People v. Thackrey

2021 IL App 190624-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUANE T. THACKREY, Defendant-Appellant.

No. 4-19-0624

Court of Appeals of Illinois, Fourth District

July 12, 2021

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of De Witt County No. 12CF95 Honorable Wm. Hugh Finson, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.

ORDER

HARRIS JUSTICE

¶ 1 Held: Postconviction counsel failed to satisfy the requirements of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) and provide defendant with a reasonable level of assistance, requiring remand for compliance with the rule and further second-stage postconviction proceedings.

¶ 2 Defendant, Duane T. Thackrey, appeals the trial court's second-stage dismissal of his postconviction petition. He argues his case should be remanded for further postconviction proceedings either because (1) he made a substantial showing of a constitutional violation or (2) his postconviction counsel failed to comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). We reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 In September 2012, the State charged defendant with five counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and one count of aggravated criminal sexual abuse (id. § 11-1.60(b)). The charges were based on allegations that, between January 2011 and July 2012, defendant sexually abused his stepdaughter D.D., who was under 13 years of age. It alleged defendant forced D.D. to fondle his penis (count VI) and committed acts of sexual penetration with D.D., including placing his penis finger, and tongue in D.D.'s vagina (counts I, II, and V) and his finger and penis in D.D.'s anus (counts III and IV).

¶ 5 In February 2014, defendant's jury trial was conducted. The State presented evidence showing defendant was married to D.D.'s mother and that he sexually abused D.D. from the time she was 3 or 4 years old until the age of 10. The trial court also permitted the State to introduce evidence of defendant's sexual activity with another minor, A.B pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2012)). Defendant presented the testimony of eight witnesses, including family members and friends, who generally described defendant as having a good relationship with D.D. and her siblings and denied noticing anything unusual or suspicious about the household or defendant's relationship with D.D.

¶ 6 On February 27, 2014, the fourth day of defendant's trial, he failed to appear in court and a warrant was issued for his arrest. On March 3, 2014, the trial recommenced in defendant's absence. The same day, the jury found defendant guilty of each charged offense.

¶ 7 In March 2014, defendant was arrested, and in April 2014, he filed a motion for a new trial. The trial court denied defendant's motion and, in June 2014, sentenced him to a total of 85 years in prison. Defendant filed a direct appeal arguing his sentence was excessive, and in March 2017, this court affirmed. People v. Thackrey, 2017 IL App (4th) 4140516-U.

¶ 8 In August 2018, defendant filed a postconviction petition with the aid of retained counsel. He argued his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred by (1) ruling evidence that D.D. made a sexual abuse accusation against another individual was inadmissible under the rape shield statute (725 ILCS 5/115-7 (West 2012)) and (2) allowing the State to present evidence of his uncharged acts of sexual conduct with A.B. under section 115-7.3 of the Code. The petition also "adopted in its entirety and incorporated by refence" a postconviction petition written by defendant pro se and which included multiple allegations of ineffective assistance of trial counsel along with several exhibits. Specifically, in his pro se petition, defendant alleged his trial counsel was ineffective for failing to (1) raise objections to the charging instrument, (2) inform him of "new [d]iscovery" filed by the State, (3) examine or research medical evidence, (4) object to the introduction of certain evidence, (5) impeach A.B. with her prior statements, (6) investigate witnesses, (7) object to portions of the State's closing argument, and (8) present mitigating evidence of defendant's own past sexual abuse at sentencing.

¶ 9 In August 2018, the trial court made a docket entry stating it had reviewed defendant's postconviction petition and found that it was not frivolous or patently without merit. It advanced the petition to the second stage of postconviction proceedings.

