THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. KOMES, Defendant-Appellant.
No. 2-10-0014
Appellate Court of Illinois, Second District
June 24, 2011
2011 IL App (2d) 100014
Appellate Court
People v. Komes, 2011 IL App (2d) 100014
Appellate Court Caption: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. KOMES, Defendant-Appellant.
District & No.: Second District Docket No. 2-10-0014
Filed: June 24, 2011
Held: The trial court‘s grant of the motion to withdraw filed by defendant‘s postconviction counsel and its grant of the State‘s subsequent motion to dismiss defendant‘s postconviction petition were both vacated and the cause was remanded where the record was insufficient to show counsel‘s compliance with the requirements of Supreme Court Rule 651(c), and on remand, the trial court was directed to require counsel to document compliance with Rule 651(c) and to demonstrate the frivolity of all of defendant‘s claims—predatory criminal sexual assault of a child.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 04-CF-30; the Hon. Grant S. Wegner, Judge, presiding.
Judgment: Vacated and remanded with directions.
Eric C. Weis, State‘s Attorney, of Yorkville (Lawrence M. Bauer and Mary Beth Burns, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel: JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
OPINION
¶ 1 This is the appeal by defendant, David W. Komes, of the second-stage dismissal of his petition under the Post-Conviction Hearing Act (Act) (
¶ 2 Defendant was charged with six counts of predatory criminal sexual assault of a child (
¶ 3 Defendant moved to suppress a statement that he made to the Yorkville police, on the ground that he had intellectual impairments that prevented him from validly waiving his Miranda rights. A court-ordered evaluation showed that he was of low-normal intelligence and had learning disabilities that particularly impaired his ability to understand spoken language. He did not understand the concept of “rights,” but did understand specific rights. Based on this report, defense counsel withdrew the motion to suppress.
¶ 4 Defendant had a jury trial, which resulted in a guilty verdict on every count. Evidence included a videotaped confession that defendant made to the Yorkville police, testimony from the two victims, and evidence of damage to the hymen of one victim. Defendant exercised his right to testify. His testimony, as transcribed, suggests below-normal communication skills.
¶ 6 Defendant filed a direct appeal in which he asserted that the evidence was insufficient and that the court had allowed too much leading questioning of the victims. We rejected these claims. People v. Komes, No. 2-05-0246 (2006) (unpublished order under
¶ 7 Defendant then filed a postconviction petition that contained what he categorized as 18 separate claims. (We count seven distinct issues.) These included claims that trial counsel was ineffective for failing to seek further evaluation of his mental status, and that the Yorkville police had coerced his confession.
¶ 8 He also asserted that new evidence showed that Bruce Ford, father of one of the victims and stepfather of the other, was the true perpetrator of the abuse but had coached the victims to incriminate defendant. In support of this claim, he attached newspaper clippings containing reports that, in early 2006, the Yorkville police had arrested Ford for a sex crime that Ford had committed in his own home against a female child under the age of 13, and that Ford had died about a week after the arrest. Defendant asserted that Ford had committed suicide. Defendant further asserted that a videotape of an investigative interview of the victims (which the court had suppressed on defense counsel‘s motion) also supported his innocence in that both the victims had made statements that implied that Ford had told them what to say.
¶ 9 The way the petition is written is consistent with a person with language-related intellectual impairments.
¶ 10 Within 90 days of the petition‘s filing, the court entered an order in which it ruled that “the petition [was] not subject to dismissal under § 122-2.1“; it therefore appointed private counsel for defendant. The court later substituted the public defender as counsel.
¶ 11 The record shows seven appearances by attorneys from the public defender‘s office on defendant‘s behalf. At several of these appearances, the attorneys described their work relating to the petition.
¶ 12 First, on December 7, 2007, assistant public defender Matthew Fuesting appeared on defendant‘s behalf. He said that he had spoken to defendant by telephone to discuss waiving attorney-client confidentiality as to trial counsel so that Fuesting could better develop the ineffective-assistance claims.
¶ 13 Second, on February 14, 2008, Fuesting appeared with defendant. Fuesting said that he had spoken to defendant before court and that, based on this, Fuesting was considering adding claims to the petition. Fuesting also said that he had examined the record and was then reviewing the materials that defendant had obtained through pretrial discovery. Defendant told the court that he agreed to waive attorney-client privilege.
