Opinion
1-22-0689
06-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL RANDALL, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 11 CR 15694 Honorable Michele McDowell Pitman, Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.
ORDER
LAMPKIN, PRESIDING JUSTICE
¶ 1 Held: The judgment of the trial court dismissing defendant's second-stage petition for postconviction relief is reversed.
¶ 2 The appeal now before us arises out of the trial court's dismissal of defendant Terrell Randall's second-stage postconviction petition. The sole issue before us is whether defendant received the reasonable assistance of counsel that is guaranteed to him at the second stage of proceedings under the Postconviction Hearing Act (the Act), 725 ILCS 5/122-1 et seq.
¶ 3 For the reasons that follow, we reverse the judgment of the circuit court.
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.
¶ 4 I. BACKGROUND
¶ 5 A. Pre-Trial and Plea Proceedings
¶ 6 On September 27, 2011, the State charged defendant in a 31-count indictment that alleged that defendant committed attempt first degree murder, aggravated battery, aggravated discharge of a firearm, unlawful possession of a weapon by a felon, aggravated unlawful use of a weapon, and aggravated domestic battery, all stemming from an incident that took place in the early morning hours on August 26, 2011, where defendant opened fire on his ex-girlfriend, Amy Cartage and her boyfriend, Kevin Newsum. Cartage was struck by one of the bullets.
¶ 7 Pretrial, the State filed a motion in limine seeking to admit evidence that, at 1:25 a.m. on August 26, 2011, defendant also shot and killed his current girlfriend. He was found guilty and sentenced to 90 years in the Illinois Department of Corrections (IDOC) for that murder. The trial court granted the State's request to admit evidence of that murder at trial in the instant case to show motive, intent, and absence of mistake.
¶ 8 The instant case proceeded to trial on November 2, 2015. Partway through jury selection, defense counsel informed the trial court that defendant wanted to plead guilty. The State recommended a sentence of 25 years, at 85%, for aggravated battery with a firearm. The trial court admonished defendant about the nature of the charge and the possible penalties, including that it would run consecutive to his 90-year sentence for murder.
¶ 9 The State's factual basis for the plea contained the following information. At 4:25 a.m., Cartage and Newsum were outside in Markham, Illinois. Defendant left a voicemail for Cartage saying that he was on his way to "take care" of her, and that either he or Newsum would die. When defendant arrived, he discharged a firearm which struck Cartage and fled. Cartage required surgery and physical rehabilitation for her injuries. Defendant's identity and a description of his vehicle were given to Markham police upon their arrival at the scene. Crime scene technicians recovered one fired bullet and one shell casing from the scene.
¶ 10 Later the same day, defendant's car was located at a Howard Johnson motel in Lansing. Defendant was observed outside the motel and was taken into custody. Police executed a search warrant for defendant's car, in which they found a nine millimeter handgun loaded with four live rounds. Forensic analysis confirmed that the fired bullet and spent shell casing from the scene of the crime originated from the gun found in defendant's car.
¶ 11 Trial counsel stipulated that those facts would be the testimony at trial, and the trial court accepted defendant's plea before sentencing him to 25 years. The trial court ensured that defendant understood that the sentence would be consecutive to his 90-year sentence for murder.
¶ 12 On November 30, 2015, defense counsel filed a motion for leave to withdraw defendant's guilty plea. New counsel was subsequently appointed due to defendant's claim that he received ineffective assistance of trial counsel. At a hearing on the motion, defendant testified that he believed he would receive a concurrent 25-year sentence at 50% and introduced a letter from trial counsel encouraging him to think about accepting an offer of 25 years, concurrent, at 50%. He also testified that trial counsel told him multiple times that was the offer. He also testified that on the day of the plea he was having difficulty understanding due to the medications he was taking. The trial court denied the motion, and we affirmed.
¶ 13 B. Defendant's Postconviction Petition
¶ 14 On November 16, 2020, defendant filed a petition for postconviction relief. That petition alleged that he was deprived of due process of law when he was subject to a warrantless arrest pursuant to an investigative alert, and that evidence was illegally obtained pursuant to that warrantless arrest. The petition invoked People v. Bass, which held that warrantless arrests based on investigative alerts are unconstitutional. People v. Bass, 2019 IL App (1st) 160640, ¶ 1. In the intervening time since defendant's petition was filed, the supreme court vacated that portion of the holding in Bass. People v. Bass, 2021 IL 125434, ¶ 31.
