People v. Custer
| Decision Date | 11 March 2020 |
| Docket Number | Appeal Nos. 3-16-020,23-16-0203 |
| Citation | 146 N.E.3d 872,438 Ill.Dec. 803,2020 IL App (3d) 160202 -B |
| Parties | The PEOPLE of the State of Illinois, Respondent-Appellee, v. John Michael CUSTER, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Peter A. Carusona, and Steven Varel, of State Appellate Defender's Office, of Ottawa, for appellant.
Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, Lawrence M. Bauer, and Dawn Duffy, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 On appeal from the third-stage denial of his postconviction petition, petitioner John Michael Custer argued remand was required for a Krankel -like hearing on his unreasonable assistance of postconviction counsel claim. See People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). Initially, we agreed with petitioner and remanded the case. Thereafter, our supreme court granted the State's petition for leave to appeal, reversed our decision, and remanded the cause with directions for us to consider the issues that were mooted by our first resolution. People v. Custer , 2019 IL 123339, ––– Ill.Dec. ––––, ––– N.E.3d ––––. Accordingly, we now consider petitioner's claims that (1) the circuit court erred in denying his postconviction petition after a third-stage evidentiary hearing and (2) postconviction counsel provided unreasonable assistance.
¶ 3 In case No. 10-CF-896, the State charged petitioner with unlawful possession of a controlled substance ( 720 ILCS 570/402(c) (West 2010)). During the pretrial proceedings, petitioner retained private counsel, Clyde Hendricks. On November 14, 2011, petitioner entered an open guilty plea. Petitioner told the court that he had discussed the plea with Hendricks and Hendricks had answered all his questions. The court admonished petitioner that he could receive a sentence of 1 to 6 years' imprisonment or up to 30 months' probation. Petitioner said he understood the possible penalties. Petitioner also indicated he was entering the plea voluntarily. The court accepted petitioner's plea and continued the case for a sentencing hearing. At the time, petitioner remained free on bond.
¶ 4 In April 2012, while petitioner was awaiting sentencing, the State charged petitioner in case No. 12-CF-410 with unlawful possession of a weapon by a felon ( 720 ILCS 5/24-1.1(a) (West 2012)), aggravated assault (id. § 12-2(a)), and unlawful use of a weapon (id. § 24-1(a)(2)). Around the same time, in case No. 12-CF-246, the State also charged petitioner with aggravated battery.1
¶ 5 On May 3, 2012, case Nos. 10-CF-896 and 12-CF-410 were called for a combined hearing. Petitioner failed to appear at the hearing, and the court issued a warrant for petitioner's arrest. Petitioner was arrested on September 6, 2012.
¶ 6 On October 25, 2012, the court called case No. 10-CF-896 for a sentencing hearing. The State asked that the court impose a maximum six-year prison sentence. The State argued that petitioner had failed to appear for the first sentencing hearing and his criminal history included 5 felony convictions, 26 misdemeanor convictions, and 2 pending felony charges. Hendricks argued for a lesser sentence and emphasized that the charge was based on possession of a very small amount of cocaine, 0.3 grams. Petitioner explained in allocution that almost all his prior felony cases were derived from his 13-year relationship with Michelle Colvin.
¶ 7 The court sentenced petitioner to six years' imprisonment. The court admonished petitioner that, to challenge the sentence, he must first file within 30 days either a motion to withdraw the guilty plea or a motion to reconsider his sentence before he could file a notice of appeal. Petitioner indicated that he did not have any questions about the appeal process. The court remanded petitioner to the custody of the Illinois Department of Corrections (DOC).
¶ 8 On July 23, 2013, petitioner entered fully negotiated guilty pleas in case Nos. 12-CF-410 and 12-CF-246. In exchange for petitioner's guilty pleas, the court imposed the agreed sentence of 4½ years' imprisonment on the aggravated battery charge in case No. 12-CF-246 and a judgment of conviction on the unlawful possession of a weapon by a felon charge in case No. 12-CF-410. The court dismissed the remaining charges and admonished petitioner of his right to appeal and the prerequisite that petitioner file a motion to withdraw his guilty plea within 30 days of the sentence before filing a notice of appeal.
¶ 9 On May 27, 2014, petitioner independently filed, in case Nos. 10-CF-896 and 12-CF-410, a petition for postconviction relief. In his petition, petitioner alleged that his right to the effective assistance of counsel had been violated because Hendricks said he would appeal the court's decision in case No. 10-CF-896 but he never effectuated an appeal. Petitioner also alleged that Hendricks failed to file a motion to withdraw petitioner's guilty plea in case No. 12-CF-410 after petitioner had asked him to. The court appointed counsel and advanced the petition to the second stage of proceedings.
