Opinion
4-21-0739
11-02-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TREMAYNE R. WILLIS, 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 Sangamon County No. 11CF599 Honorable Ryan M. Cadagin, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.
ORDER
STEIGMANN JUSTICE
¶ 1 Held: The appellate court vacated the trial court's dismissal of defendant's postconviction petition because postconviction counsel provided unreasonable assistance by failing to amend the petition to explain why the late filing did not constitute culpable negligence.
¶ 2 In June 2012, a jury convicted defendant, Tremayne R. Willis, of first degree murder (720 ILCS 5/9-1(a)(3) (West 2010)), and the trial court later sentenced him to 43 years in prison. He appealed, and this court affirmed his conviction. People v. Willis, 2014 IL App (4th) 130118, ¶ 47, 57 N.E.3d 492.
¶ 3 In April 2016, defendant filed a postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Defendant later hired private counsel who filed an amended postconviction petition in November 2020. In August 2021, the State filed a motion to dismiss the amended petition, arguing, in part, that the petition was not timely filed. In November 2021, the trial court concluded that the amended petition was untimely and granted the State's motion to dismiss.
¶ 4 Defendant appeals, arguing that (1) defendant's postconviction counsel provided unreasonable assistance by failing to properly amend the petition to explain why the late filing of the petition did not constitute culpable negligence and (2) the dismissal should be reversed and this case remanded for a third-stage evidentiary hearing because defendant's amended petition made a substantial showing that he received ineffective assistance of trial and direct-appeal counsel.
¶ 5 Because we agree with defendant's first argument, we need not consider his second argument. We vacate the trial court's dismissal of defendant's amended postconviction petition and remand for (1) the appointment of new counsel and (2) additional postconviction proceedings.
¶ 6 I. BACKGROUND
¶ 7 A. The Charges and Defendant's Jury Trial
¶ 8 The State charged defendant with first degree murder (720 ILCS 5/9-1 (a)(3) (West 2010)) and aggravated discharge of a firearm (id. § 24-1.2(a)(1)). At defendant's June 2012 jury trial, the following evidence was presented.
¶ 9 On the evening of July 4, 2011, defendant was in downtown Springfield, watching fireworks with his girlfriend and some friends. After the fireworks were finished, they returned to the girlfriend's house, near the corner of North Stephens Avenue and Ridge Avenue. By that time, it was after 11 p.m. They had some drinks, and they talked.
¶ 10 Defendant asked his girlfriend "if it was cool if [they went] ahead and [shot] the gun in celebration." (This is a quote from defendant's testimony.) He then took a semiautomatic rifle out of the trunk of his car. Aaron Miller, a friend, asked defendant what he was doing. Defendant replied he "was going to go shoot [the rifle] at the corner in celebration." Miller got excited, saying he had never "seen an AK before" (referring, evidently, to an AK-47 rifle). The two of them walked to the corner.
¶ 11 Beyond some trees, at 2430 North Grand Avenue East, there was an apartment building or, more precisely, a house divided into apartments. Defendant had often passed by that house while driving his girlfriend to work. Various witnesses for the State testified that the house had lighting the evening of July 4, 2011, and that the house was visible from the railroad tracks near the corner of North Stephens Avenue and Ridge Avenue.
¶ 12 At trial, defendant insisted that when he stood with Miller at the corner of North Stephens Avenue and Ridge Avenue the night of July 4, 2011, and fired off three shots, he did not fire in the direction of the house. He testified that, instead, he aimed to the right of the house and that he fired upward at a 70- to 80-degree angle, toward a point between a utility pole and a different house that was abandoned.
¶ 13 Defendant testified that after he fired three shots, Miller took the rifle. Defendant looked to the right to make sure no car was approaching on North Stephens Avenue. By the time he turned back, Miller already had fired three shots. Defendant noticed the rifle was pointing toward the tree line, in the direction of 2430 North Grand Avenue East, and that the rifle was not angled upward. He asked Miller:" ['] What are you doing?[']" and he took the rifle from him.
¶ 14 Travis Williams and Valerie Larson shared an apartment at 2430 North Grand Avenue East, and on July 4, 2011, Steven Rogers and Amy Shelabarger came over for a visit. It was 11:30 p.m., and the four of them were sitting in the living room, watching television. Williams, Larson, and Rogers were sitting on the couch.
¶ 15 Williams, Larson, and Shelabarger testified they heard a rapid succession of at least three shots, which sounded different from fireworks. The first round went through a bedroom wall, shaking the house. The second round went through the living room wall, and then through Williams's arm, and then through Larson's left shoulder, and then into Rogers's armpit, fracturing ribs and tearing through both lungs until it came to rest in the muscle tissue of his back. Rogers died from the gunshot wound.
¶ 16 The jury convicted defendant of both charges, and the trial court later sentenced him to 43 years in prison.
¶ 17 B. Defendant's Direct Appeal
¶ 18 Defendant appealed, arguing that (1) the trial court erred by refusing to instruct the jury on reckless discharge of a firearm or on involuntary manslaughter and (2) it was a violation of the one-act, one-crime rule to convict him of both felony murder and the predicate felony of aggravated discharge of a firearm.
