People v. Janusz

1

2024 IL App (2d) 220348

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JANUSZ, Defendant-Appellant.

No. 2-22-0348

Court of Appeals of Illinois, Second District

February 14, 2024

Appeal from the Circuit Court of De Kalb County. No. 14-CF-575 Honorable Philip G. Montgomery, Judge, Presiding.

Attorneys for Appellant: James E. Chadd, Thomas A. Lilien and R. Christopher White, of State Appellate Defender's Office, of Elgin, for appellant.

Attorneys for Appellee: Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, Edward R. Psenicka and Max C. Boose, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE KENNEDY delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

KENNEDY JUSTICE

¶ 1 At issue in this appeal is whether defendant, Richard Janusz, received unreasonable assistance of his retained postconviction counsel because counsel labored under an actual conflict of interest at the first stage of the proceedings. For the following reasons, we agree with defendant that he received unreasonable assistance of postconviction counsel.

¶ 2 I. BACKGROUND

¶ 3 A. Trial Court Proceedings

¶ 4 On October 6, 2014, a grand jury indicted defendant on a total of 30 counts: 26 for predatory criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/11-1.40(a)(1) (West 2014)) and 4 for the manufacture of child pornography (id. § 11-20.1(a)(1)(i), (vii)). Following the indictment, defendant retained private counsel, who entered an appearance on November 4, 2014, and the court discharged defendant's appointed counsel.

¶ 5 The case was continued multiple times at defendant's request: January 22, 2015 (for defense counsel to review discovery); March 12, 2015 (for defense counsel to review evidence in the possession of the police department); April 23, 2015 (following receipt of disclosures from the State); July 14, 2015 (after retaining an expert); August 24, 2015 (based on defendant's divorce trial set in September); October 15, 2015 (awaiting the ruling on defendant's divorce case); December 3, 2015 (following the resolution of defendant's divorce case and the release of marital funds); January 4, 2016 (to acquire experts); and March 3, 2016 (waiting to hear from retained experts). Defendant was not arraigned until April 21, 2016.

¶ 6 Following defendant's arraignment, trial counsel requested additional discovery, and the case was continued upon that request. In July 2016, the trial court stated that the case was getting old and that the parties needed to go to trial or agree to a plea. Trial counsel responded that the defense was still waiting on a hired expert, and counsel asked for a continuance. The delay was due to defendant's divorce case, which had frozen the money needed to retain the expert. The trial court granted the continuance and several more, taking the case into 2017.

¶ 7 On October 12, 2017, defendant moved to dismiss the case on speedy-trial grounds. He argued, in part, that the 630-day delay in his arraignment was attributable to the State. Defendant amended the motion twice, specifying continuances that he argued were attributable to the State. On February 1, 2018, the trial court denied the third amended motion to dismiss.

¶ 8 Defendant was subsequently tried by jury and convicted of 11 counts of predatory criminal sexual assault of a child and 4 counts of manufacturing child pornography. He was sentenced to 101 years' incarceration.

¶ 9 Following the jury verdict, trial counsel withdrew and defendant retained substitute counsel (hereafter, postconviction counsel), who entered an appearance on July 13, 2018, and represented defendant for the remainder of the trial court proceedings, on direct appeal, and in postconviction proceedings. On July 30, 2018, through postconviction counsel, defendant moved for a new trial and/or judgment notwithstanding the verdict, arguing that the trial court erred in denying his motion to dismiss based on a speedy-trial violation and that he received ineffective assistance of trial counsel when trial counsel failed to submit instructions on the lesser included offense of aggravated criminal sexual abuse. The trial court denied the motion.

¶ 10 B. Direct Appeal

¶ 11 On direct appeal, defendant was still represented by postconviction counsel, who raised two arguments: (1) the trial court erred in denying his motion to dismiss based on a speedy-trial violation because his arraignment did not occur within the 120-day statutory period (see 725 ILCS 5/103-5(a) (West 2016)) and (2) the trial court erred in denying his motion for a new trial based on trial counsel's ineffectiveness in failing to seek an instruction on the lesser included offense of aggravated criminal sexual abuse. People v. Janusz, 2020 IL App (2d) 190017, ¶ 49. We rejected both arguments and affirmed. Id. ¶¶ 62, 75, 77.

