People v. Pabello

• Decision Date: 09 December 2019
• Docket Number: No. 2-17-0867,2-17-0867
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin PABELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 170867

145 N.E.3d 705

438 Ill.Dec. 169

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Benjamin PABELLO, Defendant-Appellant.

No. 2-17-0867

Appellate Court of Illinois, Second District.

Opinion filed December 9, 2019

James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of State Appellate Defender's Office, of Ottawa, for appellant.

Michel G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant, Benjamin Pabello, appeals from the judgment of the circuit court of Lake County denying his postconviction petition following a third-stage hearing. Because postconviction counsel provided reasonable assistance, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was convicted in the circuit court of Lake County of two counts of predatory criminal sexual assault of a child ( 720 ILCS 5/12-14.1(a)(1) (West 2010)). We affirmed. See People v. Pabello , 2014 IL App (2d) 120927-U, 2014 WL 2999714.

¶ 4 Defendant then filed a pro se postconviction petition. The trial court advanced the petition to the second stage and appointed counsel.

¶ 5 Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Counsel certified that he consulted with defendant, examined the record, and amended the pro se petition to the extent necessary to adequately present defendant's claims.

¶ 6 Counsel also filed a supplemental postconviction petition, alleging that trial counsel was ineffective for failing to file a motion to suppress defendant's statements to the police. In that regard, counsel asserted that defendant's Miranda waiver was invalid in light of (1) defendant's lack of understanding of English and (2) defendant's lack of education. Defendant's supporting affidavit averred, among other things, that he attended school only to the fifth grade.

¶ 7 The State agreed to proceed to a third-stage hearing. The following facts were established at the hearing. According to defendant, he was born in Mexico and lived there until he was 22 years old. Spanish was the only language spoken in his home. He completed the sixth grade. Spanish was the only language used in his school.

¶ 8 Defendant moved to the United States when he was 22 years old. While here, he never formally studied English as a second language. Defendant worked mostly in landscaping, where he spoke only Spanish.

¶ 9 According to defendant, during his interrogation the officers spoke only English. Although a female officer tried to talk to him in Spanish, he did not understand her. When defendant asked for an interpreter, the officers told him that none was available.

¶ 10 On cross-examination, defendant admitted that, after he was able to learn "a little bit of English," he was hired to work at a gas station. That job included working the cash register on the night shift but did not require him to speak English. When customers would speak to him in English he would smile or pretend that he understood.

¶ 11 According to defendant, his appointed trial counsel used a Spanish interpreter every time they met. Defendant denied understanding when his counsel spoke in English.

¶ 12 Trial counsel testified for the State. According to counsel, whenever he spoke to defendant he had an interpreter present. He did so because, before he was appointed, there had been an issue about whether defendant needed an interpreter. However, during his representation of defendant, he and defendant "mainly spoke in English." The interpreter was almost never used. The only time that counsel used the interpreter was when he reviewed with defendant the presentence investigation report (PSI).

¶ 13 Trial counsel never had any language issues with defendant, and he believed that defendant was fluent in English. Nevertheless, counsel kept the communications fairly simple because of an "educational issue" with defendant. According to counsel, the PSI indicated that defendant was not well educated.

¶ 14 Trial counsel had reviewed the video recording of the interrogation, in which defendant always spoke English. According to counsel, defendant provided "details in English that went beyond simple communication." Defendant never asked for an interpreter. Because counsel believed that defendant understood the interrogation, including his Miranda rights, counsel opined that defendant's waiver was knowing and voluntary. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 15 During argument, postconviction counsel noted that defendant had attended school only to the sixth grade. Counsel further argued that, because of defendant's lack of understanding of English, defendant did not validly waive his Miranda rights.

¶ 16 The trial court issued a written order denying the postconviction petition. It found, among other things, that defendant had attended school only to the fifth grade. However, because there was no language barrier, the court ruled that the "totality of the circumstances demonstrate[d] that defendant knowingly and intelligently waived his Miranda rights." Thus, the court found that he failed to show that trial counsel was ineffective for failing to file a motion to suppress. Defendant, in turn, filed a timely notice of appeal.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant contends that his postconviction counsel failed to comply with Rule 651(c) when, at the hearing, he failed to present sufficient evidence that defendant's waiver of his Miranda rights was invalid in light of his limited education.

