People v. Nelson

230 N.E.3d 872

2024 IL App (5th) 210311

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

v.Richard L. NELSON, Defendant-Appellant.

NO. 5-21-0311

Appellate Court of Illinois, Fifth District.

Filed February 8, 2024

Appeal from the Circuit Court of Jackson County. No. 14-CF-94, Honorable Michael A. Fiello, Judge, presiding.

James E. Chadd, Ellen J. Curry, Kyle P. Smith, and Eun Sun Nam, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

Joseph A. Cervantez, State’s Attorney, of Murphysboro (Patrick Delfino, Patrick D. Daly, and Becky A. Ray, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

PRESIDING JUSTICE VAUGHAN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Richard L. Nelson, appeals the circuit court’s denial of his petition for postconviction relief following a third-stage evidentiary hearing. Defendant argues that postconviction counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) during the second stage of postconviction proceedings. The State concedes that second-stage postconviction counsel did not file a Rule 651(c) certificate, and the record does not show that he explicitly complied with the rule’s requirements. We, however, disagree with the parties that counsel’s failure to comply with Rule 651(c) requires reversal where the record shows that subsequent postconviction counsel complied with the rule. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A jury found defendant guilty of home invasion (720 ILCS 5/19-6(a)(2) (West 2014)), robbery (id. § 18-1 (a)), and aggravated battery (id. § 12-3.05(a)(1)). The trial court found the aggravated battery conviction was a lesser included offense of the home invasion conviction and sentenced defendant to concurrent sentences of 30 and 10 years in prison for home invasion and robbery, respectively.

¶ 4 Defendant appealed, arguing that the State failed to prove beyond a reasonable doubt that defendant entered a "dwelling place," a necessary element of home invasion, and that the trial court abused its discretion in failing to strictly comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). People v. Nelson, 2018 IL App (5th) 150066-U, ¶ 2. This court affirmed the judgment. Id. ¶ 33.

¶ 5 In July 2019, defendant filed a pro se postconviction petition, asserting several ineffective assistance of trial counsel claims. Defendant claimed trial counsel was ineffective for (1) failing to rebut the State’s closing argument that a motel room was a "residence," (2) implying the State met its burden of proof with regard to an injury and injury occurring in a dwelling place in counsel’s closing arguments, (3) failing to investigate the scene of the crime to determine the conditions in which the eyewitness observed defendant at the crime scene, (4) failing to impeach the State’s witness Roberta Pemberton with her inconsistent written and recorded statements, (5) failing to object to the State’s improper bolstering of its witnesses, and (6) being addicted to cocaine and suffering from attention-deficit/hyper-activity disorder (ADHD) while representing defendant. Defendant further claimed that appellate counsel provided ineffective assistance by failing to raise trial counsel’s ineffectiveness for failing to object to the State’s improper bolstering of its witnesses on appeal. Defendant attached several documents in support of his petition, including a petition to impose discipline on trial counsel for his misconduct in handling other clients’ cases and the ultimate decision from the Illinois Attorney Registration and Disciplinary Commission (ARDC). The ARDC petition noted that a board-certified forensic psychiatrist concluded that trial counsel suffered from stimulant use disorder for cocaine of moderate severity and ADHD and that trial counsel’s stimulant use impaired his capacity to practice law. It further noted that trial counsel admitted to using cocaine as recently as January 2015. As a result of the petition, the ARDC suspended trial counsel from the practice of law for one year.

¶ 6 The circuit court advanced the petition to the second stage and appointed counsel to represent defendant (first-appointed counsel). First-appointed counsel filed an amended postconviction petition on June 15, 2020. The petition alleged substantially the same issues as the pro se petition, except the amended petition omitted the ineffectiveness claims regarding the failure to object to the State’s bolstering of its witnesses and appellate counsel’s failure to raise that claim on appeal. First-appointed counsel also attached the same documents as attached to the pro se petition but did not file a Rule 651(c) certificate.