¶ 14 Third, on April 28, 2008, Fuesting appeared with defendant. Fuesting told the court that, two weeks before, he had had a telephone conversation with defendant. Defendant had given him additional information. Fuesting had read through some of the transcripts and was reviewing videos.
¶ 16 Fifth, on September 30, 2008, Emerson, who appeared with defendant, told the court that she was in the process of reading the transcripts.
¶ 17 Sixth, on November 25, 2008, Chuffo appeared with defendant, but said nothing except that she needed a new status date.
¶ 18 Seventh, on January 26, 2009, Emerson appeared with defendant. She agreed to file an amended petition by March 2, 2009, but did not say anything further about her work on defendant‘s behalf.
¶ 19 On March 23, 2009, Emerson had not filed an amended petition, and the State filed a motion to dismiss all claims.
¶ 20 While the motion to dismiss was pending, Emerson filed a motion to withdraw as postconviction counsel. In it, she alleged that she had read the full record in the case and had found no meritorious issue. She further alleged that she had sent defendant a letter in which she informed him of her opinion. The motion was accompanied by an affidavit of Emerson‘s in which she averred the truthfulness of the allegations in the motion.
¶ 21 With the motion, Emerson filed a memorandum of law. The first issue that she addressed in the memorandum was
“In this case, counsel did not file a certificate of compliance with Supreme Court
Rule 651(c) . However, examination of the record shows counsel complied with the requirements of the rule.a. Consultation with Petitioner. The Petitioner was present in court for several status hearings with counsel. He was present in court for February 14, 2008; April 28, 2008; June 30, 2008; September 30, 2008; November 25, 2008; and January 26, 2009. Counsel spoke with the Defendant regarding his case and specific cases the Petitioner wished for counsel to review in order to proceed on his petition while he was in the holding cells following his court appearance.”
She also said that “[c]ounsel ha[d] completed a thorough review of the police reports (including video tape statement, psychological evaluation, trial and hearing transcripts, and appellate briefs, appellate opinion,” and that “[c]ounsel ha[d] reviewed the pro se petition and determined that it was sufficient.”
¶ 22 Emerson‘s memorandum addressed the merits of a single issue, explaining why she had deemed frivolous defendant‘s claim that trial counsel was ineffective for failing to seek an evaluation of his fitness.
¶ 23 We note that the dates on which Emerson described “counsel” as having appeared with defendant are the dates of three appearances by Fuesting, two appearances by Chuffo, and two appearances by Emerson. Therefore, when the memorandum said that “counsel” did something, it meant Fuesting, Chuffo, or Emerson without distinction.
¶ 24 We further note that the record does not show that any attorney spoke with defendant after court on any day. It shows that Fuesting represented that he had spoken to defendant by telephone twice and in person before court once. It also shows that Emerson and Fuesting both represented to the court that they had reviewed certain documents.
“As I indicated in my motion, I have thoroughly reviewed this case file, I‘ve spoken with Mr. Komes regarding some of the issues he wanted addressed, I reviewed cases he asked me to review, and based on my entire review, I don‘t believe that there is any issue with any merit and I believe that it would be frivolous for me to file an amended Post-conviction petition and to proceed any further.” (Emphasis added.)
¶ 26 Four months after allowing counsel to withdraw, the court heard the State‘s motion to dismiss. Defendant argued that, because he did not have the record, he could not make proper amendments to the petition. The court granted the State‘s motion, and defendant timely appealed.
¶ 27 Defendant now argues that postconviction counsel‘s motion was insufficient under Greer and related precedent. He further argues that, given the possibility that his counsel might have developed his actual-innocence claim (that is, the claim based on Ford‘s suicide), the rule in Greer bars us from affirming on the alternative basis that counsel complied with
¶ 28 The motion was plainly less than what the Greer court described as sufficient. Further, the record does not satisfy Greer‘s standards for when a reviewing court can affirm a withdrawal of counsel despite an insufficient motion.