¶ 15 Defendant claimed that the Oak Forest Police Department issued an investigative alert for defendant stemming from a shooting that occurred in Markham, Illinois, on August 26, 2011. The investigative alert was issued for defendant and a gold/tan 1999 Chevy Malibu registered to defendant. At 12:45 p.m. on August 26, 2011, law enforcement located defendant's vehicle at a Howard Johnson motel, and arrested defendant in the hotel's lobby without a warrant. He further alleged that police then illegally searched his vehicle and recovered a black nine-millimeter semiautomatic handgun.
¶ 16 Defendant's petition argued that the handgun, footage from the motel, and incriminating statements defendant made post-arrest should have been suppressed. In the affidavit attached to his petition, defendant alleged that his attorney advised him it would be impossible to prevail at trial given the evidence against him, and that advice was the only reason he pleaded guilty.
¶ 17 C. Postconviction Proceedings
¶ 18 On April 2, 2021, the trial court reviewed defendant's petition and docketed it for second-stage proceedings. Postconviction counsel was subsequently appointed to represent defendant. On July 21, 2021, postconviction counsel filed the certificate required by Supreme Court Rule 651(c), asserting that he had consulted with defendant, examined the record, and that he made no amendments to defendant's petition because none were necessary for an adequate presentation of defendant's claims.
¶ 19 The State filed a motion to dismiss on August 24, 2011, which claimed that defendant's claims were meritless and that his guilty plea waived all non-jurisdictional errors. Postconviction counsel did not file a response to the State's motion.
¶ 20 At a hearing on the State's motion on April 22, 2022, counsel argued that trial counsel was ineffective for failing to challenge the investigative alert and failing to seek to suppress the evidence seized as a result. The trial court immediately seized on the fact that there was no ineffective assistance claim pending in the defendant's petition. Postconviction counsel responded by saying, "Well, the Bass claim is basically that, is that [defendant's] constitutional rights were violated because he was arrested pursuant to an investigatory alert, and that should have been challenged." Postconviction counsel did not request leave to amend defendant's petition.
¶ 21 The trial court granted the State's motion to dismiss, and this appeal followed.
¶ 22 II. ANALYSIS
¶ 23 The Act provides a mechanism by which a defendant may raise a collateral attack against his or her conviction based on a claim of actual innocence or where there was a substantial denial of his or her rights under the Constitution of the United States, the State of Illinois, or both. 725 ILCS 5/122-1 et seq. The purpose of postconviction proceedings is to allow inquiry into constitutional issues involved in the original conviction and sentence that have not been, and could not have been, adjudicated previously on appeal. People v. Buffer, 2019 IL 122327, ¶ 12.
¶ 24 The Act sets out a three-stage process for the adjudication of postconviction petitions. Id. at ¶ 45. At the first stage the trial court is only required to determine whether a petition is "frivolous or patently without merit." 725 ILCS 5/122-2.1(a)(2); Buffer, 2019 IL 122327 at ¶ 45. A petition is frivolous or patently without merit when it has no arguable basis in law or in fact. People v. Hodges, 234 Ill.2d 1, 16 (2009). A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation. Id. An example of an indisputably meritless legal theory is one which is completely contradicted by the record. Id. Fanciful factual allegations include those which are fantastic or delusional. Id. at 17.
¶ 25 If the trial court does not dismiss the petition as frivolous or patently without merit, the petition advances to the second stage. People v. Edwards, 197 Ill.2d 239, 245 (2001). Counsel is appointed to represent the defendant, if necessary, and the State is permitted to file responsive pleadings. Edwards, 197 Ill.2d at 245; 725 ILCS 5/122-4; 725 ILCS 5/122-5. At the second stage, the trial court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. Edwards, 197 Ill.2d at 246. At the second stage, all well-pleaded facts not positively rebutted by the trial record are construed as true. People v. Pendleton, 223 Ill.2d 458, 473 (2006).
