People v. Turner

2022 IL App (2d) 210753

217 N.E.3d 397

466 Ill.Dec. 570

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

v.Antrone Jerome TURNER, Defendant-Appellant.

No. 2-21-0753

Appellate Court of Illinois, Second District.

Filed November 2, 2022

James E. Chadd, Thomas A. Lilien, and Jaime Montgomery, of State Appellate Defender's Office, of Elgin, for the appellant.

J. Hanley, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUDSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Antrone Jerome Turner, appeals from an order granting the State's motion to dismiss his amended successive petition under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)) for relief from his sentence for first degree murder ( 720 ILCS 5/9-1(a)(3) (West 1994)). Defendant argues that he did not receive reasonable assistance from postconviction counsel regarding the petition. Specifically, defendant contends that postconviction counsel performed deficiently by omitting from the amended petition a claim that defendant's sentence violated our state constitution's proportionate-penalties clause ( Ill. Const. 1970, art. I, § 11 ). We affirm.

¶ 2 I. BACKGROUND

¶ 3 Following a jury trial in the circuit court of Winnebago County, defendant was found guilty of first degree murder. Defendant committed the offense on May 7, 1994, when he was 17 years old. The trial court sentenced defendant to a 60-year prison term. On direct appeal, we affirmed defendant's conviction. People v. Turner , 289 Ill. App. 3d 1141 (1997) (table) (unpublished order under Illinois Supreme Court Rule 23 ). On April 12, 1999, defendant filed, pro se , his first postconviction petition, which the trial court summarily dismissed (see 725 ILCS 5/122-2.1(a)(2) (West 1998)). Defendant appealed, and the trial court appointed the Office of the State Appellate Defender to represent him. Counsel later moved to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). We granted the motion and affirmed the summary dismissal of defendant's petition. People v. Turner , 312 Ill. App. 3d 1219 (2000) (table) (unpublished order under Illinois Supreme Court Rule 23 ( )).

¶ 4 On July 10, 2019, defendant filed, pro se , a successive postconviction petition. He claimed that his 60-year sentence was a de facto life sentence, which, given his age at the time of the offense, violated the eighth amendment to the United States Constitution ( U.S. Const., amend. VIII ) and our state constitution's proportionate-penalties clause. Without first granting defendant leave to file the successive petition (see 725 ILCS 122-1(f) (West 2018)), the trial court docketed the petition for further proceedings (see id. § 122-2.1(b)) and appointed counsel to represent defendant (see id. § 122-4). On November 12, 2020, counsel filed an amended petition claiming that defendant's sentence was a de facto life sentence that violated the eighth amendment. However, counsel did not mention the proportionate-penalties clause. Counsel also filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The State successfully moved to dismiss the amended petition, and this appeal followed.

¶ 5 II. ANALYSIS

¶ 6 At the outset, we summarize the relevant principles governing proceedings under the Act. Our supreme court has stated as follows:

"The Act [citation] provides a remedy for incarcerated defendants who have suffered a substantial violation of their constitutional rights at trial. Under the Act, a postconviction proceeding contains three stages. At the first stage, the circuit court must independently review the postconviction petition, without input from the State, and determine whether it is ‘frivolous or is patently without merit.’ [Citation.] If the court makes this determination, the court must dismiss the petition in a written order. [Citation.] If the petition is not dismissed, the proceedings move to the second stage. [Citation.]

At the second stage, counsel is appointed to represent the defendant, if he is indigent [citation], and the State is permitted to file responsive pleadings [citation]. The circuit court must determine at this stage whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. [Citation.] If no such showing is made, the petition is dismissed. If, however, the petition sets forth a substantial showing of a constitutional violation, it is advanced to the third stage, where the circuit court conducts an evidentiary hearing [citation]."

People v. Johnson , 2018 IL 122227, ¶¶ 14-15, 429 Ill.Dec. 24, 123 N.E.3d 1083.

¶ 7 Defendant does not dispute that the amended postconviction petition failed to make a substantial showing of a constitutional violation. Rather, he blames that failure on postconviction counsel's deficient performance and asks that we provide relief by reversing the dismissal and remanding for further, second-stage proceedings.

¶ 8 The right to counsel in postconviction proceedings is statutory, not constitutional. People v. Suarez , 224 Ill. 2d 37, 42, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007). The Act entitles a defendant to reasonable assistance from counsel in a postconviction proceeding. Id. The Act "contemplates that the attorney appointed to represent an indigent petitioner will ascertain the basis of the petitioner's complaints, shape those complaints into appropriate legal form and present the prisoner's constitutional contentions to the court." People v. Johnson , 154 Ill. 2d 227, 237-38, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993). To that end, Rule 651(c) imposes specific duties on counsel in postconviction proceedings. Rule 651(c) provides, in pertinent part:

"The record filed in [the appellate court] shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

When counsel files a proper Rule 651(c) certificate, a rebuttable presumption arises that counsel provided reasonable assistance. People v. Landa , 2020 IL App (1st) 170851, ¶ 46, 457 Ill.Dec. 504, 195 N.E.3d 640. Defendant argues that postconviction counsel's failure to properly amend his pro se petition rebuts the presumption of reasonableness.

¶ 9 Before addressing that argument, we note that the State contends that, regardless of the quality of postconviction counsel's performance, we may affirm the dismissal of the petition entirely because it was barred by the general prohibition against successive postconviction petitions. Section 122-1(f) of the Act ( 725 ILCS 5/122-1(f) (West 2020)) provides:

"Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process."

To obtain leave to file a successive petition, a defendant need only make "a prima facie showing of cause and prejudice." People v. Bailey , 2017 IL 121450, ¶ 24, 421 Ill.Dec. 833, 102 N.E.3d 114.

"[L]eave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." People v. Smith , 2014 IL 115946, ¶ 35, 387 Ill.Dec. 1, 21 N.E.3d 1172.

¶ 10 The State maintains that defendant failed to establish cause and prejudice. However, we need not address that issue, because—as explained below—we conclude that defendant received from postconviction counsel the reasonable assistance required by statute. Therefore, defendant has demonstrated no grounds for reversing the dismissal of his petition.

¶ 11 Turning to the merits, defendant argues that postconviction counsel performed deficiently by abandoning a viable claim in the pro se petition that defendant's sentence violated our state constitution's proportionate-penalties clause. We note that, "where *** the presumption of reasonable assistance is present, ‘the question of whether the pro se allegations had merit is crucial to determining whether counsel acted unreasonably by not filing an amended petition.’ " People v. Gallano , 2019 IL App (1st) 160570, ¶ 30, 439 Ill.Dec. 237, 147 N.E.3d 912 (quoting People v. Profit , 2012 IL App (1st) 101307, ¶ 23, 363 Ill.Dec. 16, 974 N.E.2d 813 ). It follows that, where counsel does file an amended petition, the reasonableness of counsel's choice to omit a particular pro se claim from the amended petition likewise depends on the merits of that claim.

¶ 12 As we have recently observed:

"The proportionate-penalties clause states that a court must determine all penalties based on the ‘seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ [Citation.] To succeed on a proportionate-penalties claim,

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