THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAHMAL PERKINS, Defendant-Appellant.
No. 2-04-0127
Second District
October 6, 2006
I concur with the opinion of the majority. The opinion, however, relies to some extent on this court‘s opinion in People v. Anderson, 352 Ill. App. 3d 934 (2004), which held that the trial court could not summarily dismiss a section 2-1401 petition, without notifying defendant, even though that court was cognizant of fatal flaws in the petition. However, the Anderson court did affirm the summary dismissal by the trial court in that case. Nonetheless, the holding reflected that the court erred in failing to follow notification procedures, albeit the error was harmless where defendant‘s petition was completely without merit. Anderson, 352 Ill. App. 3d at 946-47.
I wrote a concurrence in Anderson expressing my opinion that while I agreed with the outcome, it was my view that no error, harmless or otherwise, occurred in the court below. I continue to believe that if the appellate court is capable of recognizing that defendant‘s petition is fatally flawed and not amendable to successful amendment, there is no reason that the trial court cannot be trusted to do the same without useless procedural machinations. This view was also expressed by Justice Wolfson in Owens v. Snyder, 349 Ill. App. 3d 35, 41 (2004), cited in the majority opinion as well.
Ronald G. Matekaitis, State‘s Attorney, of Sycamore (Stephen E. Norris and Kendra S. Peterson, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE O‘MALLEY delivered the opinion of the court:
Defendant, Jahmal Perkins, appeals from the dismissal of his petition under the Post-Conviction Hearing Act (Act) (
I. BACKGROUND
A jury convicted defendant of armed violence (
On October 17, 2002, defendant mailed a “Petition to Vacate the Void Sentencing Judgment” and a “Petition for Postconviction Relief” to the circuit court. In the postconviction petition, he contended that the imposition of a term of mandatory supervised release (MSR) was unconstitutional in conjunction with determinate sentencing. In the “Petition to Vacate the Void Sentencing Judgment,” he contended that trial counsel had filed “several crucial motions” and a postconviction petition without notifying defendant. He also stated that the supreme court was considering issues relevant to his case in “People v. Evans, Washington, Case[ ]# 93959, 95951 and 84952” and that in these cases the court had found sentencing error.1
The court appointed the public defender to represent defendant, apparently treating both filings as a single postconviction petition. At an early status hearing, the State mentioned that it expected to file a motion to dismiss after defendant filed his amended petition. Shortly after that, counsel stated that he had correspondence from defendant and that he wanted to be sure that the amended petition incorporated everything that defendant wanted it to. On August 25, 2003, counsel filed a certificate pursuant to Supreme Court Rule 651(c) (
On January 26, 2004, the court heard argument on the State‘s motion to dismiss. Counsel asserted the merits of the petition, contending that defendant‘s “[f]irst and foremost” contention was “that the sentencing Court improperly took into consideration charges which were overturned on appeal [i]n sentencing the defendant.” He as-
On appeal, defendant argues that counsel failed to provide reasonable assistance, because he relied on arguments for the petition‘s timeliness that are contradicted by binding authority. Defendant contends that these arguments showed a lack of understanding of the law regarding timeliness. We take defendant to imply that, because counsel was unaware of the law, he probably did not ask defendant the questions necessary to amend the petition to allege a lack of culpable negligence in filing late. The State responds with two arguments. First, it asserts that because untimeliness is an affirmative defense, postconviction counsel need not anticipatorily amend a petition to allege a lack of culpable negligence in filing late. Instead, it asserts, counsel need address the issue only in response to the State‘s motion to dismiss. Second, citing People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005), the State argues that defendant has failed to show that facts existed such that counsel could have amended the petition to assert a lack of culpable negligence for his untimely filing. Therefore, the State asserts, defendant has not shown that counsel‘s failure to amend the petition prejudiced defendant. (The State does not claim, we note, that counsel‘s failure to address timeliness more cogently caused no prejudice for the additional reason that defendant‘s petition would have been dismissed for lack of merit even if its untimeliness was excused.)