¶ 12 In rejecting defendant's speedy-trial argument, we reasoned that section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2016)) required his trial, not his arraignment, to occur within the speedy-trial statute's 120-day time frame. Janusz, 2020 IL App (2d) 190017, ¶ 59. Furthermore, we reasoned that the only challenged delay in defendant's trial, namely the delay in his arraignment, could be considered occasioned by him and that thus the trial court properly concluded that the many continuances prior to defendant's arraignment were delays occasioned by defendant. Id. ¶¶ 58, 59 n.3, 61.

¶ 13 In rejecting defendant's argument for a new trial based on ineffective assistance of trial counsel, we reasoned that there was no reasonable probability that the jury would have convicted defendant of the lesser included offense of aggravated criminal sexual abuse instead of predatory criminal sexual assault of a child. Id. ¶¶ 70, 75.

¶ 14 C. Postconviction Proceedings

¶ 15 Again, through postconviction counsel, defendant petitioned for postconviction relief on March 9, 2022. The petition raised two constitutional claims: (1) trial counsel was ineffective for failing to demand trial during the 630-day period between defendant's arrest and his arraignment and (2) trial counsel was ineffective for filing a frivolous Franks motion (see Franks v. Delaware, 438 U.S. 154 (1978)) on February 23, 2017, instead of demanding trial at defendant's request. On May 9, 2022, defendant filed an amended petition alleging the same two claims.

¶ 16 On July 20, 2022, the trial court dismissed the postconviction petition at the first stage of postconviction proceedings. Regarding the speedy-trial argument, the trial court explained that the appellate court had already rejected the argument that the delay between defendant's arrest and his arraignment was not occasioned by him. The trial court also stated that the issues raised in the petition that had already been raised and decided on direct appeal were barred by res judicata and that those that could have been raised were forfeited. It therefore found defendant's claims frivolous and patently without merit.

¶ 17 This timely appeal followed.

¶ 18 II. ANALYSIS

¶ 19 Defendant raises one issue on appeal: whether he received reasonable assistance of postconviction counsel. He argues that he did not receive reasonable assistance because postconviction counsel labored under an actual conflict of interest owing to counsel's former representation of defendant on direct appeal. He contends that postconviction counsel raised issues in defendant's postconviction petition that relied on the record on appeal and could have been litigated on direct appeal, but were not; to avoid a procedural bar, counsel would have been required to plead his own ineffectiveness as appellate counsel.

¶ 20 The State responds first that defendant has forfeited review of his postconviction petition claims because, as defendant admits, postconviction counsel should have raised those issues on direct appeal but did not. The State continues that, even if defendant has not forfeited his postconviction claims, the claims fail on the merits. Finally, the State contends that defendant has failed to establish unreasonable assistance of postconviction counsel because defendant fails to establish a conflict of interest. For the following reasons, we agree with defendant that he received unreasonable assistance of postconviction counsel due to counsel laboring under an actual conflict of interest.

¶ 21 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides a statutory remedy for criminal defendants who claim a violation of their constitutional rights. People v. Edwards, 2012 IL 111711, ¶ 21. The Act establishes a three-stage process for adjudicating postconviction petitions. People v Shipp, 2015 IL App (2d) 131309, ¶ 6. At the first stage, the trial court independently reviews the petition to determine whether the petition is frivolous or patently without merit; a petition may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis in fact or law. People v. Tate, 2012 IL 112214, ¶ 9. At this stage, the State is not involved. Id. If the trial court does not dismiss the petition, it advances to the second stage. Id. ¶ 10.

¶ 22 A defendant does not have a constitutional right to the assistance of counsel at a postconviction proceeding. People v. Moore, 189 Ill.2d 521, 541 (2000). Thus defendants are guaranteed only the level of assistance provided by the Act. People v. Johnson, 2018 IL 122227, ¶ 16. Illinois courts have long held that defendants are entitled to the...