People v. Urzua

226 N.E.3d 1182

2023 IL 127789

The PEOPLE of the State of Illinois, Appellant,

v.Ernesto URZUA, Appellee.

(Docket No. 127789)

Supreme Court of Illinois.

Filed June 15, 2023

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch, John E. Nowak, and Eric M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and David Holland, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

OPINION

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

¶ 1 Petitioner, Ernesto Urzua, challenges the second-stage dismissal of his postconviction petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The circuit court of Kane County granted appointed counsel’s motion to withdraw, and petitioner was allowed to retain successor postconviction counsel. The State then filed a motion to dismiss, which was granted by the circuit court. On appeal, petitioner argued that he did not receive effective assistance of retained postconviction counsel at the hearing on the State's motion. The appellate court agreed, reversing and remanding for further proceedings. 2021 IL App (2d) 200231, ¶ 92, 451 lll.Dec. 939, 184 N.E.3d 526. For the following reasons, we affirm in part and reverse in part the judgment of the appellate court.

¶ 2 I. BACKGROUND

¶ 3 The appellate court’s opinion below sets forth a thorough and comprehensive account of the factual history of this case, and we need not repeat the entirety of the facts here. 2021 IL App (2d) 200231, 451 Ill.Dec. 939, 184 N.E.3d 526. Instead, we set forth only a brief summary of the relevant facts and only as necessary to frame the specific issues presented in this appeal.

¶ 4 A. Conviction and Appeal

¶ 5 On March 13, 2008, defendant was found guilty of attempted murder committed on March 1, 2002 (720 ILCS 5/8-4(a), 9- 1(a) (West 2006)), and he was subject to a 25-year enhancement pursuant to section 8-4(c)(1)(D) of the Criminal Code of 1961. Id. § 8-4(c)(1)(D). He moved for a new trial, which was denied. Defendant was sentenced to 48 years’ imprisonment. On direct appeal, defendant challenged the sufficiency of the State’s evidence. The appellate court rejected his contention and affirmed his conviction. People v. Urzua, 395 Ill. App. 3d 1127, 369 Ill.Dec. 497, 986 N.E.2d 810 (2010) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 6 B. Postconviction Proceedings

¶ 7 On July 13, 2010, petitioner filed a pro se postconviction petition, in which he alleged that (1) his trial counsel was ineffective for failing to preserve the argument that he was entitled to impeach the victim with prior convictions for aggravated criminal sexual abuse and reckless discharge of a firearm, (2) his trial counsel was ineffective for failing to object to the State’s use of the word "cowardly" during its opening statement, (3) his appellate counsel was ineffective, (4) his sentence violated the proportionate penalties clause of the Illinois Constitution, and (5) he had newly discovered evidence of actual innocence. In support of his actual-innocence claim, petitioner attached the "affidavit" of Markus Spires, who stated that someone other than petitioner was responsible for the murder. The "affidavit" was not notarized; rather, it was signed by Spires, on April 4, 2010, "under the penalty of perjury." Defendant asserted he was entitled to a new trial because the "affidavit" was new, material, noncumulative, and of such conclusive character it would likely change the result on retrial, because the "affidavit" concerned a witness for the State, Jamaal Garcia, who testified at trial against defendant.

¶ 8 Spires’s "affidavit" indicated that in March 2002 (though he did not remember the actual date), he was driving on Claim Street when he "came upon" his friend, Garcia, who was wearing a black hooded sweatshirt and was "running really fast as if he were trying to get away from some-one/something/or somewhere, from the direction of Columbia [Street]." Spires further averred that he quickly pulled over as Garcia flagged Spires down and Garcia entered his car. As Garcia entered his car, he noticed Garcia was carrying and holding a chrome revolver. Spires asked Garcia "what was *** going on," and Garcia told him he had just shot an " ‘Insane Deuce’ over on Columbia [S]treet." Further, Spires stated, "I for some reason didn’t think to have [Garcia] get out while he still brandished the gun or to know anything further for I truly did not want any part of the trouble that was sure to follow." Spires drove Garcia a few blocks, at which time Garcia threw the revolver from the window and then asked to be let out of Spires’s car. Spires averred that he wanted the court to know that he was giving the statement of his own free will, free from influence from threats or promises, and because it was "the right thing to do after learning [defendant] was charged" for the shooting. The "affidavit" was not notarized; rather, it was signed by Spires, on April 4, 2010, "under penalty of perjury" pursuant to section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2010)).

