People v. Blanchard

• Decision Date: 13 October 2015
• Docket Number: No. 1–13–2281.,1–13–2281.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Antonio BLANCHARD, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

43 N.E.3d 1077

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Antonio BLANCHARD, Defendant–Appellant.

No. 1–13–2281.

Appellate Court of Illinois, First District, Second Division.

Oct. 13, 2015.

Michael J. Pelletier and Jonathan Krieger, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michele Grimaldi Stein, and Heather Fahrenkrog, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice PIERCE

delivered the judgment of the court, with opinion.

¶ 1 Defendant Antonio Blanchard, who had been convicted of armed robbery and sentenced to 40 years in prison, appeals the trial court's dismissal, on motion of the State, of his petition for postconviction relief. On appeal, defendant contends that his appointed postconviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c)

(eff. Dec. 1, 1984) by failing to review trial exhibits that contained evidence he asserts was crucial to his pro se claims. For relief, defendant requests remand for compliance with Rule 651(c). Defendant further contends that he should receive $5–per–day presentence custody credit against the $50 Court System assessment.

¶ 2 Appellate Background

¶ 3 On August 4, 2015, we issued a Rule 23 (Ill. S.Ct. R. 23

(eff. July 1, 2011)) order rejecting defendant's argument that postconviction counsel failed to comply with the requirements of Rule 651(c) where her certificates stated she examined the common law record and trial transcripts. We also ordered the clerk of the circuit court to modify the fines and fees order to reflect a credit of $50. Defendant filed a timely petition for rehearing contending our decision regarding postconviction counsel's compliance with Rule 651(c) was in error. By order dated August 27, 2015, we withdrew our Rule 23 order and granted the State leave to respond to the petition for rehearing. On September 10, 2015 the State filed its response and defendant thereafter filed a reply. After consideration of the parties filings on rehearing, and for reasons hereafter stated, we grant defendant's petition for rehearing, vacate the order dismissing defendant's pro se petition and remand for postconviction counsel to comply with Rule 651(c). We direct the circuit court, after compliance with Rule 651(c), to reconsider defendant's postconviction petition. Further, we order modification of the fines and fees order.

¶ 4 Background

¶ 5 The facts underlying defendant's conviction are set forth in our decision on direct appeal and will be repeated here only as necessary. People v. Blanchard, No. 1–09–0753, 405 Ill.App.3d 1195, 375 Ill.Dec. 696, 997 N.E.2d 1007 (2010)

(unpublished order under Supreme Court Rule 23 ). In brief, Michael Malachowsi testified at trial that on February 7, 2008, at about 6:30 a.m., defendant approached him, showed him a gun, and demanded his wallet. The victim complied, ran from the scene, and then called the police. Chicago police officer Hector Agosto testified that upon defendant's arrest shortly thereafter, he performed a custodial search and recovered a “credit card or debit bank card” from defendant's pants pocket. The card, which was later determined to be a credit card, belonged to the victim. Later that afternoon, the victim identified defendant in a lineup. Among the exhibits introduced by the State at trial were a photograph of the lineup, a photograph of defendant alone taken the same day as the lineup, and the victim's credit card.

¶ 6 On direct appeal, defendant contended that the evidence was insufficient to convict, that a 15–year firearm sentencing enhancement was improperly applied, that the trial court failed to conduct an adequate inquiry into his posttrial claim of ineffective assistance of counsel and failed to appoint new counsel pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984)

, and that presentence incarceration credit must be applied toward the $30 Children's Advocacy Center fine imposed by the trial court. We affirmed defendant's conviction and sentence and ordered modification of his fines. People v. Blanchard, No. 1–09–0753, 405 Ill.App.3d 1195, 375 Ill.Dec. 696, 997 N.E.2d 1007 (2010) (unpublished order under Supreme Court Rule 23 ).