¶ 19 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2014)) provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated at his trial or sentencing. People v. Pitsonbarger , 205 Ill. 2d 444, 455, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002). A postconviction petition is not an appeal from an underlying judgment but, rather, a collateral attack on the judgment. People v. Ortiz , 235 Ill. 2d 319, 328, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009). As such, a postconviction proceeding allows inquiry only into constitutional issues that were not and could not have been adjudicated on direct appeal. Ortiz , 235 Ill. 2d at 328, 336 Ill.Dec. 16, 919 N.E.2d 941.

¶ 20 The Act establishes a three-stage process for the adjudication of a postconviction petition. People v. English , 2013 IL 112890, ¶ 23, 369 Ill.Dec. 744, 987 N.E.2d 371. If a petition is not summarily dismissed at the first stage, it advances to the second stage, where an indigent petitioner can obtain appointed counsel and the State can move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2014). If the defendant makes a substantial showing of a constitutional violation, the petition advances to the third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2014).

¶ 21 At the third stage, a defendant has the burden of proving a substantial constitutional violation. People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). The evidentiary hearing allows the parties to develop matters not contained in the trial record and, thus, not before the appellate court. People v. Lester , 261 Ill. App. 3d 1075, 1078, 199 Ill.Dec. 517, 634 N.E.2d 356 (1994).

¶ 22 The right to counsel in a postconviction proceeding emanates from the Act rather than the constitution. People v. Owens , 139 Ill. 2d 351, 364, 151 Ill.Dec. 522, 564 N.E.2d 1184 (1990). Thus, postconviction petitioners are guaranteed only the level of assistance that the Act provides. Owens , 139 Ill. 2d at 364, 151 Ill.Dec. 522, 564 N.E.2d 1184. That level of assistance has been determined to be only a reasonable one. People v. Flores , 153 Ill. 2d 264, 276, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992).

¶ 23 One aspect of reasonable assistance is compliance with Rule 651(c). See People v. Carter , 223 Ill. App. 3d 957, 961, 166 Ill.Dec. 877, 586 N.E.2d 835 (1992). Rule 651(c) imposes three duties on postconviction counsel. People v. Perkins , 229 Ill. 2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398 (2007). Counsel must show that he (1) consulted with the petitioner to ascertain his contentions of constitutional violations, (2) examined the trial record, and (3) made any amendments to the pro se petition necessary to adequately present the petitioner's claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 24 There are two ways in which counsel's compliance with Rule 651(c) may be shown. People v. Richmond , 188 Ill. 2d 376, 380, 242 Ill.Dec. 255, 721 N.E.2d 534 (1999). Counsel may file a certificate that he complied, or the record as a whole may demonstrate counsel's compliance. Richmond , 188 Ill. 2d at 380, 242 Ill.Dec. 255, 721 N.E.2d 534.

¶ 25 Where counsel files a Rule 651(c) certificate, there is a presumption that counsel provided reasonable assistance. People v. Custer , 2019 IL 123339, ¶ 32, ––– Ill.Dec. ––––, ––– N.E.3d ––––. If the presumption is triggered, the defendant has the burden of overcoming the presumption. People v. Profit , 2012 IL App (1st) 101307, ¶ 19, 363 Ill.Dec. 16, 974 N.E.2d 813. If counsel failed to comply with Rule 651(c), the defendant is not required to show that his claims had merit ( People v. Suarez , 224 Ill. 2d 37, 47, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007) ) or that he otherwise suffered prejudice from the lack of compliance ( People v. Nitz , 2011 IL App (2d) 100031, ¶ 18, 355 Ill.Dec. 525, 959 N.E.2d 1258). Nor is counsel's lack of compliance subject to harmless-error analysis. Suarez , 224 Ill. 2d at 52, 308 Ill.Dec. 774, 862 N.E.2d 977. Thus, if counsel failed to comply with Rule 651(c), a remand for additional postconviction proceedings is required.

Suarez , 224 Ill. 2d at 47, 308 Ill.Dec. 774, 862 N.E.2d 977.

¶ 26 The first matter we must address is whether Rule 651(c) gover...