¶ 29 The Greer court said that a proper motion to withdraw should include an explanation of why all of the petitioner‘s claims are frivolous or patently without merit. It also held that a reviewing court can uphold the grant of such a motion despite its deficiency if the record shows that counsel complied with the requirements of
“The record itself demonstrates that defendant‘s postconviction allegations were patently without merit and frivolous. Under the circumstances, the Act presents no impediment to withdrawal of counsel. Although we hasten to emphasize that [counsel used the wrong standard in addressing the viability of the defendant‘s claims], and that an attorney moving to withdraw should make some effort to explain why defendant‘s claims are frivolous or patently without merit, it nonetheless appears that counsel fulfilled his duties as prescribed by Rule 651(c), and the record before us supports counsel‘s assessment that the defendant‘s postconviction claims were frivolous and without merit. Consequently, though the procedure in the circuit court leaves something to be desired, defense counsel should be allowed to withdraw, and we affirm the judgment of the appellate court in that respect.” (Emphasis added and in original.) Greer, 212 Ill. 2d at 211-12.
For counsel moving to withdraw, the critical point in this passage is the court‘s description of a proper motion to withdraw. Counsel must make an effort to explain why the petitioner‘s “claims” are frivolous—we draw attention to the use of the plural noun. Given the ethical concerns underlying the court‘s reasoning (see Greer, 212 Ill. 2d at 205-07), “claims” logically must mean all of the petitioner‘s claims. This is because any claim that will potentially allow counsel to produce a nonfrivolous amended petition is sufficient to give counsel an ethical basis to continue representation.1
¶ 31 Here, the motion was not in the form prescribed by Greer: it addressed only one of the seven issues that defendant raised. Not only that, it was not nearly as detailed as the motion in Greer:
“Counsel [filed a motion that] stated that he had reviewed the record, transcripts of proceedings, the State‘s Attorney‘s files, and had interviewed ‘all relevant parties,’ including defendant; however, he could find ‘no basis on which to present any meritorious issue for review.’ Counsel supported his motion with a brief purporting to comply with Anders v. California, 386 U.S. 738 (1967), procedures. In that brief, counsel meticulously detailed his activities after appointment and, with respect to each of defendant‘s contentions, stated that he could not ‘properly substantiate’ defendant‘s claim, concluding that petitioner‘s claim was ‘not meritorious.’ Counsel suggested that he had considered other possible issues, but could find no issue of merit.” Greer, 212 Ill. 2d at 200.
The motion here contained no comparable particulars.
¶ 32 Because the motion was not in the prescribed form, we next must ask whether counsel complied with the requirements of
“[T]hat the attorney*** consult[ ] with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, *** examine[ ] the record of the proceedings at the trial, and *** ma[k]e any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner‘s contentions.”
Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984).
Moreover, counsel‘s duty to amend the petition includes the duty to fill at least certain kinds of omissions in the petition, even when that means seeking new evidence. See People v. Johnson, 154 Ill. 2d 227, 241 (1993) (holding that a presumption exists that “counsel [has] made a concerted effort to obtain affidavits in support of the [otherwise nonviable] post-conviction claims“); see also People v. Waldrop, 353 Ill. App. 3d 244, 249-50 (2004) (holding that counsel had provided less-than-reasonable assistance when the record showed a failure to seek such affidavits).
¶ 34 Defendant‘s argument focuses on an asserted failure of counsel to develop defendant‘s actual-innocence claim. Counsel can know if a claim requires further development only if he or she has discussed that specific claim with the petitioner. For example, while a claim may have some superficial appeal, the attorney may be barred from presenting it due to ethical concerns. Alternatively, consultation might reveal that an apparently viable claim lacks a factual basis. In Greer, unlike this case, counsel reported to the court that he had interviewed all relevant parties, including the defendant, and then stated that he “could not ‘properly substantiate’ defendant‘s claim,” concluding that the defendant‘s claim was ” ‘not meritorious.’ ” Greer, 212 Ill. 2d at 200. As the Illinois Supreme Court stated in Greer, “Fulfillment of the third obligation under
¶ 35 The discussion of
¶ 36 Because we lack a record of counsel‘s compliance with the requirements of
¶ 37 Vacated and remanded with directions.