People v. Cotto
| Decision Date | 19 May 2016 |
| Docket Number | No. 119006.,119006. |
| Citation | 51 N.E.3d 802,402 Ill.Dec. 50 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Jesus COTTO, Appellant. |
| Court | Illinois Supreme Court |
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg and Patricia Mysza, Deputy Defenders, and S. Emily Hartman, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Jesus Cotto, appellant pro se, on petition for rehearing.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and Joseph A. Alexander, Assistant State's Attorneys, of counsel), for the People.
delivered the judgment of the court, with opinion.
¶ 1 This appeal asks this court to decide if every postconviction petitioner represented by counsel is entitled to a reasonable level of assistance from counsel after first-stage proceedings, regardless of whether counsel was appointed or privately retained. The appellate court is split on the issue. Compare People v. Csaszar, 2013 IL App (1st) 100467, ¶ 25, 377 Ill.Dec. 519, 2 N.E.3d 435
(), with People v. Anguiano, 2013 IL App (1st) 113458, ¶ 31, 378 Ill.Dec. 600, 4 N.E.3d 483 ().
¶ 2 The circuit court granted the State's motion to dismiss defendant's postconviction petition, and a divided appellate court affirmed. 2015 IL App (1st) 123489, ¶ 13, 389 Ill.Dec. 743, 27 N.E.3d 235
. For the reasons that follow, we conclude that the reasonable level of assistance standard applies to both retained and appointed postconviction counsel. We reject the appellate court's contrary conclusion but affirm its judgment on an alternative basis.
¶ 4 Following a bench trial in 2008, defendant was found guilty of armed robbery. Based on defendant's prior felony convictions, the Cook County circuit court sentenced him as a habitual criminal to natural life imprisonment.
¶ 5 At defendant's trial, the State presented the testimony of 14–year–old Guadalupe Cardenas and 14–year–old Kelvyn Negron. On May 7, 2008, Cardenas, Negron, and Cardenas's younger sister were walking home from school when defendant exited an alley and approached them. Defendant grabbed Negron in a “choke hold” and demanded his personal belongings. As defendant and Negron struggled, Cardenas attempted to pull Negron away from defendant. Defendant threatened Cardenas with a gun from his sleeve. Defendant ripped two gold chains off Negron's neck and then ran to a nearby parked car. Cardenas memorized the license plate of defendant's vehicle and provided police with that information.
¶ 6 Ultimately, defendant was apprehended by police officers based on the victims' descriptions of their assailant and his vehicle. Cardenas and Negron identified defendant from a police lineup. Defendant confessed to taking the gold chains from Negron but denied possessing a gun during the robbery. Instead, defendant claimed he had a piece of black rubber tubing inside his sleeve.
¶ 7 The trial court found defendant guilty of armed robbery. Based on defendant's prior Class X felony convictions for armed robbery and aggravated vehicular hijacking with a weapon, he was sentenced as a habitual criminal to natural life imprisonment. On direct review, the appellate court affirmed defendant's conviction and sentence.
People v. Cotto, No. 1–08–3031, 391 Ill.App.3d 1116, 367 Ill.Dec. 837, 982 N.E.2d 987 (June 3, 2009)
(unpublished order under Supreme Court Rule 23 ).
¶ 8 On September 28, 2011, defendant, through privately retained counsel, filed a postconviction petition. That petition is the subject of the instant appeal.
¶ 9 In the postconviction petition, defendant claimed he was denied his due process rights when the trial court failed to explain his right to substitution of judge. Defendant also raised numerous claims of ineffective assistance of trial and appellate counsel. Specifically, defendant alleged that his trial counsel was ineffective for failing to: (1) discuss the case and defendant's criminal background with him and his family members; (2) conduct an independent investigation into the underlying criminal incident; (3) adequately prepare defendant for trial; (4) speak to other witnesses; (5) challenge the reliability of the victims' identification of defendant; (6) present expert testimony on gun-barrel diameters to challenge the veracity of the victims' testimony that defendant possessed a gun; (7) request a hearing on natural-life sentencing; and (8) properly prepare defendant for the sentencing hearing, including obtaining mitigation material. Defendant also alleged trial counsel was ineffective for soliciting details of defendant's criminal background from him during his direct testimony and asking defendant to “basically lie about having a rubber tube.”
