People v. Addison

2023 IL 127119

217 N.E.3d 1011

466 Ill.Dec. 735

The PEOPLE of the State of Illinois, Appellant,

v.Dion ADDISON, Appellee.

Docket No. 127119

Supreme Court of Illinois.

Filed April 20, 2023

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and Stephanie T. Puente, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 At issue is whether (1) postconviction counsel rendered unreasonable assistance by failing to frame the issues in defendant Dion Addison's amended postconviction petition as ones of ineffective assistance of appellate counsel and, if so, (2) the appellate court properly remanded the case for compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) without considering the merits of the petition. We answer both questions in the affirmative and therefore affirm the appellate court's judgment.

¶ 2 BACKGROUND

¶ 3 On February 22, 2012, defendant, Dion Addison, was charged by indictment with unlawful possession of a motor vehicle, unlawful possession of a converted motor vehicle, forgery, and two counts of theft. The charges arose out of his alleged use of counterfeit money to purchase a motorcycle. He was released on bond. Defendant failed to appear for trial and was tried in absentia.

¶ 4 The jury convicted defendant on all counts. The Kane County circuit court entered judgment on the guilty verdicts and scheduled the sentencing hearing for March 20, 2013. On March 19, 2013, new posttrial counsel filed a motion for judgment notwithstanding the verdict or a new trial. The trial court denied that motion and sentenced the defendant to concurrent terms of 15 years’ imprisonment for unlawful possession of a stolen motor vehicle and five years’ imprisonment for forgery.

¶ 5 Shortly thereafter, defendant was arrested. He appeared with posttrial counsel for a hearing on his motion to reconsider sentence. The trial court denied that motion, and defendant appealed.

¶ 6 On September 24, 2014, defendant spoke on the telephone with appellate counsel. The next day, appellate counsel sent a letter to defendant memorializing their telephone conversation. Appellate counsel told defendant, "As I mentioned during our conversation, the only issue that I found to raise in the appeal was that you are entitled to credit for one more day against your sentence. I wish that I could have found an issue that would provide a basis for overturning your conviction or reducing your sentence more substantially, but unfortunately I was unable to do so." Appellate counsel did not file a brief on the merits. Instead, counsel filed an agreed motion regarding the sentencing credit. In that motion, appellate counsel stated, "After reviewing the complete record on appeal in this case, undersigned counsel has determined that there are no meritorious issues, except for an issue concerning the amount of credit that should be applied toward the defendant's prison sentences." On October 23, 2014, the appellate court granted that motion and awarded defendant two days’ credit in a minute order.

¶ 7 On March 25, 2015, defendant filed a pro se postconviction petition, contending that "trial counsel was deficient in failing to give a good faith defense, failing to investigate, argue points of evidence favorable to defendant, and give defense theory" and that appellate counsel was deficient in failing to raise issues and investigate. Defendant proceeded to render his constitutional claims in more detail, raising 15 issues. In 14 of those, defendant alleged that appellate counsel failed to raise the issue. Defendant included his own affidavit as support for his petition.

¶ 8 The trial court advanced the petition to the second stage and appointed counsel on May 15, 2015. More than two years later, on July 17, 2017, postconviction counsel filed an amended petition. The petition asserted five claims: (1) trial counsel was ineffective for failing to file a motion to suppress statements on grounds of improper Miranda warnings (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ); (2) trial counsel was ineffective for failing to file a motion to suppress statements on grounds that defendant's statement was involuntary; (3) trial counsel was ineffective for failing to object to expert testimony regarding counterfeit currency when no expert was disclosed; (4) trial counsel was ineffective for failing to argue sufficiency of the evidence where there was a discrepancy in the number of notes recovered, inventoried, and introduced as evidence; and (5) the court erred in giving an accountability instruction to the jury. Counsel developed each of these claims over multiple pages of the amended petition. The petition did not assert any claims of ineffective assistance of appellate counsel and nowhere alleged any way in which appellate counsel was ineffective. Postconviction counsel also filed a Rule 651(c) certificate, stating that she had consulted with defendant to ascertain his constitutional claims, she had examined the court file and trial record, and she had made any amendments to defendant's pro se petition necessary to adequately present his claims.

