People v. Mares

2018 IL App (2d) 150565

98 N.E.3d 554

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

v.Jeremy R. MARES, Defendant–Appellant.

No. 2–15–0565

Appellate Court of Illinois, Second District.

Opinion filed January 26, 2018

Michael J. Pelletier, Peter A. Carusona, and Emily A. Koza, of State Appellate Defender's Office, of Ottawa, for appellant.

Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, Lawrence M. Bauer, and David A. Bernhard, 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 Defendant, Jeremy R. Mares, appeals from an order of the circuit court of Boone County granting the State's motion to dismiss his amended petition under the Post–Conviction Hearing Act (Act) ( 725 ILCS 5/122–1 et seq. (West 2014) ) for relief from his conviction of armed violence ( 720 ILCS 5/33A–2(a) (West 2010) ). Defendant argues that he is entitled to relief on the basis that the disposition of his direct appeal violated Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and People v. Jones , 38 Ill. 2d 384, 231 N.E.2d 390 (1967). We affirm.

¶ 2 Defendant was convicted following a bench trial. The armed-violence conviction was based on evidence that defendant committed the offense of aggravated battery while armed with a "Category II weapon," namely a box cutter. See 720 ILCS 5/33A–1(c)(2) (West 2010). Defendant was also found guilty of several counts of aggravated battery based on the same incident, but the trial court did not enter a judgment of conviction on those counts. The trial court sentenced defendant to a 10–year prison term for armed violence. Defendant appealed, and the Office of the State Appellate Defender was appointed to represent him. Appointed counsel did not file an appellate brief. Instead, counsel filed an "Unopposed Motion for Summary Disposition," contending that the amount of court costs imposed by the trial court was excessive. The motion sought a refund of the overcharge. The motion stated that "counsel has read the complete record and has found no other issues to raise on appeal." On July 12, 2013, we granted the motion and refunded defendant $162. People v. Mares , No. 2–12–0493 (July 12, 2013) (minute order). Six days later we vacated that order and increased the refund to $200. Mares , No. 2–12–0493 (July 18, 2013) (minute order). The order stated, "THIS ORDER IS FINAL AND SHALL STAND AS THE MANDATE OF THIS COURT." On January 15, 2014, defendant filed a pro se petition under the Act. The trial court appointed counsel to represent defendant, and counsel amended the petition. The State successfully moved to dismiss the amended petition, and this appeal followed.

¶ 3 Defendant now argues that, by doing nothing more than moving for a summary disposition of his direct appeal, appellate counsel failed to act as an advocate for him. According to defendant, if there were no meritorious issues that could be raised on appeal, counsel should have moved to withdraw in accordance with the dictates of Anders and Jones . Otherwise, defendant argues, counsel was obligated to submit an appellate brief (as opposed to a motion for summary disposition). Defendant also argues that proper advocacy in a criminal appeal entails raising some error pertaining to either the adjudication of the defendant's guilt or the sentence imposed. According to defendant, an error in the computation of costs pertains to neither of those subjects. Defendant contends, in essence, that we should reopen the judgment on direct appeal so that he may raise a new, supposedly meritorious issue: whether a box cutter is a dangerous weapon within the meaning of the armed-violence statute. Defendant also argues that, in the interest of judicial economy, we should decide that issue now, rather than granting defendant another appeal.

¶ 4 We preface our analysis of these arguments with a brief review of the legal principles governing proceedings under the Act:

"The Act provides a three-stage process for adjudicating postconviction petitions. At the first stage, the circuit court determines whether the petition is ‘frivolous or is patently without merit.’ [Citation.] The court makes an independent assessment as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief. [Citation.] The court considers the petition's ‘substantive virtue’ rather than its procedural compliance. [Citation.] If the court determines the petition is frivolous or patently without merit, the court dismisses the petition. [Citation.] If the petition is not dismissed, it will proceed to the second stage.

At the second stage, the court may appoint counsel to represent an indigent defendant, and counsel may amend the petition if necessary. [Citation.] The State may then file a motion to dismiss the petition. [Citation.] If the State does not file a motion to dismiss or if the court denies the State's motion, the petition will proceed to the third stage and the court will conduct an evidentiary hearing on the merits of the petition. [Citation.]" People v. Hommerson , 2014 IL 115638, ¶¶ 7–8, 378 Ill.Dec. 459, 4 N.E.3d 58.

To survive a second-stage motion to dismiss, the petition must make a substantial showing of a constitutional violation. People v. Domagala , 2013 IL 113688, ¶ 35, 370 Ill.Dec. 1, 987 N.E.2d 767.

¶ 5 To determine whether defendant's petition should have survived the State's motion to dismiss—i.e. , whether the petition should have proceeded to the third stage—we first examine the salient principles governing an indigent defendant's right to counsel in a criminal appeal. In Douglas v. California , 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the United States Supreme Court reiterated an earlier holding that "a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty." Id. at 355, 83 S.Ct. 814 (citing Griffin v. Illinois , 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ). Applying this principle, the Court invalidated a California rule of criminal procedure that made the appointment of counsel on appeal contingent upon a determination by the appellate court whether, upon a preliminary review of the record, the appointment of counsel would be helpful to the defendant or to the court. Id. The Court reasoned:

"[U]nder [California's] present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required." Id. at 355–56, 83 S.Ct. 814.

The Douglas Court explained that "[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself." Id. at 357–58, 83 S.Ct. 814.

¶ 6 In Anders the Court relied, in part, on this principle as a basis for defining appointed counsel's role on appeal. The question arose where appointed counsel advised the appellate court, by letter, that he had concluded that there was no merit to the appeal and that he would not file a brief on the defendant's behalf. The appellate court refused the defendant's request for new counsel, leaving him to file a pro se brief. The Anders Court held that "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae ." Anders , 386 U.S. at 744, 87 S.Ct. 1396. The Court concluded that counsel was not acting as an active advocate when he submitted a "no-merit letter" to the appellate court. According to the Court:

"[Appointed counsel's] role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the 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 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. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the

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