¶ 19 In December 2014, this court vacated defendant's conviction for aggravated discharge of a firearm on one-act, one-crime grounds but otherwise affirmed the trial court's judgment. People v. Willis, 2014 IL App (4th) 130118, ¶ 3.
¶ 20 C. The Postconviction Proceedings
¶ 211. Defendant s Pro Se Postconviction Petition
¶ 22 At issue in this case is the pro se postconviction petition defendant filed in April 2016. Later that month, the trial court appointed counsel for defendant, advancing his petition to the second stage of proceedings.
¶ 23 Over the next few years, different attorneys represented defendant on his postconviction petition and then withdrew. Ultimately, defendant hired counsel, who filed an amended postconviction petition on defendant's behalf in February 2021.
¶ 24 2. The Allegations in the Amended Postconviction Petition
¶ 25 The amended petition incorporated by reference the claims in defendant's pro se petition and alleged that trial counsel had provided ineffective assistance by, among other deficiencies, failing to call Aaron Miller to testify despite telling the jury in opening statement that it would hear Miller's statements regarding the shooting. Defendant contended that counsel's errors resulted in extreme prejudice to defendant's position at trial.
¶ 26 3. The State s Motion To Dismiss the Amended Petition
¶ 27 In August 2021, the State filed a motion to dismiss the amended petition. The State's motion primarily asserted that defendant's postconviction petition was untimely and therefore should be dismissed. The State's argument regarding the untimeliness of the petition reads as follows:
"This post-conviction petition should be dismissed because it was not filed within the mandatory limitations period in 725 ILCS 5/122-1(c). The version in effect at the time of the petition provided, in relevant part: 'If a petition for certiorari [to the United States Supreme Court] is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition.' The 'date for filing a certiorari petition' is '90 days after entry of the order [by the state court of last resort] denying discretionary review.' U.S. Supreme Court Rule 13(1). The Illinois Supreme Court denied review on May 27, 2015. People v. Willis, 32 N.E. 3d 678 (Table) (No. 118849) (May 27, 2015). 90 days later is August 25, 2015, and 6 months after that date was February 25, 2016. However, Defendant's initial petition was not filed until April 7, 2016. The failure to file within the statute of limitations renders the Amended Petition subject to dismissal regardless of the merits of its claims. People v. Burris, 315 Ill.App.3d 615, 619 (2d Dist. 2000)."
¶ 28 4. Postconviction Counsel s Response to the State s Motion To Dismiss
¶ 29 In September 2021, defendant's postconviction counsel filed a seven-page response to the State's motion to dismiss in which counsel addressed on the merits the State's claims that the record did not show that defendant had received ineffective assistance of trial counsel. However, with regard to the timeliness of the postconviction petition, postconviction counsel's response consisted of one paragraph, which reads as follows:
"The State is correct-the pro se petition was late by 41 days. The delay was through no culpable negligence of the petitioner. The negligence required to dismiss a petition has been found to be akin to recklessness. People v. Boclair, 202 Ill.2d 89 (2002). The petitioner is without a legal background, was in prison, was prevented from timely access to legal material or forms and filed the petition as soon as he was able. The Petitioner should be allowed to show that he was not culpably negligent in the late filing and this opportunity should be presented at a third stage hearing. People v. Wheeler, 392 Ill.App.3d 303 (2009); People v. Wright, 189 Ill.2d 1 (1999)."
¶ 30 5. The Hearing on the State s Motion To Dismiss and the Trial Court's Decision
¶ 31 In November 2021, the trial court conducted a hearing on the State's motion to dismiss. The State argued that defendant did not establish a lack of culpable negligence for his untimely filing.
¶ 32 In response, postconviction counsel argued the following:
"I believe that dismissing the petition at this stage would require a showing of what the Supreme Court has called something akin to recklessness.
As I read the case law, and as we said in our response, the timely filing of the petition, [defendant] without a legal background was in prison, could not get access to a law library. He filed the petition as soon as he could, and I believe whether he was mistakenly shown culpable negligence, it requires the third stage hearing so that [defendant] can testify as to the circumstances in filing the petition forty-one days late."
¶ 33 A week after the hearing, the trial court entered a written order granting the State's motion to dismiss with prejudice. The court explained, in part, that it found the amended petition untimely.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 Defendant appeals, arguing that (1) defendant's postconviction counsel provided unreasonable assistance by failing to properly amend the petition to explain why the late filing of the petition did not constitute culpable negligence and (2) the dismissal should be reversed and this case remanded for a third-stage evidentiary hearing because defendant's amended petition made a substantial showing that he received ineffective assistance of trial and direct-appeal counsel.
¶ 37 Because we agree with defendant's first argument, we need not consider his second argument. We vacate the trial court's dismissal of defendant's amended postconviction petition and remand for (1) the appointment of new counsel and (2) additional postconviction proceedings.