II. ANALYSIS
Under the Act, an imprisoned defendant can mount a collateral attack on his conviction or sentence by alleging that either was the consequence of violations of his constitutional rights. People v. Erickson, 183 Ill. 2d 213, 222 (1998). Proceedings under the Act, where the
Under section 122-4 of the Act (
The first issue this case presents is what postconviction counsel‘s specific duties are with respect to a petition filed outside the statutory
Postconviction counsel normally has no duty to go beyond the record and the evidence mentioned in the petition to find new evidence supporting a defendant‘s claims. People v. Johnson, 154 Ill. 2d 227, 247 (1993). Further, Rule 651(c) does not specifically mention any duty of counsel to seek facts to respond to an untimeliness claim. Therefore, one could argue that consulting with a defendant to get evidence to overcome an untimeliness claim is beyond counsel‘s duty.
On the other hand, counsel is to amend the petition to make “‘an adequate presentation of petitioner‘s contentions.‘” Turner, 187 Ill. 2d at 412, quoting
The State makes a narrower argument. It contends that, although defendant argues that counsel had a duty to amend the petition to al-
Given that a defendant does have a right to reasonable assistance in fighting the State‘s untimeliness defense to his or her petition, the next question we must address is what test determines when he or she is entitled to relief. We must decide whether it is enough for a defendant to show that postconviction counsel provided less-than-reasonable assistance, or whether he or she must also show that the less-than-reasonable assistance caused him or her prejudice. If one assumes a two-prong test, analogous to that in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), showing that counsel here acted without understanding how to defend a late-filed petition against dismissal for untimeliness would satisfy only the first (lack of reasonable assistance) prong. To satisfy the second (prejudice) prong, defendant would have to show, at a minimum, some possibility that with reasonable assistance he could have alleged facts such that the court would not have dismissed the petition for untimeliness. Because, as we discussed, the right to postconviction counsel is statutory, not constitutional, Strickland is not automatically applicable to claims of less-than-reasonable assistance of postconviction counsel.
The determinative question here is what defendant must show beyond the mishandling of his case by postconviction counsel, that is, the extent to which defendant must show that counsel‘s errors harmed him. Were this a claim of ineffective assistance of trial counsel, made on direct appeal, defendant‘s right to counsel would derive from the sixth amendment (
Again, the right to counsel under the Act is purely statutory (Turner, 187 Ill. 2d at 410) and Strickland is thus not applicable, except potentially by analogy. Notably, for defendants not under the death sentence, the statutory right to counsel attaches only if a trial court reviews the defendant‘s petition and finds it to be neither frivolous nor patently without merit, or the trial court fails to enter a contrary finding within 90 days. Gaultney, 174 Ill. 2d at 418;
A core feature of a defendant‘s right to counsel under the Act is the entitlement to have counsel amend the original petition to make an adequate presentation of the defendant‘s contentions. The Act does not explicitly state this entitlement; courts interpret the Act to give defendants a right to, simply, a “‘reasonable level of assistance.‘” (Emphasis omitted.) Turner, 187 Ill. 2d at 410, quoting People v. Owens, 139 Ill. 2d 351, 364 (1990). However, Rule 651(c) makes explicit some of the duties that a “reasonable level of assistance” implies. See Turner, 187 Ill. 2d at 410. As noted, the rule requires a showing that counsel has “consulted with petitioner *** to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner‘s contentions” (
Illinois cases addressing claims of unreasonable assistance of post-conviction counsel fall into two lines, based on whether they apply a Strickland-like analysis, requiring the defendant to make a positive showing of prejudice, or whether they apply Rule 651(c). The Strickland-like line begins with People v. Ashley, 34 Ill. 2d 402, 411-12 (1966). The other line, typified by Turner and Johnson, is rooted in the enforcement of Rule 651(c). It plainly rejects a Strickland-like
Ashley and its progeny use a Strickland-like prejudice standard to evaluate claims of insufficient representation by postconviction counsel. (This line of cases originated before Strickland itself, but not before the principles familiar from Strickland were current in Illinois law.) Ashley stated:
“While petitioner strenuously argues that his representation in the post-conviction proceedings by appointed counsel was so inadequate, indifferent to his cause and incompetent as to amount to no representation at all, it is well settled that in order to establish incompetency of counsel, actual incompetent representation and substantial prejudice to the defendant as a result thereof must be established.” Ashley, 34 Ill. 2d at 411, citing People v. Gray, 33 Ill. 2d 349, 355 (1965), and People v. Morris, 3 Ill. 2d 437, 447 (1954) (both proto-Strickland cases involving trial counsel).