¶ 10 On June 4, 2015, appointed counsel, Sam Snyder, filed a supplemental petition. The supplemental petition incorporated by reference the allegations in petitioner's pro se petition and attached four supporting affidavits from petitioner.
¶ 11 In the first affidavit, petitioner averred that, after the court pronounced his sentence in case No. 10-CF-896, "Hendricks stated that he was sorry and he messed up and he would appeal." Petitioner was then taken to the bullpen area of the courtroom, where Hendricks apologized a second time and reiterated that he would appeal the sentence. After petitioner was remanded to the Peoria County Jail, he called Hendricks's office multiple times to ask that Hendricks file a motion to reconsider sentence. Following his transfer to the DOC, petitioner sent multiple letters to Hendricks asking about the status of his appeal. Petitioner received no response, and he directed his father and Colvin to call Hendricks and inquire about the status of his appeal. At a hearing on case Nos. 12-CF-246 and 12-CF-410, Hendricks told petitioner that he had not filed a notice of appeal because "it would have been a waste of time."
¶ 12 In the second affidavit, petitioner reiterated that Hendricks told him multiple times in the moments after the court imposed the sentence in case No. 10-CF-896 that he would appeal the court's ruling. During a postsentencing meeting, Hendricks told petitioner that he was going to file a notice of appeal, but he first needed to file a motion to reconsider sentence. During a telephone call to Hendricks's office, Colvin got into an argument with Hendricks. Hendricks told Colvin that he would "take care of what needed to be done & for [petitioner] not to worry." Based on Hendricks's statement to Colvin, petitioner thought that Hendricks was appealing case No. 10-CF-896. When petitioner next saw Hendricks in court, Hendricks told petitioner that an appeal in case No. 10-CF-896 was "a waste of his time."
¶ 13 The third and fourth affidavits from petitioner pertained to Hendricks's representation in case Nos. 12-CF-246 and 12-CF-410.
¶ 14 The State answered the supplemental petition with a general denial of the claims. The court advanced the petition to the third stage.
¶ 15 At the evidentiary hearing, petitioner testified that, in case No. 10-CF-896, he wanted to take the case to trial but Hendricks advised him to plead guilty. Hendricks advised petitioner that the court would impose a sentence of probation or up to three years' imprisonment. Hendricks emphasized that the court would likely sentence petitioner to a term of probation. Without this advice, petitioner would have insisted on going to trial.
¶ 16 At the time of the plea, petitioner did not comprehend the court's sentence range admonishment because he had been drinking alcoholic beverages and taking drugs. When the court imposed a maximum sentence of six years' imprisonment, petitioner was devastated. Hendricks immediately turned to petitioner and said After petitioner was relocated to the "bullpen" area of the courthouse, he told Hendricks that he "wanted to put in an appeal." At that time, Hendricks told petitioner that the State had previously offered a plea agreement with a sentence of four years' imprisonment. Petitioner was unaware of the State's prior offer, noting that he only knew that the State had offered a sentence of 5 or 5½ years' imprisonment. Petitioner became angry with Hendricks for not conveying the four-year offer sooner. Petitioner said that, if he had known of the offer before he entered the instant plea, he "probably" would have accepted it. After petitioner argued with Hendricks about the undisclosed plea offer, he again told Hendricks that he wanted to appeal his sentence. Hendricks said in reply that "he would take care of it, that this is a big mistake, and he apologized." Sometime during the week after the sentencing hearing, Hendricks told petitioner that he had to file a motion to reconsider sentence before he could file the notice of appeal. Petitioner tried, without success, to contact Hendricks regarding the status of his appeal. More than one month after the court imposed the sentence, petitioner learned that Hendricks had not filed a notice of appeal. At that time, Hendricks explained that he did not pursue an appeal because petitioner had entered a blind plea and the court had the "right to be able to sentence [petitioner] to whatever [the court] wanted."
¶ 17 In case No. 12-CF-410, one week after petitioner's plea, petitioner asked Hendricks, via letter, to file a motion to withdraw his guilty plea. Petitioner received no response from...
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People v. Knight
...that "[t]he text of Rule 651(c) does not address counsel's duties beyond the second stage of postconviction proceedings." People v. Custer , 2020 IL App (3d) 160202-B, ¶ 39 n.2, 438 Ill.Dec. 803, 146 N.E.3d 872 ; People v. Pabello , 2019 IL App (2d) 170867, ¶ 27, 438 Ill.Dec. 169, 145 N.E.3......