¶ 38 A. The Applicable Law
¶ 39 At the second stage of postconviction proceedings, an indigent petitioner is entitled to appointed counsel under the Act. 725 ILCS 5/122-4 (West 2016). The Act provides for a "reasonable level" of assistance, and to assure that assistance, Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) imposes specific duties on postconviction counsel. People v. Perkins, 229 Ill.2d 34, 42 (2007). The supreme court in Perkins explained postconviction counsel's duties under Rule 651(c) as follows: "counsel must: (1) consult with the petitioner either by mail or in person to ascertain the contentions of deprivation of constitutional rights; (2) examine the record of the trial court proceedings; and (3) make any amendments to the pro se petition necessary for an adequate presentation of the petitioner's contentions." Id. Remand is required when postconviction counsel has failed to fulfill the duty of amendment of the pro se petition, regardless of whether the claims raised in the petition had merit. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 42.
¶ 40 The duty to properly present a defendant's claims "necessarily includes attempting to overcome procedural bars" that will otherwise defeat his claims. Perkins, 229 Ill.2d at 44. "Postconviction counsel must try to meet procedural requirements in order to adequately advance [a] defendant's claims under the Act." Schlosser, 2017 IL App (1st) 150355, ¶ 38.
¶ 41 B. This Case
¶ 42 Defendant concedes on appeal, as he did before the trial court, that he filed his pro se postconviction petition 41 days late. Defendant asserts that although the late filing of the petition can procedurally bar him from otherwise deserved postconviction relief, his failure to file a postconviction petition within the applicable limitations period may be excused if defendant "alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 2016). In People v. Johnson, 2017 IL 120310, ¶ 26, the Illinois Supreme Court wrote that the" 'culpably negligent' standard contemplates 'something greater than ordinary negligence and is akin to recklessness.'" (quoting Boclair, 202 Ill.2d at 108). Accordingly, "[t]o show a lack of culpable negligence, a defendant must present allegations of specific fact showing why his tardiness should be excused [citation]; vague or conclusory assertions will not suffice." People v. Evans, 2017 IL App (1st) 143268, ¶ 26.
¶ 43 Defendant asserts his postconviction counsel failed to meet these standards because counsel did not amend defendant's pro se petition to allege any such specific facts. Defendant contends that for his petition to survive dismissal on procedural grounds, postconviction counsel needed to amend the petition to include facts explaining its untimely filing and, if necessary, provide documentary support that was lacking in the pro se petition.
¶ 44 Defendant also contends that although postconviction counsel provided the State and the trial court a "Response to the State's Motion to Dismiss," counsel was obligated instead to file an amended petition that (1) addressed the untimely filing of the pro se petition and (2) was supported by affidavits or other documentation. Defendant asserts that counsel's "response" was insufficient because it "only briefly mentions timeliness to make a conclusory assertion that [defendant] was not culpably negligent, and to assert counsel's position that he should be allowed to prove his lack of culpable negligence at an evidentiary hearing."
¶ 45 We conclude that postconviction counsel failed to render reasonable assistance in amending defendant's pro se petition. Knowing that defendant's pro se petition was filed 41 days late, postconviction counsel was required to confer with defendant to ascertain whether there was an excuse for the late filing and then to allege specific facts excusing the late filing in the amended petition. Here, counsel failed to allege any facts in an amended petition excusing the untimeliness and instead chose to provide a response to the State's motion to dismiss that alleged only that defendant (1) was without a legal background, (2) was in prison, (3) was prevented from timely access to legal materials or forms, and (4) filed the petition as soon as he was able.
¶ 46 Perhaps these are the only facts that exist. However, by arguing in his written response and again at oral argument that defendant should be permitted to explain at a third-stage hearing why he was not culpably negligent, counsel implied that there are additional facts defendant would later provide. If additional facts exist, they should have been alleged in an amended petition and (1) in an affidavit of defendant or (2) other supporting documentation.
¶ 47 Even if no additional facts exist, counsel was required to attach an affidavit or other documentation to support the allegations in his response. Illinois law mandates that postconviction petitions "have attached thereto affidavits, records, or other evidence supporting its allegations." 725 ILCS 5/122-2 (West 2016). In the present case, postconviction counsel failed to attach any documentation to support defendant's claim that he did not act with culpable negligence. Indeed, counsel did not even file an affidavit from defendant himself providing the details regarding the late filing which postconviction counsel claimed defendant would be able to testify about at a third-stage evidentiary hearing. In short, counsel believed he had evidence that would show defendant's late filing should be excused, but counsel did not understand that he needed to attach that evidence to the petition to survive second-stage proceedings.
¶ 48 It may be that upon remand, new postconviction counsel will not be able to file any documents that would meet the standard of showing that defendant was not culpably negligent in his failure to meet the deadline for filing his pro se postconviction petition. However, we decline to speculate on the record before us that nothing is available to postconviction counsel to show that defendant's untimely filing of his postconviction petition was not due to his culpable negligence.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we vacate the trial court's dismissal of defendant's amended postconviction petition and remand for the appointment of new counsel and additional postconviction proceedings.
¶ 51 Vacated and remanded with directions.