More directly on point is the later People v. Stovall, 47 Ill. 2d 42, 46 (1970):
“Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.
*** Where there is not a showing that sufficient facts or evidence exist[s], inadequate representation certainly will not be found because of an attorney‘s failure to amend a petition or, when amended, failing to make the petition‘s allegations factually sufficient to require the granting of relief.” Stovall, 47 Ill. 2d at 46.
The supreme court most recently used this kind of analysis in People v. Spreitzer, 143 Ill. 2d 210, 221 (1991), which quotes from the passage in Stovall given above.
The State cites this court‘s decision in Vasquez, but that case does not decide whether a defendant whose postconviction counsel failed to comply with Rule 651(c) must also show consequent prejudice in order to obtain relief. In Vasquez, we held that postconviction counsel was not required under Rule 651(c) to include a new claim in the defendant‘s postconviction petition. We then said:
“Even if it could be shown that postconviction counsel should have amended the petition to allege a violation of the Vienna Convention, to establish that postconviction counsel provided inadequate representation, defendant must show that the petition could have been amended to state a case upon which relief could be granted. [Citation.]” Vasquez, 356 Ill. App. 3d at 425.
We went on to explain that the claim that the defendant urged should have been included in his petition would not have stated a cause of action upon which relief could be granted. Vasquez, 356 Ill. App. 3d at 425.
Moreover, Vasquez presented a factual situation where, had the court applied a Strickland-type performance/prejudice analysis, the two prongs would have collapsed into one, because counsel‘s failure to raise the issue of trial counsel‘s omission of the Vienna Convention claim could not have been deemed inadequate performance (prong one) unless that issue had merit such that it would have changed the outcome of the postconviction proceeding (prong two). There are, however, situations where Strickland‘s performance and prejudice prongs are not so intertwined, allowing the adequacy of counsel‘s performance to be examined independently of the prejudice question. See, e.g., Strickland, 466 U.S. at 699-700, 80 L. Ed. 2d at 700-01, 104 S. Ct. at 2070-71 (counsel‘s decision of which mitigating evidence to present at sentencing found reasonable independently of prejudice prong); People v. Rodriguez, 364 Ill. App. 3d 304, 314 (2006) (counsel‘s decision not to ask alleged rape victim at trial whether or not she consented to the sexual contact found reasonable independently of prejudice).
Turner and Johnson take a different approach from Ashley and its progeny.2 In Turner, the court reversed the dismissal of a postconviction petition, stating that it “[would] not speculate” on what the outcome would have been if “counsel had adequately performed his duties under Rule 651(c).” Turner, 187 Ill. 2d at 416. Postconviction counsel‘s performance was inadequate in two ways: (1) he failed to amend the petition to cure a waiver problem by alleging that appellate counsel had been ineffective in not raising certain matters on direct appeal; and (2) he failed to amend the petition to state a claim for
In Turner, the State asserted that reversal was unnecessary because the petition was without merit and thus the defendant could not show prejudice. Without addressing the merit of the petition, the court observed that there was a “palpable” prejudice because counsel‘s failure to cure the waiver problem “precluded consideration of [the defendant‘s] claims on the merits and directly contributed to the dismissal of the petition without an evidentiary hearing.” Turner, 187 Ill. 2d at 415. However, we do not take the court to have established a lower “direct contribution” standard of prejudice that a defendant must satisfy to obtain reversal.3 Indeed, the court went on to reject the State‘s argument “[o]n a more fundamental level,” holding that a dismissal is improper when “post-conviction counsel‘s performance was so deficient that it amounts to virtually no representation at all,” i.e., when counsel had not “adequately performed his duties under Rule 651(c).” Turner, 187 Ill. 2d at 415-16. Thus, the court suggested its adherence to the general proposition that, when counsel fails to comply with Rule 651(c), no showing of prejudice is necessary. See Lander, 215 Ill. 2d at 585.