¶ 10 Defendant's postconviction petition further alleged that his trial and appellate counsel were ineffective for (1) “failing to notice, argue, preserve, and raise the procedural error issue of not receiving adequate notice of [the] government's request for natural life” and (2) failing to provide defendant with notice of the appellate court's decision within 30 days to preserve his right to appeal.
¶ 11 In support of his petition, defendant attached more than 100 pages of court transcripts from his trial and various pretrial and posttrial hearings. Defendant also attached affidavits from his brother and mother, who averred that defendant's counsel failed to communicate with them throughout trial and appeal and failed to inform them about defendant's conviction and the appellate court's decision until more than 30 days had lapsed. Lastly, defendant attached his own affidavit corroborating the allegations in his petition and a copy of an envelope from his counsel addressed to defendant's mother, postmarked September 4, 2009.
¶ 12 The trial court advanced defendant's petition to second-stage proceedings. On March 30, 2012, the State filed a motion to dismiss the petition. The State argued that the petition was not timely filed and that defendant failed to allege the untimely filing was not due to his culpable negligence. The State also argued that defendant's substantive claims were barred by res judicata and waiver and consisted primarily of unsupported, conclusory allegations. The State further asserted that none of defendant's claims made a substantial showing of a constitutional violation and, therefore, defendant was not entitled to an evidentiary hearing.
¶ 13 On August 17, 2012, defendant's postconviction counsel filed a response to the State's motion, arguing that the petition was untimely filed because trial counsel failed to inform defendant about the appellate court's June 3, 2009, decision. In support, defendant alleged that the attached envelope, addressed to his mother and postmarked September 4, 2009, proved that the notice of appeal was mailed to his mother and not to defendant. Accordingly, defendant alleged that the “petition establishes clear facts that suggest the delay was not due to defendant's culpable negligence.”
¶ 14 On November 2, 2012, the circuit court held a hearing on defendant's petition, and the parties presented extensive arguments on the substantive claims in the petition. Following arguments, the court allowed the State's motion to dismiss defendant's petition. The court found that the record did not substantiate defendant's claim that his trial counsel suborned perjury. The court also found that “[t]he decisions made by [trial counsel] in the course of the trial appear to have been within that range of [a] lawyer's decisions and judgments which * * * certainly do not rise to the level of deprivation of a constitutional right under the Sixth Amendment.” The court determined it was clear from the record that defendant was apprised of his eligibility for a natural life sentence. Relevant to the issue in this appeal, the trial court did not reference the timeliness of defendant's petition or otherwise indicate that the dismissal was based on the petition's untimely filing.
¶ 15 On appeal, defendant argued solely that his privately retained postconviction counsel did not provide him with the requisite “reasonable level of assistance” during the second-stage proceedings because counsel failed to contest the State's assertion that defendant's petition was untimely based on his culpable negligence. A majority of the appellate court rejected defendant's argument and affirmed the circuit court's dismissal of his postconviction petition. 2015 IL App (1st) 123489, ¶ 13, 389 Ill.Dec. 743, 27 N.E.3d 235
.
, the appellate court majority concluded that defendant's claim failed because only pro se petitioners are entitled to a reasonable level of assistance in postconviction proceedings and defendant hired private counsel to file his postconviction petition. 2015 IL App (1st) 123489, ¶ 10, 389 Ill.Dec. 743, 27 N.E.3d 235. Citing Csaszar, the majority explained that “although a pro se defendant had a right to reasonable assistance from appointed counsel, neither the Act nor case law supported the claim that the State was required to provide reasonable assistance of counsel for any petitioner able to hire his own postconviction counsel.” 2015 IL App (1st) 123489, ¶ 10, 389 Ill.Dec. 743, 27 N.E.3d 235 (citing Csaszar, 2013 IL App (1st) 100467, ¶¶ 18, 25, 377 Ill.Dec. 519, 2 N.E.3d 435 ).
¶ 17 The appellate majority acknowledged the contrary conclusion reached in People v. Anguiano, 2013 IL App (1st) 113458, 378 Ill.Dec. 600, 4 N.E.3d 483
, a decision that determined the Post–Conviction Hearing Act requires a reasonable level of assistance from all postconviction counsel, appointed and privately...
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