People v. Jackson

58 N.E.3d 10

405 Ill.Dec. 203

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

v.Jarvis JACKSON, Defendant–Appellant.

No. 3–13–0575.

Appellate Court of Illinois, Third District.

Opinion filed Dec. 28, 2015.

Modified upon denial of rehearing filed June 14, 2016.

Michael J. Pelletier and Pamela Rubeo (argued), both of State Appellate Defender's Office, of Chicago, for appellant.

Jerry Brady, State's Attorney, of Peoria (Robert M. Hansen (argued), of State's

Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant Jarvis Jackson pled guilty to two counts of first degree murder in exchange for a sentence of natural life in prison. Five years later, he filed a postconviction petition, which the trial court dismissed. Three years after that, defendant filed a motion for leave to file a successive postconviction petition, which the trial court granted. Defendant's postconviction counsel filed a motion to withdraw and dismiss defendant's successive postconviction petition. The trial court granted the motion. Defendant appeals the dismissal of his successive postconviction petition. We reverse and remand.

¶ 2 FACTS

¶ 3 In January 2001, defendant was charged with two counts of first degree murder for killing Bertha Diaz and Michael Douglas. Defendant initially told police that he was present during the murders of Diaz and Douglas but that Dwaine Johns fired the shots that killed them. Two days later, defendant admitted to police that he fired the fatal shots. Defendant's confession was videotaped. Defendant later filed a motion to suppress the statements that he made to police, but the trial court denied the motion.

¶ 4 In March 2001, defendant pled guilty to two counts of first degree murder in exchange for a sentence of natural life in prison. He admitted that he shot and killed Diaz and Douglas. Five years later, defendant filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appealed, and we dismissed his appeal for lack of jurisdiction.

¶ 5 In July 2006, defendant filed a pro se postconviction petition, arguing ineffective assistance of counsel and actual innocence based on newly discovered evidence. Attached to his petition, were unnotarized affidavits from himself and Johns, claiming that their statements to police were false. He also included copies of grand jury transcripts and a photographic line-up in which Douglas' five-year-old son identified someone other than defendant as the shooter.

¶ 6 In August 2006, the court summarily dismissed defendant's postconviction petition. Defendant filed a motion to reconsider, which the trial court denied. Defendant then appealed. We affirmed the trial court's dismissal, finding that (1) defendant's and Johns' written statements were not affidavits because they were not notarized, that (2) the remaining evidence defendant presented was not “newly discovered,” and (3) defendant's ineffective assistance claim was rebutted by the record, which included defendant's videotaped confession. People v. Jarvis, No. 3–06–0702 (2008) (unpublished order under Supreme Court Rule 23 ).

¶ 7 In July 2009, defendant filed a motion for leave to file a successive postconviction petition, arguing that prison policy prevented his and Johns' affidavits from being notarized. He also asserted that he was denied effective assistance of counsel. Attached to the motion were grand jury transcripts, police reports, wire tap transcripts and new notarized affidavits from himself and Johns. The trial court granted defendant's motion, and postconviction counsel was appointed to represent defendant.

¶ 8 From April 2010 to October 2012, defendant wrote many letters to the court and filed many pro se motions, complaining about postconviction counsel's lack of attention and requesting new counsel. Defendant also filed a complaint with the Illinois Attorney Registration and Disciplinary Committee against his postconviction counsel. The State moved to strike all of defendant's pro se filings because defendant was represented by counsel.

¶ 9 In November 2012, defendant's postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), as well as a “Motion to Dismiss/Leave to Withdraw.” According to counsel's motion, defendant's trial counsel was not ineffective for advising defendant to plead guilty based on the evidence against him, defendant's actual innocence claim lacked merit, and none of the material attached to defendant's petition constituted newly discovered evidence. The motion sought dismissal of defendant's petition and permission for postconviction counsel to withdraw.

¶ 10 A hearing was held on counsel's motion. Defendant was present and informed the court that he had spoken to postconviction counsel only two times. The court asked the prosecutor if the State had a position regarding the motion. The prosecutor responded that the motion was “exceptionally well taken” given that defendant pled guilty, confessed on video and implicated himself at Johns' trial. The prosecutor further stated: “I would ask that the Court rule on [postconviction counsel's] Motion to Dismiss, because I don't see any merit whatsoever in anything [defendant has] filed.”

¶ 11 The court granted counsel's motion to withdraw and took “all other matters * * * under advisement.” Thereafter, the trial court entered an order dismissing defendant's successive postconviction petition.