¶ 9 The State filed a motion to dismiss the amended petition, arguing that defendant's claims were forfeited because they could have been raised on direct appeal. Moreover, the State pointed out that defendant had failed to challenge his appellate counsel's strategic decision not to raise these issues on appeal. The motion also alleged that the petition's claims were without merit.

¶ 10 On July 10, 2018, a hearing was held on the State's motion to dismiss. At that hearing, the State continued to point out that these claims could have been raised on direct appeal and that ineffective assistance of appellate counsel had not been alleged. The State made arguments such as:

"Again, counsel was not ineffective. And, Judge, this claim is waived anyways, procedurally barred where defendant could have raised it on direct appeal but did not. And the strategy of appellate counsel has not been challenged.

* * *

Again, judge, this is another claim that was available on appeal and not raised. And, again, as the strategy of counsel has not been challenged, this claim, too, is procedurally barred." (Emphasis added.)

Postconviction counsel presented a lengthy argument in opposition to the motion to dismiss and never once countered the State's assertion that she had failed to allege ineffective assistance of appellate counsel.

¶ 11 After listening to the parties’ arguments, the only questions the trial court had for postconviction counsel concerned the State's forfeiture argument:

"[THE COURT]: One of the arguments that hasn't been addressed in great detail but is addressed in the State's motion to dismiss is the concept of waiver.

And so could you address why you don't believe that these issues that you have addressed would not and could not have been raised on direct appeal?

[POSTCONVICTION COUNSEL]: Your Honor, on information and belief, having spoken to my client, his appellate counsel represented to him that if it wasn't specifically argued at trial that he could not use that information.

* * *

[THE COURT]: *** I am just asking on the waiver argument.

Everything that has been presented by way of the amended [postconviction petition] are arguments that I believe could have been made on direct appeal. Arguments that you have brought forth are all matters that were in the record.

So you don't have to answer. I just wondered if you wished to address it.

* * *

[POSTCONVICTION COUNSEL]: Other than that perhaps there was the same oversight on the appellate level as the trial counsel had."

¶ 12 The trial court granted the State's motion to dismiss, stating that the defendant was not entitled to an evidentiary hearing because he "failed to make a substantial showing of any violation of a Constitutional right." The trial court also entered a written order, which concluded that the defendant "failed to make a substantial showing of a violation of a constitutional right." Neither in open court nor in the written order dismissing the petition did the trial court discuss the merits of defendant's claims. The defendant appealed, arguing that postconviction counsel rendered unreasonable assistance in failing to file his affidavit and failing to argue ineffective assistance of appellate counsel.

¶ 13 The appellate court reversed and remanded. 2021 IL App (2d) 180545, 447 Ill.Dec. 475, 174 N.E.3d 166. The appellate court initially rejected the State's argument that the defendant forfeited collateral review of his conviction by failing to appear at trial. Id. ¶ 20. The court then turned to the merits, addressing the defendant's contention that postconviction counsel rendered unreasonable assistance by failing to amend his pro se petition with ineffective assistance of appellate counsel claims. Id. ¶ 27.

¶ 14 The appellate court explained that any postconviction claims that could have been raised on direct appeal, but were not, are forfeited. Id. ¶ 28. However, the court explained that this forfeiture may be overcome by framing the issues as ones of ineffective assistance of appellate counsel for failing to raise the issues on direct appeal. Id. Here, postconviction counsel failed to do so. The appellate court noted that postconviction counsel alleged multiple claims of ineffective assistance of trial counsel but did not address the performance of appellate counsel. Id. ¶ 29. Further, she did not attempt to present such claims in response to the State's motion to dismiss, which had raised the issue of forfeiture. Id. The appellate court concluded that postconviction counsel rendered unreasonable...