People v. Bryant

2022 IL App (2d) 200279

221 N.E.3d 496

468 Ill.Dec. 668

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Edward L. BRYANT, Defendant-Appellant.

No. 2-20-0279

Appellate Court of Illinois, Second District.

Opinion filed April 14, 2022

James E. Chadd, Douglas R. Hoff, and Benjamin Wimmer, of State Appellate Defender's Office, of Chicago, for appellant.

J. Hanley, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 We consider in this case the proper procedure for appointed counsel to withdraw from postconviction proceedings per our supreme court's decision in People v. Kuehner , 2015 IL 117695, 392 Ill.Dec. 347, 32 N.E.3d 655. We hold that such a motion cannot be granted unless the record shows defendant has had an opportunity to respond to it.

¶ 2 I. BACKGROUND

¶ 3 In 2006, defendant, Edward L. Bryant, was charged with first degree murder ( 720 ILCS 5/9-1(a)(2) (West 2006)) in the death of his neighbor, William Jacobson. Jacobson was found beaten to death in the basement inside his home. A bloodied brick and a table leg were found at the crime scene, and Jacobson's blood was found on a pair of defendant's shorts.

¶ 4 Defendant's roommate, Patricia Smith, testified that she heard voices at Jacobson's house and the sound of "metal" falling over in the basement. She then heard Jacobson call out, " ‘Ed’ "—defendant's first name. Smith also identified the camouflage shorts (with Jacobson's blood on them) as the ones defendant had been wearing the night of the murder. She testified pursuant to a cooperation agreement to dismiss a residential burglary charge because, after Jacobson was killed, she entered his home and stole some items. Prince Bey, defendant's fellow inmate, jailed on drug charges, testified that defendant said that he "got into it with some old man" over having paid someone else money defendant felt he was owed and that defendant hit the man in the head. Defendant testified that he believed that he got Jacobson's blood on his shorts a week before the murder, when Jacobson cut his lip and spit out some beer, and then the wind blew the bloodied mist onto defendant's shorts.

¶ 5 A jury found defendant guilty, and the trial court (Judge Rosemary Collins) sentenced him to the maximum nonextended term of 60 years’ imprisonment. We affirmed defendant's conviction and sentence on direct appeal. People v. Bryant , 2013 IL App (2d) 110994-U, 2013 WL 3149035.

¶ 6 In March 2014, defendant filed a pro se postconviction petition, in which he asserted several claims, including ineffective assistance of trial counsel, largely for failure to investigate possible impeachment evidence—specifically, regarding Smith's mental health history (at trial, she disclosed that she was bipolar, on medication, and smoked crack cocaine daily, including the night of the murder) and other inmates’ claims that they heard Bey say that he lied about hearing defendant admit killing Jacobson. Defendant also alleged that his counsel failed to show him all of the State's discovery, including the video of his interrogation.

¶ 7 The trial court (again, Judge Collins) reviewed the petition, advanced it to the second stage of postconviction proceedings, and appointed Assistant Public Defender Gary Pumilia. Pumilia later withdrew because he was mentioned as a possible witness in the petition, and the court appointed attorney Patrick E. Braun as counsel for defendant in July 2014.

¶ 8 Over the next few years, Braun represented to the court that he was reviewing the record and communicating with defendant. Braun also sought and received all of the State's trial discovery in May 2018.

¶ 9 On December 6, 2019, Braun advised the court (now Judge Randy Wilt) that he had sent a copy of the amended postconviction petition to defendant for his review and that the two had corresponded on its contents and the need for additional case citations. On Braun's motion, the case was again continued.

¶ 10 On January 31, 2020, Braun moved to withdraw pursuant to Kuehner , 2015 IL 117695, 392 Ill.Dec. 347, 32 N.E.3d 655. As part of his 10-page motion, Braun set forth the claims from defendant's pro se petition and explained why each lacked arguable merit. In addition, Braun also filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), stating that he consulted with defendant by mail, examined the record, and made any amendments necessary to present defendant's claims. The court asked Braun to send to defendant a copy of the motion to withdraw, and Braun said that he would. Braun then asked if the court wanted to issue a writ for defendant to appear at the next date, to which the court replied, "That's not a bad idea. We should bring him back." Braun stated that he would prepare the writ, and the case was continued. We note, too, that the docket entry for that date states, "Defendant to be writ back to address defense counsel's motion. Cause [c]ontinued."

