Opinion
NO. 4-13-0517
02-24-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE L. MAYS, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Sangamon County
No. 02CF306
Honorable Patrick W. Kelley, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in granting the motion to withdraw as counsel filed by counsel appointed to represent the pro se petitioner under the Post-Conviction Hearing Act.
¶ 2 In May 2003, defendant, Joe L. Mays, pleaded guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 2002)), armed robbery (720 ILCS 5/18-2 (West 2002)), and aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 2002)). Defendant, in September 2006, filed a pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2006)), asserting, in part, his confession was illegally coerced and he was denied the effective assistance of trial counsel. The trial court, in September 2006, appointed counsel to represent defendant in postconviction proceedings.
¶ 3 In February 2013, defendant's counsel filed a motion to withdraw, which was
granted by the trial court. The court dismissed defendant's postconviction petition. Defendant appeals, arguing the dismissal was erroneous because (1) under People v. Greer, 212 Ill. 2d 192, 817 N.E.2d 511 (2004), counsel's motion to withdraw was insufficient as it failed to address all of defendant's pro se claims; and (2) the postconviction petition set forth meritorious claims. We affirm.
¶ 4 I. BACKGROUND
¶ 5 In April 2002, the State charged defendant with multiple counts of first degree murder, aggravated kidnapping, and armed robbery after the March 2002 death of Dan Defraities. In May 2002, defense counsel filed a motion for an examination of defendant to ascertain whether he was fit for trial and to determine defendant's criminal responsibility at the time of the offense. In the motion, defense counsel indicated he learned defendant had a history of psychiatric treatment and medication. Defense counsel had "serious doubts" as to whether defendant understood the nature and purpose of the proceedings and whether defendant could assist in his defense.
¶ 6 In June 2002, a fitness hearing commenced. At the hearing, the court was informed Dr. Terry Killian, a psychiatrist, concluded defendant was unfit for trial. In the same report, Dr. Killian opined treatment in a secure facility should permit defendant to obtain fitness within two months. Dr. Killian further opined the insanity defense would not apply. In September 2002, the Department of Mental Health found defendant fit to stand trial.
¶ 7 In October 2002, defense counsel requested another examination by Dr. Killian. The trial court granted the request. In a December 2002 report, Dr. Killian stated defendant received mental-health treatment at Chester Mental Health Center. Dr. Killian concluded
defendant was fit to stand trial, as he had "an adequate understanding of the legal issues." Dr. Killian reiterated his conclusion "a defense of not guilty by reason of insanity would not be supported." Consistent with Dr. Killian's conclusions, the parties stipulated defendant had been found fit to stand trial.
¶ 8 In February 2003, defense counsel filed a motion to sever defendant's case from that of his codefendant, Amanda McGuire. Defense counsel asserted McGuire made "hearsay admissions" implicating defendant and defendant made statements implicating McGuire.
¶ 9 In May 2003, defendant pleaded guilty to first degree murder, armed robbery, and aggravated kidnapping. The State agreed to seek a prison sentence of 45 years. At the hearing, the trial court admonished defendant and questioned him to ascertain whether his plea was voluntary and knowing.
¶ 10 The State presented the factual basis for the plea. The police investigated a report that the Clark gas station on North Grand Avenue in Springfield was unattended. When the police arrived at the gas station, there was evidence of a robbery. As the police investigated the robbery, they were led to three individuals: defendant, Amanda McGuire, and Cassandra Rossi. Defendant initially denied involvement, but he later confessed. Defendant, who was given his constitutional rights, agreed to waive those rights and provide a written statement. Defendant stated he obtained a metal BB gun and, on March 26, 2002, went to the Clark gas station with McGuire and robbed Defraities, the clerk, while threatening him with the BB gun. After the robbery, defendant and McGuire took Defraities in his truck into the rural Rochester area. Defendant struck Defraities multiple times in the head with the BB gun. Expert testimony would establish Defraities died from severe trauma to the head. The individual who loaned defendant
the BB gun would have testified, and the BB gun would have been entered into evidence.