In Johnson, the court held that counsel failed to fulfill his duties under Rule 651(c) in that he failed to contact witnesses whom the defendant named in his petition. Johnson, 154 Ill. 2d at 243-45. Counsel‘s failure precluded the court from affirming a dismissal based on a lack of affidavits from these witnesses, although, naturally enough, nothing in the record showed that the witnesses’ testimony would have been enough to make the petition viable. Johnson, 154 Ill. 2d at 243-45.
Turner and Johnson are the supreme court‘s most recent word on this issue, and we therefore follow them. The holdings in Turner and Johnson clearly exclude requiring a defendant to make a positive, Strickland-type showing that his counsel‘s failure to comply with Rule 651(c) caused prejudice. A question remains about whether post-conviction counsel‘s failure to provide the assistance required by Rule 651(c) is subject to a harmless-error analysis. The holdings in Turner and Johnson do not explicitly resolve that issue, and we do not resolve
Following the analyses in Turner and Johnson, we conclude that postconviction counsel here violated Rule 651(c). Postconviction counsel argued (1) that defendant‘s petition was timely because our order vacating two of defendant‘s convictions changed defendant‘s sentence and thus restarted the time for defendant to file a petition, (2) that defendant could not raise his sentencing argument until we decided his direct appeal as we did, and (3) that the time for filing a petition is subject to flexibility in the interests of justice. All these arguments are legally without merit.
The argument that a change in a sentence restarts the time to file a petition was rejected by the First District in People v. Langston, 342 Ill. App. 3d 1100, 1103-04 (2001). We adopted the reasoning of Langston in People v. Wright, 337 Ill. App. 3d 759, 762-63 (2003). Both cases predated postconviction counsel‘s attempt to argue that our vacation of two of defendant‘s convictions made his petition timely.
The argument that defendant could not have raised certain sentencing issues until after we decided his direct appeal fails for several reasons. The simplest of these is that, accepting for the sake of argument that our resolution of the appeal did create new issues, defendant does not explain why he needed as long as he did after we issued our resolution to file his petition. Defendant filed his petition
Postconviction counsel‘s argument that the time for filing the petition is subject to flexibility in the interests of justice suggests that counsel was unfamiliar with the framework of the Act as it relates to the time for filing. Section 122-1(c) of the Act, as then written,4 stated that “[n]o proceedings *** shall be commenced [under the Act and outside the specified time frame] unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.”
We conclude that postconviction counsel‘s representation of defendant was less than the reasonable representation he was due under the Act. We do so with some trepidation. We do not wish to be understood to hold that postconviction counsel provides less-than-reasonable representation simply because he or she makes a bad argument. It is the nature of a defense lawyer‘s job that he or she must make the best of what may turn out to be hopeless facts. A weak or far-fetched argument may nevertheless be the least bad of all those possible; we would not suggest that an attorney has committed a dereliction for making such an argument.5 Furthermore, statements made at oral argument, as those of postconviction counsel were here, are not necessarily as thought out as written arguments are.
That said, some arguments can unambiguously betray a lack of familiarity with the applicable law. That happened here when counsel asserted the flexibility of the time for filing a petition. The problem is
III. CONCLUSION
Because defendant did not receive reasonable assistance of counsel in defending against the State‘s motion to dismiss, the dismissal should not stand. Therefore, for the reasons given, we vacate the trial court‘s dismissal of defendant‘s petition and remand the matter for defendant to receive appropriate assistance with his defense against the motion.
Vacated and remanded.
GROMETER, P.J., and CALLUM, J., concur.