*1 Illinois Official Reports
Appellate Court
People v. Smith
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption KARL SMITH, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-18-1220 Filed December 31, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-2655; the Hon. Thomas Joseph Hennelly, Judge, presiding. Review Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Peter Sgro, of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Tyler J. Cox, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION ¶ 1 Defendant Karl Smith appeals the second-stage dismissal of his postconviction petition.
He argues that he is entitled to a remand for further second-stage proceedings because the attorney who represented him at the hearing on the State’s motion to dismiss his petition did not comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The State counters that the attorney was not required to independently satisfy the duties prescribed by Rule 651(c) because her predecessor counsel had already filed a valid Rule 651(c) certificate. For the following reasons, we agree with the State and affirm the circuit court’s judgment. [1] I. BACKGROUND In January 2008, defendant and two other men forced their way into an apartment that
Gabriel Curiel shared with his brother, Jonathon Collazo. Gabriel’s three children, including six-year-old David, were also present at the time. The intruders stole money and cannabis from a safe in the apartment. During the incident, David was shot in the head, and Gabriel was beaten, stabbed in the chest, and shot in the shoulder. Both were seriously injured but survived. At a jury trial in 2011, Gabriel and Collazo identified defendant as one of the offenders. The State also called David, then nine years old, to testify. Before trial, defendant requested a hearing on David’s competency, but the trial court stated that it would address that issue at trial. After taking the stand, David answered sеveral preliminary questions, but when asked about the day of the attack, he responded “I need a hug” and “I want my mom.” The jury was then excused, and defense counsel moved for a mistrial, arguing that David’s emotional reaction in front of the jury had prejudiced defendant. The trial court denied that request but stated that it would conduct a competency hearing if the State recalled David tо the stand. The State did not recall David, and the trial court later instructed the jury to disregard his testimony and what had occurred while he was on the stand. The jury found defendant guilty of two counts of attempted first degree murder, two counts
of aggravated battery with a firearm, and one count each of home invasion, armed robbery, and aggravated battery of a child. The trial court sentencеd defendant to consecutive prison terms of 30 years and 25 years on the attempted first degree murder convictions and consecutive terms of 22 years for the home invasion and armed robbery convictions, for an aggregate sentence of 99 years. The court imposed concurrent sentences of 30 years and 15 years on the aggravated battery with a firearm conviсtions and no sentence on the aggravated battery of a child conviction, which merged with one of the aggravated battery with a firearm convictions. On direct appeal, defendant argued that his aggravated battery convictions should be
vacated under the one-act, one-crime rule because they were based on the same physical acts as his attempted first degree murder convictions, namely, the shootings of Gabriel and David. We vacated one of defendant’s aggravated battery with a firearm convictions and his aggravated battery of a child conviction because those convictions were based on defendant’s act of shooting David, which was the same act underlying his conviction for attempted first
degree murder of David.
People v. Smith
,
not proven guilty beyond a reasonable doubt; (2) the State violated Brady v. Maryland , 373 U.S. 83 (1963), by failing to disclose David’s pretrial statement identifying him; (3) the trial court erred in rejecting his request for a pretrial hearing on David’s competency to testify, which caused him prejudice when David had an emotional breakdown in front of the jury; (4) the trial court erred in imposing consecutive sentences for convictions arising from the same course of conduct and not informing him befоre trial that he could receive consecutive sentences; and (5) his appellate counsel was ineffective for failing to raise the preceding claims on direct appeal. When the trial court failed to rule on the petition in 90 days, it automatically advanced to
second-stage proceedings, and the court appointed the Office of the Publiс Defender to represent defendant. On January 23, 2015, Assistant Public Defender (APD) Denise Avant appeared on defendant’s behalf. On April 22, 2016, after several continuances, APD Avant filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) attesting that she had consulted with defendant by phone to ascertain his contentions of deprivations of constitutional rights, had reviewed the transcript of defendant’s trial and the briefs from his direct appeal, had spoken with defendant’s trial counsel, had researched the issues in defendant’s pro se petition, and had determined that no supplemental petition was necessary to adequately present defendant’s contentions. On April 6, 2017, the State filed a motion to dismiss defendant’s petition, arguing that it
was untimely and that defendant’s claims were meritless. On August 4, 2017, APD Avant filed a response to the State’s motion, conceding that defendant filed his petition 38 days late but arguing that the delay should be excused because defendant was not culpably negligent. In support, APD Avant submitted an affidavit from defendant explaining that he had only a tenth grade education and was unfamiliar with the legal rules for calculating the deadline for filing a postconviction petition. Sometime after filing the response to the State’s motion to dismiss, APD Avant left the
public defender’s office, and the case was reassigned to APD Kristine Underwood. On March 26, 2018, APD Underwood represented defendant at the hearing on the State’s motion to dismiss. APD Underwood argued that the untimeliness of defendant’s petition should be excused because his mistake in calculating the deadlinе for filing the petition did not constitute culpable negligence. On the merits, APD Underwood focused on defendant’s claim that the trial court erred in denying his request for a pretrial hearing on David’s competency to testify. APD Underwood argued that, in light of David’s age and the head injuries he suffered in the shooting, a pretrial hearing on his competency was warranted. And though David ultimately did not testify at trial, APD Underwood argued that defendant was prejudiced by the lack of a pretrial competency hearing when David became emotional in front of the jury while attempting to testify. In an oral ruling, the trial court granted the State’s motion to dismiss. The court found that
defendant’s petition was untimely, but it did not address the argument that the lateness should be excused due to defendant’s lack of culpable negligence. The trial court also found that *4 defendant’s claims were meritless. As for the claim that the court erred in denying defendant’s request for a pretrial hearing on David’s competency, the court noted that David ultimately did not testify and that the jury was instructed to disregard what occurred when he was briefly called to the stand. After the court announced its ruling, defendant filed a timely notiсe of appeal. II. ANALYSIS Defendant’s sole argument on appeal is that he is entitled to a remand for further second-
stage proceedings because APD Underwood did not file a Rule 651(c) certificate and the record
does not otherwise establish that she independently complied with the duties specified by the
rule. Defendant does not dispute that APD Avant complied with the rеquirements of Rule
651(c). But he argues that, regardless of APD Avant’s compliance, APD Underwood, as the
attorney who represented him at the hearing on the State’s motion to dismiss, was
independently required to comply with Rule 651(c). We review an attorney’s compliance with
Rule 651(c)
de novo
.