¶ 10 In October 2018, the State filed a motion to dismiss defendant's petition. It argued the petition was untimely, not properly certified by affidavit, and contained speculative and conclusory allegations that did not rise to the level of a substantial deprivation of a constitutional right. Further, the State argued the ineffective-assistance-of-counsel claims set forth in defendant's pro se petition were (1) "waived, forfeited, and procedurally defaulted" because they could have been raised on direct appeal but were not; (2) "speculative and conclusory" and improperly "not supported by affidavit, records[, ] or other evidence"; and (3) concerning matters of trial strategy.

¶ 11 In February 2019, the trial court allowed defendant's retained counsel to withdraw. On defendant's motion, the court appointed new counsel, attorney Steven Jones, to represent defendant. In July 2019, Jones filed a certificate pursuant to Rule 651(c), certifying as follows:

" 1. That I have consulted with [defendant] by phone, mail, electronic means or in person to ascertain his contentions of deprivation of constitutional rights.

2. That I have examined the record of the proceedings at the plea of guilty and the report of proceedings in the sentencing hearing; and

3. I have made any amendments to the petition filed by [defendant's] previous counsel that are necessary for adequate presentation of [defendant's] contentions."

¶ 12 In September 2019, the trial court conducted a hearing on the State's motion to dismiss defendant's postconviction petition. At the outset of the hearing, the State withdrew its argument that defendant's petition was untimely. In presenting defendant's arguments to the court, Jones addressed the State's forfeiture argument, stating as follows:

"With respect to the ineffective assistance of trial counsel, we don't argue the fact that on appeal, counsel only brought up the excessive nature of the sentence, but I believe in the record the defendant filed a pro se supplemental brief based upon the fact that [appellate] counsel did not raise the ineffective assistance of trial counsel [claims], and [I] believe that would preserve the issue[s] of the ineffective assistance of trial counsel, and should be considered and would rise to the level of allowing the defendant's petition to move forward."

¶ 13 Ultimately, the trial court granted the State's motion to dismiss. With respect to the ineffective-assistance-of-trial-counsel claims raised in defendant's pro se petition, the court found those issues could have been raised on direct appeal but were not and, as a result, they were "waived or forfeited."

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues the trial court erred by granting the State's motion to dismiss his postconviction petition. He contends his petition made a substantial showing that both his trial and appellate counsel provided ineffective assistance and, thus, his case should be remanded for third-stage postconviction proceedings. Alternatively, defendant argues that remand is required because he was denied the reasonable assistance of postconviction counsel where Jones (1) filed a deficient Rule 651(c) certificate and (2) failed to make necessary amendments to his pro se postconviction petition in violation of the rule. We agree with defendant's latter contention-that Jones failed to provide a reasonable level of assistance-and reverse and remand for further proceedings on that basis.

¶ 17 "The Post-Conviction Hearing Act [(Act)] provides a procedural mechanism through which criminal defendants can assert that their federal or state constitutional rights were substantially violated in their original trials or sentencing hearings." People v. Buffer, 2019 IL 122327, ¶ 12, 137 N.E.3d 763 (citing 725 ILCS 5/122-1(a) (West 2014)). It involves the following three-stage process:

"At the first stage, the circuit court determines whether the petition is 'frivolous or is patently without merit.' [Citation] If the petition is not dismissed at the first stage, it advances to the second stage, where the court may appoint counsel for an indigent defendant and the State may file responsive pleadings. [Citations.] If the petition makes a substantial showing of a constitutional violation, the petition proceeds to the third stage, where the court conducts an evidentiary hearing. [Citation.]" Id. ¶ 45 (citing 725 ILCS 5/122-2.1(a)(2), 122-4, 122-5, 122-6 (West 2014)).

¶ 18 The sixth amendment right to counsel does not extend to postconviction petitioners, and thus, they "have no constitutional right to counsel, effective or otherwise." People v. Custer, 2019 IL 123339 ¶ 30, 115 N.E.3d 374. Rather, "[p]ostconviction petitioners are entitled to only the level of assistance guaranteed by the Act," which "has been judicially deemed to be a reasonable level, a standard that is significantly lower than the one...