Opinion
4-21-0582
08-26-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AVION T. SMITH, Defendant-Appellant.
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 Vermilion County No. 14CF186 Honorable Derek J. Girton, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: By neglecting to make a routine amendment to the postconviction petition by pleading that appellate counsel rendered ineffective assistance on direct appeal, the appointed postconviction counsel left a duty in Illinois Supreme Court Rule 651(c) (July 1, 2017) unperformed, namely, the duty of "ma[king] any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions."
¶ 2 A Vermilion County jury found defendant, Avion T. Smith, guilty of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) and aggravated discharge of a firearm (id. § 24-1.2(a)(2)), for which he is serving a sentence of 20 years' imprisonment. His direct appeal was unsuccessful. See People v. Smith, 2020 IL App (4th) 180492-U. Later, through appointed counsel, defendant filed a second amended petition for postconviction relief, which raised, among other claims, a claim of actual innocence. The circuit court granted a motion by the State to dismiss the second amended petition on the ground that it failed to plead a substantial violation of defendant's constitutional rights. Defendant now appeals from the granting of the State's motion for dismissal.
¶ 3 One of defendant's arguments in this appeal is that postconviction counsel failed to substantially comply with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), specifically the part of Rule 651(c) requiring counsel to "ma[k]e any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." In our de novo review, we find a lack of substantial compliance with Rule 651(c) in that respect. Such a finding halts us at the threshold of this appeal, preventing us from considering any other issue. Until the record shows substantial compliance with Rule 651(c), the merits of the appeal are not reachable. Therefore, we reverse the judgment, and we remand this case with directions to allow defendant the opportunity to replead his postconviction petition with the assistance of new counsel.
¶ 4 I. BACKGROUND
¶ 5 In count IV of the second amended petition, a count titled "Due Process Violation," postconviction counsel raised nine reputed errors, which, according to the petition, "separately and cumulatively operated to deprive" defendant of his right to a "fair trial."
¶ 6 First, the circuit court denied a motion in limine by the defense. In that motion, the defense sought a ruling that it was entitled to impeach the victim, Jameil Smith, with his parole status and to impeach another witness, Hannibal Johnson, with his being on court supervision for theft. The denial of the motion in limine, in defendant's view, violated his constitutional right to confront adverse witnesses.
¶ 7 Second, over defense counsel's objection, the circuit court allowed Mary Cooke to testify to what others were doing while she was sleeping. In other words, the court allowed speculative testimony.
¶ 8 Third, the circuit court overruled defense counsel's objection when the prosecutor asked Smith leading questions about the illumination from streetlights, even though Smith previously testified he was shot in the daytime.
¶ 9 Fourth, the circuit court overruled defense counsel's objection when the State allowed a witness to refresh his recollection from a police report that the State did not disclose until the middle of the trial. Thus, defendant complained of a "discovery violation."
¶ 10 Fifth, the circuit court allowed impeaching testimony by Detective Scott Damilano to be used as substantive evidence.
¶ 11 Sixth, the circuit court refused a jury instruction tendered by the defense, namely, Illinois Pattern Jury Instructions, Criminal, No. 3.15 (approved Oct. 17, 2014), titled "Circumstances of Identification."
¶ 12 Seventh, the circuit court overruled defense counsel's objection to the State's closing argument when the prosecutor referenced a hearsay statement by Damilano about who shot Smith.
¶ 13 Eighth, the circuit court overruled defense counsel's objection when the prosecutor remarked, in his closing argument, that "[t]here's no self-defense."
¶ 14 Ninth, photographs of Smith's gunshot wounds, admitted in evidence, were inflammatory.
¶ 15 In its motion for dismissal, the State argued that the claims in count IV were "waived" because the record enabled defendant to raise the claims on direct appeal and he did not do so. The circuit court agreed with the State. The court ruled, "[T]here is a waiver of claims if they are not brought up on direct appeal. Those are all claims that could have been discussed by [defendant] *** and his appellate counsel and raised at that time."
¶ 16 II. ANALYSIS
¶ 17 In an appeal from a ruling granting the State's motion to dismiss a petition for postconviction relief, compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) is a threshold issue. See People v. Suarez, 224 Ill.2d 37, 51 (2007); People v. Turner, 187 Ill.2d 406, 416 (1999); People v. Urza, 2021 IL App (2d) 200231, ¶ 90. Rule 651(c) requires appointed postconviction counsel to "ma[k]e 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). In this case, postconviction counsel certified he had made such necessary amendments. Defendant argues the certification was false in that the second amended petition lacked a claim that he received ineffective assistance on direct appeal-a claim necessary to avert the procedural forfeiture of the claims in count IV of the second amended petition.