¶ 7 The State did not file a motion to dismiss or an answer. As such, the circuit court found there was a substantial showing of constitutional violations and advanced the petition to a third-stage evidentiary hearing on January 14, 2021.

¶ 8 At the evidentiary hearing, first-appointed counsel provided an opening statement, noting that trial counsel was heavily addicted to and abused cocaine while representing defendant and that trial counsel admitted to last using cocaine in January 2015, three to four months after representing defendant at trial. He also stated that he was denied an opportunity to review the work of trial counsel because trial counsel destroyed or lost defendant’s case files. Trial counsel was called as the first witness.

¶ 9 Trial counsel averred that his license to practice law remained suspended because he neglected to expunge his case. Trial counsel admitted that he drove by the location of the crime but never physically observed it at night. He also stated that he did not take photographs of the crime location but had pictures from the police.

¶ 10 First-appointed counsel argued that the focus of the court should be on the cumulative prejudicial effect of the facts presented. He contended the failure to observe the crime scene at night—when the crime occurred—prevented trial counsel from effectively cross-examining a key witness who placed defendant at the scene on the night of the crime. Trial counsel also failed to effectively impeach another eyewitness with her inconsistent statements regarding whether she used heroin on the night of the crime. First-appointed counsel further argued that trial counsel effectively gave up the presumption of innocence regarding a "dwelling place" when he conceded that the victim was injured at the motel and did not rebut the State’s closing argument that the motel was a residence.

¶ 11 First-appointed counsel then noted that he saw the daily adverse effects of drug use including the effects that drug abuse had on lawyers. He argued that the ARDC found trial counsel mishandled other cases during the time that trial counsel represented defendant. Trial counsel also admitted that his last known use of cocaine was in January 2015. The ARDC noted that a board-certified forensic psychologist not only found that trial counsel suffered from stimulant use disorder for cocaine but, critically, that the stimulant use disorder impaired his ability to practice law. First-appointed counsel contended that trial counsel’s drug use therefore impaired his ability to effectively cross-examine key witnesses, investigate the crime scene, object to plain error by the trial judge, and decide whether to concede elements of the offense. First-appointed counsel concluded that the cumulative prejudice was overwhelming.

¶ 12 The State argued that all claims, except the ineffectiveness claim regarding trial counsel’s drug use, were barred by res judicata or waived. It explained that the claims regarding whether trial counsel conceded an essential element of the offense and the State’s closing argument were ruled upon by the appellate court in that such action was error but not prejudicial error. The State further stated that all other claims, except the claim regarding trial counsel’s drug abuse and the ARDC decision, were waived because they were not raised in the direct appeal.

¶ 13 With respect to the ineffectiveness claim regarding trial counsel’s drug use, the State argued that trial counsel’s discipline and disbarment by the ARDC were not dispositive of an ineffectiveness claim. Rather, there needed to be some specific claim of inadequate performance directly tied to the ARDC complaint or drug use, and defendant failed to show that here. In fact, the majority of the ARDC complaint concerned mismanagement of client funds and not filing expungement petitions for his clients. The State asserted that there was no indication that trial counsel was actively using any substance during defendant’s trial that would have affected his ability to provide effective representation. To the contrary, the State contended trial counsel zealously advocated for defendant by addressing issues with evidence and witness testimony, presenting coherent arguments on behalf of defendant, and making reasonable strategic decisions. It argued that the defendant was convicted on the evidence and not based on deficient performance of trial counsel.

¶ 14 First-appointed counsel replied that the appellate court in the direct appeal only decided whether or not the trial court erred in not complying with Illinois Supreme Court rules and did not address any question of ineffective assistance of counsel. He admitted it could be argued that such claims were waived for not being raised, but they were not barred by res judicata. First-appointed counsel further contended that stimulant use disorder indicates ongoing use of drugs. As such, the months before trial counsel’s last admitted use—which would have been during defendant’s trial—he was impaired. First-appointed counsel also noted that the court could easily infer drug abuse during the trial based on the performance of trial counsel. He contended that the ARDC would have not concluded...