¶ 26 In postconviction cases, there is no constitutional right to counsel. People v. Addison, 2023 IL 127119, ¶ 19. Instead, the right to counsel is provided by statute, and defendants are only entitled to a "reasonable level of assistance," which is less than that afforded by the federal and state constitutions. Id. This distinction is a rational one because trial counsel plays a different role than postconviction counsel. Id. At trial, counsel acts as a shield to protect a defendant from being stripped of the presumption of innocence. Id. But defendants in a postconviction posture have already been stripped of their presumption of innocence and have generally failed to obtain relief on direct appeal. Id. Thus, postconviction counsel is meant not to protect a defendant from the prosecutorial forces of the State, but to shape defendants' claims into the proper legal form and present those claims to the court. Id.
¶ 27 The Act contemplates that the attorney appointed to represent an indigent defendant would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at trial, and then amend the pro se petition so that it would adequately present the defendant's constitutional claims. People v. Owens, 139 Ill.2d 351, 358-59 (1990). The Act cannot serve its purpose properly unless the attorney appointed to represent an indigent defendant ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court. Id. at 359.
¶ 28 To ensure that defendants receive reasonable assistance of counsel, Rule 651(c) provides: "The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her 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." Ill. S.Ct. R.651(c) (eff. July 1, 2017).
¶ 29 When postconviction counsel does not complete the few duties imposed by Rule 651(c), the limited right to counsel conferred by the Act becomes illusory. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 44. Compliance with Rule 651(c) is mandatory, but once postconviction counsel files a Rule 651(c) certificate, a rebuttable presumption of reasonable assistance arises. Addison, 2023 IL 127119, ¶ 21. The defendant bears the burden of overcoming that presumption by showing that postconviction counsel did not substantially comply with the strictures of the rule. Id. Defendant may do so by, among other things, demonstrating that postconviction counsel did not make all the necessary amendments to the pro se petition. Id. This includes making amendments that are necessary to overcome procedural bars. Id. We review the dismissal of a second-stage petition, and issues concerning the interpretation of a supreme court rule, de novo, affording no deference to the trial court. Id. at ¶ 17.
¶ 30 A. Reasonable Assistance of Counsel
¶ 31 The issue before us is a simple one. Postconviction counsel filed a Rule 651(c) certificate claiming that he had examined the record, and that no amendments to defendant's handwritten pro se petition were necessary to adequately present defendant's claims. Then, at argument on the State's motion to dismiss, postconviction counsel invoked an argument, namely trial counsel's ineffectiveness, that was not contained within the pro se petition. Defendant claims that this failure to adequately amend the pro se petition amounts to unreasonable assistance of counsel. We agree. ¶ 32 Our supreme court recently decided People v. Addison, which is both highly instructive and controlling. In Addison, the defendant's postconviction petition alleged that appellate counsel failed to argue fourteen different issues on his direct appeal. Addison, 2023 IL 127119, ¶ 7. The defendant was appointed counsel at the second-stage, who amended the defendant's petition to include only five claims. Id. at ¶ 24. Each one of the claims raised in the amended petition could have been raised on direct appeal, and the amended petition did not assert any claims that appellate counsel was ineffective. Id. The supreme court held that postconviction counsel not only failed to make the necessary amendments to put the defendant's claims in the proper form, but she eliminated the necessary allegations of ineffective assistance of appellate counsel that defendant had included, making the petition worse. Id. at ¶¶ 24-25. Thus, postconviction counsel provided unreasonable assistance. Id. at ¶ 25.
¶ 33 People v. Turner, which preceded Addison, also provides useful context. There, the defendant's pro se petition alleged a number of claims that could have been raised on direct appeal, and thus were waived unless they were framed in the context of ineffective assistance of appellate counsel. People v. Turner, 187 Ill.2d 406, 412-13 (1999). The supreme court observed that if postconviction counsel had amended the petition to allege ineffective assistance of appellate counsel, then the defendant could have avoided waiver. Id. at 413. For that reason, along with multiple others, the supreme court held that postconviction counsel's performance was unreasonable. Id. at 414.
¶ 34 We acknowledge that this case is slightly different from Addison in that postconviction counsel here did not remove allegations from the pro se petition, thus making it worse. Instead, postconviction counsel declined to make any amendments to the pro se petition. However, the overarching question is whether the record rebuts the presumption, created by postconviction counsel's Rule 651(c) certificate, that defendant received the reasonable assistance of counsel. Addison, 2023 IL 127119, ¶ 21. And this case is functionally no different from Turner.