People v. Profit
,
as frivolous or patently without merit within 90 days after it is filed, the petition advances to
second-stage proceedings, including the appointment of counsel. 725 ILCS 5/122-2.1(b), 122-
4 (West 2018);
People v. Bailey
,
guaranteed under the Post-Conviction Hearing Act, Rule 651(c) requires postconviction
counsel to perform three specific tasks.
Suarez
,
“consult[ ] with [the] petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, *** examine[ ] the record of the proceedings at the trial, and [make] any amendments to the petitions filed that are necessary for an adequate presentation of [the] pеtitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
See
People v. Kirk
,
he makes no attempt to overcome the presumption that APD Avant provided him the
reasonable assistance guaranteed by the Post-Conviction Hearing Act. Instead, defendant
contends that APD Underwood, who replaced APD Avant as his counsel prior to the hearing
on the State’s motion to dismiss, was herself required to comply with Rule 651(c)’s
requirements. But we find no support for this contention in either the Post-Conviction Hearing
Act or Rule 651(c).
This court’s decision in
People v. Marshall
,
There, a defendant who was denied postconviction relief after a third-stage evidentiary hearing
argued that the attorneys who represented her at the evidentiary hearing were required to
comply with the requirements of Rule 651(c) even though the attorney who previously
represented her at the second-stage proceedings on her petition had already certified
compliance with the rule’s requirements.
Id.
at 672, 679. In rejecting this contention, we held
that “Rule 651(c)’s requirements must be met only oncе and not, as defendant suggests, by
attorneys representing a defendant at each stage of postconviction proceedings.”
Id.
at 682.
We explained that counsel at the various stages of the postconviction process have distinct
roles. In particular, counsel at second-stage proceedings must satisfy Rule 651(c)’s
requirements of consulting with the petitioner, reviewing the record, and making any necessary
amendments to the petitioner’s
pro se
petition “so that the State can fully review the
defendant’s claims and determine if it will move to dismiss them.”
Id.
at 683. “An attorney at
the evidentiary hearing stage,” by contrast, “must argue the merits of the postconviction
petitioner’s claims as presented in the petition following review by counsel at the second
stage.”
Id.
In light of these distinctive roles, we concluded that “Rule 651(c) does not require
third-stage counsel to duplicate the efforts of second-stage counsel.” Although
Marshall
did not address the precise question presented here, we think its
reasoning applies with full force. Defendant does not dispute that APD Avant consulted with
him to ascertain his contentions of constitutional error, reviewed the recоrd of his trial
proceedings, and reasonably determined that no amendments to his
pro se
petition were
necessary to adequately present his claims. By certifying her compliance with these duties,
APD Avant created a rebuttable presumption, which defendant does not attempt to overcome,
that APD Avant provided the level of reasonable assistance mandated by the Post-Conviction
Hearing Act. See ,
was orally argue defendant’s position at the hearing on the State’s motion to dismiss. Much
like the attorneys at the third-stage evidentiary hearing in
Marshall
, APD Underwood’s role
was different than that of the attorney she replaced. Her task was to urge that the untimely
filing of defendant’s petition be excused (as APD Avant had previously done in writing)
and “argue the merits of [defendant’s] claims as presented in the petition following review by
[APD Avant].” See
Marshall
,
Rule 604(d), we reject defendant’s call to extend that interpretation to Rule 651(c). Although
superficially similar, Rule 604(d) and Rule 651(c) serve fundamentally distinct purposes. Rule
604(d) protects a defendant’s constitutional right to effective assistance of counsel at a critical
stage of the proceedings on his guilty plea.
People v. Young
,
postconviction petitioners receive the reasonable assistance of counsel guaranteed by the Post-
Conviction Hearing Act.
Suarez
,
Notes
[1] In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.