¶ 11 Before accepting defendant's plea, the trial court admonished defendant. Defendant denied anyone threatened him or bullied him to encourage him to plead guilty. Defendant asserted he was happy with his representation. The court found defendant's guilty pleas were voluntary.
¶ 12 In August 2003, defendant was sentenced to concurrent terms of imprisonment of 45 years for first degree murder, 20 years for armed robbery, and 20 years for aggravated kidnapping.
¶ 13 Defendant pursued a direct appeal of his conviction and sentence in January 2005. He later filed a motion to dismiss his appeal, which this court allowed.
¶ 14 In September 2006, defendant filed his pro se postconviction petition. In his petition, defendant alleged he was denied due process because of police misconduct. Specifically, defendant alleged detectives conducted an unlawful search of his residence, failed to read him his Miranda rights, and forced him to sign a statement by threatening bodily harm. Defendant further alleged his trial counsel provided ineffective assistance. Defendant asserted defense counsel (1) failed to request a neuropsychological test battery to aid in the defense; (2) failed to request a change of venue; and (3) coerced him into pleading guilty through misrepresenting facts and law, stating no defense could be raised and abandoning any defense.
¶ 15 That month, the trial court appointed Daniel Fultz to represent defendant. The State filed a motion to dismiss the postconviction petition.
¶ 16 In February 2013, Fultz moved to withdraw as postconviction counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). In his six-page motion, counsel maintained he
reviewed the applicable law and found defendant's arguments lacked merit. Counsel concluded, because defendant entered a voluntary plea, defendant could not argue his fourth-amendment right against unlawful search and seizure and right of due process were denied. Counsel further concluded defendant could not argue his confession to the police was coerced. Regarding defendant's ineffective-assistance-of-counsel claims, counsel concluded defendant could not show trial counsel's performance was deficient or the existence of a reasonable probability he would not have entered a guilty plea absent trial counsel's error.
¶ 17 Postconviction counsel attached to his motion to withdraw an "Affidavit in Compliance with Supreme Court Rule 651(c)." In the affidavit, counsel averred he consulted with defendant by mail and in person to ascertain his contentions. Counsel opined defendant appeared "articulate in his position" and "cognizant of the various matters relevant to his contentions." Counsel stated he examined the record of proceedings from the trial and appellate courts and considered amendments to the pro se petition.
¶ 18 In May 2013, the trial court held a hearing on the motion to withdraw. When arguing in support of his motion, counsel asserted "[a]fter a review of everything," he could not "find that there is anything that [defendant] has alleged in his pro se petition that would violate the standards enunciated by the Supreme Court in Strickland v. Washington, there was nothing that counsel did in entering into the plea negotiations, anything done in the pretrial performance that would violate [defendant's] Sixth Amendment right to counsel." The trial court asked defendant if he had anything to add. Defendant replied, "No, sir." The trial court granted the motion and dismissed defendant's postconviction petition.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Defendant first argues postconviction counsel's motion to withdraw was inadequate, as counsel failed to address each claim in the pro se petition. This, according to defendant, violates the mandate in Greer, 212 Ill. 2d at 212, 817 N.E.2d at 523, that postconviction counsel, when seeking to withdraw, must "make some effort to explain why defendant's claims are frivolous or patently without merit." (Emphasis in original.) In support, defendant further relies on People v. Komes, 2011 IL App (2d) 100014, ¶ 29, 954 N.E.2d 300, in which the Second District concluded Greer set a standard the defense counsel failed to meet in the motion to withdraw as counsel.