¶ 7 In December 2011, defendant filed a pro se postconviction petition, raising claims that trial counsel was ineffective for not raising lack of probable cause to arrest, not challenging the lineup identifications as suggestive where defendant had visible cuts and bruises on his forehead and neck, and not challenging the physical evidence; that a detective perjured himself at trial; that the State introduced false evidence as to the credit card allegedly taken from the victim; that the trial court erred in allowing the prosecutor and defense attorney to make improper arguments during the inquiry into defendant's claims against trial counsel; and that he is actually innocent. Defendant attached to his petition portions of trial transcripts, selections from police reports, a photocopy of a lineup photograph, and letters to him from his appellate counsel.

¶ 8 The trial court docketed defendant's petition and appointed the Office of the Cook County Public Defender. At the next appearance, postconviction counsel informed the court that she had read the appellate briefs and mandates and had ordered the common law records, report of proceedings, and trial file. About four months later, in August 2012, counsel wrote defendant a letter informing him that she would not be amending his petition to substantiate his claims. Among other things, counsel mentioned in the letter that DNA and fingerprint testing on the victim's credit card was “not legally viable because the card was returned to [the victim], and has been in his possession for the last four years.” The next day, counsel filed a Rule 651(c)

certificate, indicating that she had consulted with defendant by letter and phone on numerous occasions to ascertain his contentions of deprivations of constitutional rights; had obtained and examined the transcripts and common law record, the appellate briefs, and the order issued on direct appeal; and had examined defendant's petition and investigated his claims, including his claim of actual innocence. Counsel indicated that the petition adequately presented defendant's claims of deprivations of constitutional rights and that therefore, she had concluded it was unnecessary to make any amendments to the petition.

¶ 9 In September 2012, counsel filed a supplemental postconviction petition, arguing that the firearm sentencing add-on violated the proportionate penalties clause and cited new law in support of the claim. Along with the petition, counsel filed a new Rule 651(c)

certificate, again indicating that she had consulted with defendant by letter and phone on numerous occasions to ascertain his contentions of deprivations of constitutional rights; had obtained and examined the transcripts and common law record, the appellate briefs, and the order issued on direct appeal; and had examined defendant's petition and investigated his claims, including his claim of actual innocence. Counsel related that she was unable to supplement defendant's claims of actual innocence and police perjury, but had supplemented his pro se claims with the challenge to the firearm sentencing add-on. Counsel stated that the original petition together with the supplemental petition adequately presented all of defendant's contentions of substantial deprivations of constitutional rights.

¶ 10 In October 2012, defendant filed a pro se motion for leave to amend his postconviction petition. Among other issues, defendant argued that there were problems with the chain of custody of the victim's credit card. Specifically, defendant argued that reports from evidence technicians investigating the case did not indicate that such a card was recovered on the day of the crime. Defendant also noted that while counsel had written to him that the card was returned to the victim, the card had actually been submitted as an exhibit at trial.

¶ 11 The State filed a motion to dismiss defendant's petition and supplemental petition. Following a hearing, the trial court granted the State's motion.

¶ 12 On appeal, defendant contends that postconviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c)

(eff. Dec. 1, 1984) because she failed to review the trial exhibits, which he asserts contained evidence crucial to his pro se claims. Defendant argues that three of his postconviction claims turned on evidence introduced in the exhibits at trial: (1) he asserts that his claim of ineffective assistance of trial counsel for failing to challenge a suggestive lineup required examination of a lineup photo that depicts injuries to his forehead and neck; (2) he argues that his claim that the State used falsified evidence when it presented testimony that the victim's debit or credit card was recovered from defendant's pocket could only be resolved by physical examination of the card; and (3) he maintains that examination of that card was also crucial to his claim of actual innocence. Defendant concludes that because postconviction counsel failed to examine the exhibits, remand for compliance with Rule 651(c) is required.

¶ 13 Analysis

¶ 14 Under the Post–Conviction Hearing Act (725 ILCS 5/122–1 et seq.

(West 2010)), petitioners are entitled to a “reasonable” level of assistance of counsel. People v. Perkins, 229 Ill.2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398 (2007). To ensure this level of assistance, Rule 651(c) imposes three duties on appointed postconviction counsel. Id. Pursuant to the rule, either the record or a certificate filed by the attorney must show that counsel: (1) consulted with the petitioner to ascertain his contentions of constitutional deprivations; (2) examined the record of the trial proceedings; and (3) made...