug-assessment fine for pre-sentence custody | State conceded Wallace was entitled to the credit | Wallace sought the credit | Court ordered mittimus amended to reflect $5/day for 28 days = $140 credit against the $2,000 fine |
Key Cases Cited
- People v. Turner, 187 Ill.2d 406 (1999) (postconviction counsel must amend pro se petition to allege ineffective assistance of appellate counsel where necessary to avoid forfeiture)
- People v. Greer, 212 Ill.2d 192 (2004) (Post-Conviction Hearing Act provides a statutory right to reasonable—not constitutional—assistance; Rule 651(c) duties explained)
- People v. Kuehner, 2015 IL 117695 (2015) (when court advances a petition as not frivolous, appointed counsel who disagrees must specifically demonstrate why the petition lacks merit when seeking withdrawal)
- People v. Russell, 2016 IL App (3d) 140386 (2016) (postconviction counsel’s failure to make the routine amendment alleging ineffective assistance of appellate counsel can overcome a Rule 651(c) compliance presumption and require remand)