¶ 22 The State counters this court, in People v. Kuehner, 2014 IL App (4th) 120901, ¶ 73, 8 N.E.3d 1148, appeal allowed, 20 N.E.3d 1259 (Ill. Sep. 24, 2014) (Table, No. 117695), rejected the holding in Komes and the argument "Greer requires a 'sufficient' motion to withdraw." The State urges this court to follow the Kuehner precedent and decline to address the argument counsel's withdrawal motion was inadequate.
¶ 23 The Act provides a process by which an inmate may obtain postconviction review of claims his conviction led to a substantial denial of his constitutional rights. After a petition is filed under the Act, the trial court must, within 90 days of filing, examine the petition and determine if the claims within it are frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2006). A petition not dismissed as frivolous and patently without merit within those 90 days advances to the next stage of proceedings. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). At this stage, the trial court appoints counsel to represent indigent petitioners during further postconviction proceedings. 725 ILCS 5/122-4 (West 2006).
¶ 24 Once counsel is appointed, the petitioner is entitled to reasonable representation by counsel. People v. Guest, 166 Ill. 2d 381, 412, 655 N.E.2d 873, 887 (1995); People v. Patterson, 2012 IL App (4th) 090656, ¶ 23, 971 N.E.2d 1204. To ensure petitioners are provided reasonable representation, Rule 651(c) imposes certain duties on appointed counsel. People v. Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977, 979 (2007). Appointed counsel must (1) consult with the petitioner to ascertain the petitioner's contentions of deprivation of constitutional rights, (2) examine the record of the trial proceedings, and (3) make any amendments to the pro se petition "necessary for an adequate presentation of petitioner's contentions." Ill. S. Ct. R. 651(c) (eff. Nov. 30, 1984). Counsel may also file a certificate to show compliance with Rule 651(c). See People v. Lander, 215 Ill. 2d 577, 584, 831 N.E.2d 596, 600 (2005).
¶ 25 Appointed counsel is not, however, required by Rule 651(c) "to advance frivolous or spurious claims on defendant's behalf." Greer, 212 Ill. 2d at 205, 817 N.E.2d at 519. To amend a petition in a manner that only furthers a frivolous or patently nonmeritorious claim would appear to violate Rule 137 (Ill. S. Ct. Rule 137 (eff. Feb. 1, 1994)). Greer, 212 Ill. 2d at 205, 817 N.E.2d at 519-20. Counsel has an ethical obligation to seek withdrawal as counsel if counsel believes the pro se claims are frivolous or without merit. People v. Shortridge, 2012 IL App (4th) 100663, ¶ 13, 964 N.E.2d 679.
¶ 26 In instances when counsel finds no frivolous or patently without merit claim may be made, the Act allows counsel to withdraw. See Greer, 212 Ill. 2d at 211, 817 N.E.2d at 523. A trial court may grant a motion to withdraw if the record reveals counsel fulfilled his duties under Rule 651(c) and the record shows the petitioner's claims are frivolous and patently without merit. Kuehner, 2104 IL App (4th) 120901, ¶ 63, 8 N.E.3d 1148.
¶ 27 Defendant contends Greer adds the requirement the motion to withdraw must sufficiently address each claim in the defendant's pro se petition before a motion to withdraw may be granted. The State, citing Kuehner as precedent, disagrees. We agree with the State.
¶ 28 In Kuehner, this court considered and rejected the same argument defendant makes here. The Kuenher defendant argued the motion to withdraw was improper because Greer requires appointed counsel to address each of the points of error raised in the pro se petition. See id. ¶ 56, 8 N.E.3d 1148. This court examined Greer and concluded Greer does not mandate "sufficient" motions to withdraw. Id. ¶ 73, 8 N.E.3d 1148. Instead, we found Greer establishes the record, and not counsel's motion, determines whether a trial court should permit counsel to withdraw. Id. ¶ 71, 8 N.E.3d 1148. We need not restate the reasons for this holding, as they are fully stated in Kuehner. We note, however, the Kuehner court explicitly rejected the holding in Komes, the other case upon which defendant relies. Id. ¶ 65, 8 N.E.3d 1148.