¶ 18 In its motion for dismissal, the State argued that the claims in count IV were "waived" because in People v. Munson, 206 Ill.2d 104, 115 (2002), the supreme court held, "[I]ssues that could have been presented on direct appeal, but were not, are considered waived" (or, more precisely, forfeited (see People v. Blair, 215 Ill.2d 427, 443-44 (2005)). The circuit court agreed with the State-and the State and the court were right. The claims in count IV could have been raised on direct appeal. That is, the original appellate record afforded the means of raising those claims. See People v. English, 2013 IL 112890, ¶ 22; People v. Youngblood, 389 Ill.App.3d 209, 215 (2009). Nevertheless, the claims in count IV were not raised on direct appeal. Therefore, under Munson, those claims were forfeited. Munson, 206 Ill.2d at 115.
¶ 19 Forfeiture was not the only problem with the claims in count IV. Most of them were not even colorable constitutional claims but, rather, were alleged garden-variety trial errors packaged as due-process violations. "Postconviction relief is limited to constitutional deprivations that occurred during the original trial." (Emphasis added.) People v. House, 2021 IL 125124, ¶ 15. "Erroneous evidentiary rulings are not ordinarily considered constitutional errors even though they can adversely affect a defendant's right to receive a fair trial." People v. Carr, 2021 IL App (5th) 180387-U, ¶ 50. In an "appeal as of right," however, ineffective assistance of appellate counsel- such as by the unreasonable and prejudicial failure to raise nonconstitutional issues-is a constitutional violation. People v. Robinson, 217 Ill.2d 43, 61 (2005).
¶ 20 To avoid the procedural forfeiture and to bring the claims in count IV within the scope of the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)), all postconviction counsel had to do was plead, in the second amended petition, that counsel on direct appeal rendered ineffective assistance by failing to raise those claims. See English, 2013 IL 112890, ¶ 22 (holding that "the doctrines of res judicata and forfeiture are relaxed where fundamental fairness so requires, where the forfeiture stems from the ineffective assistance of appellate counsel, or where the facts relating to the issue do not appear on the face of the original appellate record" (emphasis added)). To avert a forfeiture of the claims in count IV and to make those claims relevant to a postconviction proceeding, it was "necessary" to amend the second amended petition so as to allege ineffective assistance of appellate counsel. Ill. S.Ct. R. 651(c) (eff. July 1, 2017); see also People v. Leon, 2022 IL App (1st) 191367-U, ¶ 50 (holding that, "[p]ursuant to *** [R]ule [651(c)], 'necessary' amendments include 'routine' amendments that avoid specific bases for dismissal such as ineffective assistance of appellate counsel for failure to raise a claim on direct appeal" (citing Turner, 187 Ill.2d at 414)). Contrary to the Rule 651(c) certificate, that important amendment was never made. Therefore, we conclude, de novo, that the presumption of reasonable assistance raised by the Rule 651(c) certificate is rebutted by the record. See People v. Russell, 2016 IL App (3d) 140386, ¶ 10.
¶ 21 The State would dispute such a conclusion because, to quote from the State's brief, "[p]ostconviction counsel is required to reshape the claims contained in pro se petitions to put them into the appropriate legal form; Rule 651(c) did not provide that postconviction counsel is required to formulate new claims." See People v. Vasquez, 356 Ill.App.3d 420, 424-25 (2005). The claims in count IV of the second amended petition were not in the pro se petition that defendant filed earlier.
¶ 22 To be sure, as the supreme court observed in People v. Pendleton, 223 Ill.2d 458, 472 (2006), "[p]ost-conviction counsel is only required to investigate and properly present the petitioner's claims." (Internal quotation marks omitted and emphasis in original.) But the claims in count IV of the second amended petition were defendant's (or petitioner's) claims-they were his claims just by virtue of being in the second amended petition. Postconviction counsel, who wrote and filed the second amended petition, was defendant's attorney of record and, as such, spoke for defendant. "A defendant speaks and acts through his attorney." People v. Steiger, 208 Ill.App.3d 979, 981 (1991).
¶ 23 It follows, then, that the claims in count IV were defendant's claims. By failing to recast those claims as claims of ineffective assistance by appellate counsel, postconviction counsel left partly unperformed his duty of "ma[king] 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). The remedy that case law prescribes is clear. "The judgment dismissing [defendant's] postconviction petition should be reversed and the cause remanded to the circuit court with directions to allow [defendant] the opportunity to replead his postconviction petition with the assistance of new counsel." Russell, 2016 IL App (3d) 140386, ¶ 12.
¶ 24 III. CONCLUSION
¶ 25 We reverse the circuit court's judgment, and we remand this case with directions to allow defendant the opportunity to replead his postconviction petition with the assistance of new counsel.
¶ 26 Reversed and remanded with directions.