¶ 35 Here, postconviction counsel filed a certificate pursuant to Rule 651(c), and claimed that amendment to defendant's petition was unnecessary for the presentation of defendant's claims. In doing so, postconviction counsel was asserting, and thus creating a rebuttable presumption, that defendant received the level of assistance required by the Act. Addison, 2023 IL 127119, ¶ 21. But the record, specifically postconviction counsel's own argument, rebuts that proposition.
¶ 36 During argument on the State's motion to dismiss, postconviction counsel argued that trial counsel was ineffective for failing to attempt to suppress some of the evidence against defendant based on the use of an investigative alert. Defendant's pro se petition made no mention of ineffective assistance, which the trial court immediately noted during arguments. Postconviction counsel clearly recognized that allegations of ineffective assistance were necessary to defendant's claim to avoid potential waiver issues, yet still claimed in his Rule 651(c) certificate that no amendments to defendant's pro se petition were necessary. These things are incongruous, and postconviction counsel's argument reveals that amendments to defendant's petition were necessary to adequately present defendant's claims. The fact that additional allegations were necessary when postconviction counsel's certificate said otherwise rebuts the presumption that counsel complied with Rule 651(c) and that defendant received the reasonable assistance of counsel.
¶ 37 The State asserts that this case is distinguishable because it was not postconviction counsel's error that created a waiver issue but, rather, the fact that defendant pleaded guilty, which affirmatively waives all non-jurisdictional errors, including constitutional ones. See People v. Sophanavong, 2020 IL 124337, ¶ 33. It also asserts that defendant's reliance on People v. Bass, 2019 IL App (1st) 160640, is misplaced because our supreme court vacated the portion of that decision which held that arrests based solely on investigative alerts are unconstitutional. See Bass, 2021 IL 125434, ¶ 31. But these are arguments that go to the merits of defendant's petition. The State has made this argument that we should still consider the merits repeatedly and our supreme court has rejected it repeatedly. Addison, 2023 IL 127119, ¶ 33; Turner, 187 Ill.2d at 415-16; People v. Suarez, 224 Ill.2d 37, 51 (2007).
Since Bass, this Court has again held that a warrantless arrest based on an investigative alert violates the Illinois Constitution, and it is now pending before the supreme court. See People v. Smith, 2022 IL App (1st) 190691.
¶ 38 We are prohibited from considering the merits of defendant's petition at this point. Addison, 2023 IL 127119, ¶ 33. "[W]hen postconviction counsel does not fulfill his or her duties under Rule 651(c), remand is required 'regardless of whether the claims raised in the petition had merit.'" Addison, 2023 IL 127119, ¶ 33 (quoting Suarez, 224 Ill.2d at 47).
¶ 39 This is because "[t]he purpose underlying Rule 651(c) is not merely formal. It is to ensure that all indigents are provided proper representation when presenting claims of constitutional deprivation under the [Act]. [Citation omitted.] The fulfillment of this design would not be encouraged were we to ignore the rule's nonobservance in those cases appealed to this court." Addison, 2023 IL 127119, ¶ 33 (quoting Suarez, 224 Ill.2d at 51). "[I]t would not be appropriate to affirm the dismissal of the petition when counsel had not shaped the claims into the proper form." Addison, 2023 IL 127119, ¶ 41. By extension then, "it is inappropriate to consider the merits of the claims in the petition when counsel has not complied with Rule 651(c) by shaping the claims into the appropriate form." Addison, 2023 IL 127119, ¶ 42.
¶ 40 All defendants are entitled to have postconviction counsel comply with the limited duties of Rule 651(c) before the merits of their petitions are determined. Addison, 2023 IL 127119, ¶ 37. After all, how would it be fair to dismiss defendant's petition on the merits when the record evinces that postconviction counsel did not do the things required of him-things that he claimed to have done?
¶ 41 The overall tenor of Addison is clear: the Act must work as intended. Whether defendant can make a substantial showing of a constitutional violation once postconviction counsel has substantially complied with Rule 651(c) is an entirely separate matter. Before we answer that question, we must be assured that postconviction counsel has provided the reasonable representation necessary to enable the Act to serve as the safeguard it is meant to be. Addison, 2023 IL 127119, ¶ 33; 725 ILCS 5/122-1(a); Ill. S.Ct. R. 651(c). That has not happened here.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we reverse the judgment of the circuit court, and remand for further second-stage proceedings.
¶ 44 Reversed and remanded.