¶ 29 As this court did in Kuehner, we will not review the motion to withdraw to ascertain whether it was "sufficient." Instead, we turn to defendant's next argument the record shows his postconviction claims are not frivolous and patently without merit.
¶ 30 In asserting the argument his claims have merit, defendant fails to articulate directly the claims he believes have merit. In his reply brief, defendant cites pages 14 and 16 of his opening brief as showing claims that are meritorious. However, on page 14, the only argument a claim has merit was made in the context of attempting to show the motion to withdraw was insufficient:
"Mr. Fultz concluded that [defendant] had no meritorious issues but counsel failed to explain why any of [defendant's] claims were
not meritorious. [Citation.] For example, post-conviction counsel failed to explain why [defendant's] right to due process was not violated where [defendant] alleged that his guilty plea was not voluntary where the infamous Detective Graham threatened him with bodily harm unless he confessed."
Defendant then cites case law where guilty pleas were not voluntary when induced by threats, but not cases where voluntary guilty pleas followed allegedly involuntary confessions. See People v. Washington, 38 Ill. 2d 446, 450, 232 N.E.2d 738, 740 (1967).
¶ 31 Nevertheless, defendant's argument is insufficient to show defendant has a meritorious claim he was denied due process due to police misconduct. The record shows defendant's plea was voluntary. When questioned at the plea hearing, defendant stated he was happy with counsel's representation and his plea was not based on threats or promises. Defendant heard the factual basis and admitted the offense. A voluntary guilty plea forfeits nonjurisdictional errors, including a coerced confession. People v. Del Vecchio, 105 Ill. 2d 414, 432-33, 475 N.E.2d 840, 849 (1985); People v. Phelps, 51 Ill. 2d 35, 38, 280 N.E.2d 203, 204 (1972) ("[T]hat petitioner may have been motivated by his coerced confession does not invalidate his otherwise knowing and intelligent plea of guilty ***.").
¶ 32 The second alleged meritorious claim was also framed as an inadequacy with the motion to withdraw itself, not as a meritorious claim: "[P]ost-conviction counsel utterly failed to explain why [defendant's] claim of ineffective assistance of guilty plea counsel was without merit." Defendant contends his counsel at the plea hearing "completely abandoned any defense" for him and he was thus denied the effective assistance of counsel.
¶ 33 Treating this as an argument defendant asserted a meritorious claim his counsel abandoned any defense, the record belies this claim. Defense counsel pursued defenses based on defendant's mental health. Defendant was charged with the offense in April 2002. In May 2002, defense counsel moved for an examination of defendant to ascertain fitness and to determine whether defendant could be held criminally responsible at the time of the offense. Defense counsel, at the June 2002 hearing, argued on defendant's behalf and secured treatment for him. In October 2002, defense counsel filed a second motion for a mental-health examination of defendant. Defense counsel also acknowledged defendant's codefendant McGuire made statements implicating defendant and filed a motion to sever trial proceedings.
¶ 34 Defendant nowhere identifies any other defense that should have been pursued. We presume, because postconviction counsel provided a Rule 651(c) certificate showing he met with defendant to ascertain his points of error, defendant has no arguments to add. See generally People v. Profit, 2012 IL App (1st) 101307, ¶ 19, 974 N.E.2d 813 ("The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that post-conviction counsel provided reasonable assistance.").
¶ 35 Defendant thus cannot establish the first prong of a claim his counsel's performance was ineffective. Given the record and the unrebutted presumption under Rule 651(c), defendant cannot prove counsel's performance fell below an objective standard of reasonableness. See People v. Young, 341 Ill. App. 3d 379, 383, 792 N.E.2d 468, 472 (2003) (stating the test for evaluating claims of ineffective assistance of counsel).
¶ 36 III. CONCLUSION
¶ 37 We affirm the trial court's judgment.
¶ 38 Affirmed.