People v. Suarez
| Decision Date | 19 January 2007 |
| Docket Number | No. 100499.,100499. |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Edwin SUAREZ, Appellant. |
| Court | Illinois Supreme Court |
Michael J. Pelletier, Deputy Defender, Shobha L. Mahadev, Maya Szilak, Assistant Appellate Defenders, Office of the State Appellate Defender, Chicago, for appellant.
Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (James E. Fitzgerald, Annette Collins, Michele Grimaldi Stein, Joseph S. Beemsterboer, Assistant State's Attorneys, of counsel), for the People.
Following a jury trial in December 1987 before the circuit court of Cook County, defendant Edwin Suarez was convicted of first degree murder and three counts of attempt (first degree murder). The circuit court imposed a 40-year prison sentence for the murder conviction, concurrent sentences of 15 years' imprisonment on two of the three attempt (first degree murder) counts, and a 15-year sentence on the third count, to be served consecutively to the 40-year sentence. Defendant's convictions and sentences were affirmed on appeal. People v. Suarez, 238 Ill.App.3d 110, 180 Ill.Dec. 160, 606 N.E.2d 1237 (1991). In November 1993, private counsel filed a postconviction petition on defendant's behalf, alleging ineffective assistance of trial counsel. The circuit court granted the State's motion to dismiss the petition as untimely filed. This decision was affirmed by the appellate court. People v. Suarez, No. 1-94-4391, 276 Ill.App.3d 1126, 231 Ill.Dec. 736, 697 N.E.2d 17 (1995) (unpublished order under Supreme Court Rule 23).
In November 2000, defendant filed a pro se petition, in which he alleged that the statute under which he was sentenced violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The petition proceeded to second-stage review and the circuit court appointed counsel for defendant. Counsel filed a supplemental petition. That petition was dismissed on the State's motion. Counsel did not file a certificate under Supreme Court Rule 651(c) (134 Ill.2d R. 651(c)). The appellate court affirmed. No. 1-04-0696 (unpublished order under Supreme Court Rule 23). We granted defendant leave to appeal. 177 Ill.2d R. 315.
Defendant and a codefendant were tried together before separate juries. The codefendant's jury convicted him of first degree murder and acquitted him of all attempt charges. The codefendant received a 40-year prison sentence.
Defendant's 15-year consecutive sentence on one count of attempt (first degree murder) was imposed under section 5-8-4(b) of the Unified Code of Corrections (). At the time defendant committed the offenses of which he was convicted, that section prohibited the circuit court from imposing a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, the court was of the opinion that such a term is required to protect the public from further criminal conduct by the defendant. The circuit court made the necessary finding at defendant's sentencing hearing and imposed the consecutive sentence. In his petition, defendant argued that because the sentencing statute permitted the judge to make the finding, rather than a jury, the statute was unconstitutional under Apprendi and his consecutive sentence was therefore void.
The pro se petition filed by defendant in November 2000 was brought under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). The circuit court treated the petition as a postconviction petition and appointed counsel for defendant. Counsel filed a supplemental petition in September 2002. That petition realleged defendant's Apprendi claim and added a second claim, i.e., that defendant's three convictions for attempt (first degree murder) should be vacated because they were inconsistent with the acquittal of his codefendant on the same charges. The circuit court granted the State's motion to dismiss the petition. The appellate court affirmed. Defendant's only argument in the appellate court was that the cause must be remanded because postconviction counsel failed to file a certificate of compliance with Rule 651(c) and the record failed to demonstrate compliance. The appellate court concluded that the failure to comply was harmless error because defendant's postconviction claims were without merit as a matter of law. Thus, the court reasoned, no amount of reviewing the record, communicating with defendant, or amending the pro se petition would have prevented the rejection of defendant's claims.
Because the question presented in this appeal concerns the proper interpretation of a supreme court rule, our review is de novo. People v. Henderson, 217 Ill.2d 449, 458, 299 Ill.Dec. 140, 841 N.E.2d 872 (2005). In addition, when a postconviction petition is dismissed without an evidentiary hearing, the standard of review is de novo. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).
We first address the State's argument that the record in this case demonstrates that postconviction counsel fulfilled the duties mandated by Rule 651(c), despite the fact that she did not file a certificate of compliance.
There is no constitutional right to the assistance of counsel in postconviction proceedings; the right to counsel is wholly statutory (see 725 ILCS 5/122-4 (West 2000)), and petitioners are only entitled to the level of assistance provided for by the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)); People v. Turner, 187 Ill.2d 406, 410, 241 Ill.Dec. 596, 719 N.E.2d 725 (1999). The Act provides for a reasonable level of assistance. People v. Flores, 153 Ill.2d 264, 276, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992). To ensure that postconviction petitioners receive this level of assistance, Rule 651(c) imposes specific duties on postconviction counsel. The rule provides as follows:
Defendant argues the record does not demonstrate that counsel consulted with defendant to ascertain his contentions of constitutional deprivation. The State argues that by considering the supplemental petition together with counsel's obligations under Supreme Court Rule 137 (155 Ill.2d R. 137), it may be inferred that counsel fulfilled the consultation requirement of the rule. Rule 137 requires attorneys to certify that they have made "reasonable inquiry" into the basis for pleadings signed by them and provides sanctions for violation of the rule. According to the State, this duty, coupled with the fact that postconviction counsel added a new claim of inconsistent verdicts in the supplemental petition, raises a presumption that counsel did, in fact, consult with defendant. The State further asserts that the burden should be on defendant to rebut this presumption. In support, the State cites People v. Greer, 212 Ill.2d 192, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004). In Greer, the issue was whether postconviction counsel may seek to withdraw as counsel due to a petition's lack of merit. This court determined that such a procedure was permissible, noting that under Rule 137 counsel could not ethically pursue claims that were frivolous and patently without merit. Greer, 212 Ill.2d at 209, 288 Ill.Dec. 153, 817 N.E.2d 511.
As applied to the instant case, the State argues that postconviction counsel could not have fulfilled the "reasonable inquiry" requirement of Rule 137 and prepared a supplemental petition that was well grounded in fact without consulting with defendant. However, the supplemental petition simply realleged defendant's Apprendi claim in more detail and made legal arguments that were lacking in the pro se petition. In support of the new claim of inconsistent verdicts, counsel made only a general allegation that the evidence before the two juries concerning the attempted murder charges was the same. The supplemental petition based this allegation on the appellate court opinion that affirmed defendant's convictions. Nothing in the supplemental petition suggests that counsel consulted with defendant in preparing the petition. Further, Greer does not support the State's argument that a presumption of consultation should arise from the mere amendment of a pro se postconviction petition. Greer did not raise any issue of compliance with Rule 651(c), nor did it discuss that rule in conjunction with Rule 137. Accordingly, we reject the State's argument that compliance was shown in this case and that any presumption of compliance with the consultation requirement is raised by the amendment of the pro se petition or the filing of a supplemental petition.
We now turn to defendant's argument that the appellate court erred in finding that postconviction counsel's failure to comply with Rule 651(c) constituted harmless error.
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