¶ 12 ANALYSIS

¶ 13 A postconviction proceeding is a collateral proceeding that allows review of constitutional issues that were not, and could not have been, adjudicated on direct appeal. People v. Ortiz, 235 Ill.2d 319, 328, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009). The Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2010)) generally contemplates the filing of only one postconviction petition. Ortiz, 235 Ill.2d at 328, 336 Ill.Dec. 16, 919 N.E.2d 941. However, a defendant may seek leave of court to file a successive postconviction petition. 725 ILCS 5/122–1(f) (West 2010). Obtaining leave of court is a condition precedent to filing a successive postconviction petition. People v. Simmons, 388 Ill.App.3d 599, 605, 328 Ill.Dec. 50, 903 N.E.2d 437 (2009).

¶ 14 When a defendant is granted leave to file a successive postconviction petition, the petition is effectively advanced to the second stage of postconviction proceedings. See People v. Wrice, 2012 IL 111860, ¶ 90, 357 Ill.Dec. 33, 962 N.E.2d 934 ; People v. Almodovar, 2013 IL App (1st) 101476, ¶ 81, 368 Ill.Dec. 375, 984 N.E.2d 100. Section 122–5 of the Act governs proceedings at the second stage and provides in pertinent part as follows:

“Within 30 days * * * the State shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, the State must file an answer within 20 days after such denial. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party.” 725 ILCS 5/122–5 (West 2010).

¶ 15 The Act requires that the State “move to dismiss” the postconviction petition. Id. Since the Act does not define the word “move,” we look to a dictionary to determine its ordinary and popularly understood meaning. See Commonwealth Edison Co. v. Illinois Commerce Comm'n, 2014 IL App (1st) 132011, ¶ 33, 384 Ill.Dec. 408, 16 N.E.3d 801. According to Black's Law Dictionary, “move” means “[t]o make an application (to a court) for a ruling, order or some other judicial action.” Black's Law Dictionary 1035 (7th ed. 1999).

¶ 16 Postconviction defense counsel may not argue against a client's interests by seeking dismissal of a defendant's postconviction petition. See People v. Shortridge, 2012 IL App (4th) 100663, ¶ 15, 358 Ill.Dec. 10, 964 N.E.2d 679 ; People v. Sherman, 101 Ill.App.3d 1131, 1133–34, 57 Ill.Dec. 506, 428 N.E.2d 1186 (1981). If appointed postconviction counsel believes that a client's postconviction petition is frivolous and patently without merit, then counsel should file a motion to withdraw as counsel, rather than seek dismissal of the petition. People v. Elken, 2014 IL App (3d) 120580, ¶ 36, 382 Ill.Dec. 113, 12 N.E.3d 113.

¶ 17 Postconviction counsel's motion to withdraw must explain why each of the petitioner's claims is frivolous or patently without merit. People v. Kuehner, 2015 IL 117695, ¶ 21, 392 Ill.Dec. 347, 32 N.E.3d 655. When the trial court grants a motion to withdraw, the court may appoint new counsel or allow the defendant to proceed pro se. Shortridge, 2012 IL App (4th) 100663, ¶ 15, 358 Ill.Dec. 10, 964 N.E.2d 679. However, if a trial court grants a motion to withdraw after the postconviction petition has advanced to the second stage of postconviction proceedings and counsel fails to explain why all of the claims are frivolous or patently without merit, the proper remedy is to reverse and appoint new postconviction counsel on remand. See Kuehner, 2015 IL 117695, ¶ 25, 392 Ill.Dec. 347, 32 N.E.3d 655.

¶ 18 It is improper for a trial court to dismiss a postconviction petition simply because postconviction counsel has been allowed to withdraw as counsel. See People v. Thomas, 2013 IL App (2d) 120646, ¶¶ 3, 8, 372 Ill.Dec. 604, 992 N.E.2d 143 ; People v. Greer, 341 Ill.App.3d 906, 910, 275 Ill.Dec. 737, 793 N.E.2d 217 (2003). “The fact that counsel has been granted leave to withdraw does not mean that the postconviction petition is dismissed.” Greer, 341 Ill.App.3d at 910, 275 Ill.Dec. 737, 793 N.E.2d 217. Instead, the State must file a motion to dismiss the petition. Id.

¶ 19 Here, appointed counsel's “Motion to Dismiss” was improper. See Elken, 2014 IL App (3d) 120580, ¶ 36, 382 Ill.Dec. 113, 12 N.E.3d 113 ; Shortridge, 2012 IL App (4th) 100663, ¶ 15, 358 Ill.Dec. 10, 964 N.E.2d 679 ; Sherman, 101 Ill.App.3d at 1133–34, 57 Ill.Dec. 506, 428 N.E.2d 1186. The State, not defendant's counsel, was required to bring such a...