¶ 11 On March 6, 2020, Braun returned to court, but defendant was not present. It appears that no writ was ever filed to bring defendant to court and his absence was never addressed.

¶ 12 Braun told the court that he had sent to defendant a copy of his motion to withdraw and that defendant had asked the court to appoint another attorney for him if Braun's motion was granted. The court stated that it viewed Braun's motion to withdraw as an " Anders brief." Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court granted the motion to withdraw and denied defendant's request for the appointment of new counsel. The court initially said that it would give defendant until May 1, 2020, to file an amended petition, but then the court recalled the case sua sponte and said that it would "modif[y]" its prior order and "enter an order dismissing the postconviction petition."

¶ 13 Defendant filed a notice of appeal, which included as an exhibit a copy of the amended petition Braun prepared on his behalf, and the trial court appointed the Office of the State Appellate Defender to represent him.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant contends that he was denied a "meaningful opportunity" ( People v. McMillen , 2021 IL App (1st) 190442, ¶ 17, 454 Ill.Dec. 369, 189 N.E.3d 930 ) to respond to Braun's motion to withdraw before the trial court granted it and dismissed his postconviction petition. The State asserts that defendant "was both informed of Braun's intent to withdraw, and his response was represented to the trial court." We review for an abuse of discretion the trial court's decision on postconviction counsel's motion to withdraw. People v. Richey , 2017 IL App (3d) 150321, ¶ 20, 415 Ill.Dec. 612, 82 N.E.3d 816 (citing People v. Catalano , 29 Ill. 2d 197, 204, 193 N.E.2d 797 (1963) ). Having applied that standard, we agree with defendant that the court abused its discretion in this case.

¶ 16 The Post-Conviction Hearing Act sets forth a procedure by which a criminal defendant may assert that his conviction was based on a substantial denial of his rights under the federal or state constitutions or both. 725 ILCS 5/122-1(a)(1) (West 2020). At the second stage, indigent defendants are entitled to appointment of postconviction counsel. Id. § 122-4. Both retained and appointed counsel must supply reasonable assistance at the second stage of postconviction proceedings. People v. Cotto , 2016 IL 119006, ¶ 42, 402 Ill.Dec. 50, 51 N.E.3d 802 ; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 17 "Reasonable assistance" does not require counsel to advance frivolous or spurious claims on a defendant's behalf. In People v. Greer , 212 Ill. 2d 192, 209, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004), our supreme court held that postconviction counsel may seek leave to withdraw if "counsel determines that [the] defendant's petition is frivolous and patently without merit" and counsel feels that he or she cannot ethically continue to advance the defendant's claims. This, the court noted, is similar to the procedure set forth in Anders , 386 U.S. 738, 87 S.Ct. 1396, which permits counsel to seek leave to withdraw on direct appeal. Greer , 212 Ill. 2d at 209, 288 Ill.Dec. 153, 817 N.E.2d 511. In Kuehner , 2015 IL 117695, 392 Ill.Dec. 347, 32 N.E.3d 655, the court expanded on Greer to hold that appointed counsel's oral motion to withdraw is insufficient. Rather, counsel must file a written motion explaining why each of the defendant's pro se claims lacks merit. Id. ¶ 24.

¶ 18 Although there is no constitutional right to counsel in state postconviction proceedings ( Pennsylvania v. Finley , 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ; People v. Urzua , 2021 IL App (2d) 200231, ¶ 62), 451 Ill.Dec. 939, 184 N.E.3d 526, there is a through-line in the procedure set out in the United States Supreme Court's decision in Anders and our supreme court's decisions in Kuehner and Greer . In Anders , the Court held that, when an attorney appointed to represent an indigent defendant finds a case wholly frivolous on direct appeal,

"he should so advise the [reviewing] court and request permission to withdraw.

That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders , 386 U.S. at 744, 87 S.Ct. 1396.

¶ 19 Consistent with Anders , Kuehner , and Greer , several appellate court decisions have held that the defendant must be given notice of postconviction counsel's motion to withdraw and "a meaningful opportunity to respond" to the motion. McMillen , 2021 IL App (1st) 190442, ¶...