¶ 9 Without a first-stage ruling, in December 2010, the circuit court advanced the petition to second-stage proceedings under the Act and appointed an attorney to represent petitioner. Due to a conflict of interest within the public defender’s office, private attorney Ronald Haskell was appointed to represent petitioner, After sev- eral delays in receiving transcripts, in August 2015, Haskell (appointed counsel) told the court he had reviewed the transcripts and was now in a position to file an amended petition within the next 30 days.

¶ 10 At subsequent status hearings, appointed counsel told the court he still "need[ed] to contact an individual" he had been unable to find and needed his investigator "to check a couple things out." However, he did not file an amended petition; rather, in August 2016, he filed a motion for leave to withdraw under the procedures set forth in People v. Greer, 212 Ill. 2d 192, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004).

¶ 11 Appointed counsel filed a supporting memorandum, asserting he could not ethically proceed with the petition, and also certified under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) that he had (1) reviewed the common-law record and report of proceedings submitted to the appellate court in petitioner’s direct appeal, the presentence investigation report, petitioner’s briefs, and the disposition of petitioner’s direct appeal; (2) consulted with petitioner, both in writing and in person, in a manner "sufficient to fully understand [petitioner’s] issues and intent"; (3) read petitioner’s pro se petition; and (4) determined the pro se petition raised no issues of merit. Specifically, appointed counsel argued that petitioner’s pro se claim that his sentence violated the proportionate penalties clause was forfeited because it was not raised in the appellate court and the sentence was within the court’s discretion. As to petitioner’s claim of actual innocence, he argued that he could not substantiate the existence of Markus Spires and, even if taken as true, the statement would not have changed the result of the trial.

¶ 12 C. Circuit Court Proceedings

¶ 13 On February 27, 2017, with no objection from the State, the circuit court granted appointed counsel’s motion to withdraw and simultaneously granted petitioner’s request for a continuance to retain counsel. At the hearing, the court engaged in the following colloquy:

"THE COURT: [A]ll right. So have you had a chance to speak with [petitioner]?

[APPOINTED COUNSEL]: Yes, I have, your Honor. I explained it to him in letters and I tried to explain to him the full support of my memorandum of law and my motion to withdraw and the fact that I cannot find any constitutional violations that would warrant proceeding further or adopting his [pro se] allegations and, therefore, it is incumbent upon me to withdraw from the case.

THE COURT: Okay. So [petitioner], do you understand what your counsel has been explaining?

THE PETITIONER: Yes.

THE COURT: And so he has presented a motion to withdraw as your attorney and what would you like to say regarding that?

THE PETITIONER: I want to hire a private attorney.

THE COURT: Okay.

THE PETITIONER: If I can ask for some time to hire a private attorney, my family is wanting to help me apply for an attorney.

THE COURT: All right. So I am gonna [sic] grant Mr. Haskell’s motion and allow him to withdraw as your attorney.

***

THE COURT: Given the situation and the need to hire private counsel, I will give you the six months because I assume your family is going to have to come together to finance that for you."

¶ 14 On March 7, 2017, 18 days later, the State filed a motion to reconsider the court’s ruling granting petitioner an extension of time to obtain new counsel, asserting that, because appointed counsel’s motion was pursuant to Greer and he had filed a Rule 651(c) certificate, petitioner should not have been permitted the further aid of counsel. On March 21, 2017, the State also filed a motion to dismiss contending that petitioner was not entitled to new counsel once his original appointed attorney was granted leave to withdraw under Greer. The State also argued that petitioner’s actual innocence claim should be dismissed, as Spires’s affidavit was not notarized and the proportionate penalties claim was meritless.

¶ 15 On April 12, 2017, at the hearing on the State’s motion to reconsider, the court noted that, at the time it granted appointed counsel’s motion for leave to withdraw, petitioner indicated that he would hire new counsel and the State had not yet filed a responsive pleading. Accordingly, the court concluded that petitioner was entitled to...