People v. Vasquez, 2-03-0042.

• Decision Date: 28 January 2005
• Docket Number: No. 2-03-0042.,2-03-0042.
• Citation: 291 Ill.Dec. 821,824 N.E.2d 1071,356 Ill. App.3d 420
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Otoniel VASQUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

824 N.E.2d 1071

356 Ill. App.3d 420

291 Ill.Dec. 821

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Otoniel VASQUEZ, Defendant-Appellant.

No. 2-03-0042.

Appellate Court of Illinois, Second District.

January 28, 2005.

Rehearing Denied April 8, 2005.

G. Joseph Weller, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, Charles M. Schiedel, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Springfield, Kim Robert Fawcett (Court-appointed), Office of the State Appellate Defender, Chicago, for Otoniel Vasquez.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice HUTCHINSON delivered the opinion of the court:

Defendant, Otoniel Vasquez, appeals from the order of the circuit court of Lake County dismissing his petition for relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2002)). Defendant contends that postconviction counsel rendered unreasonable assistance by failing to amend defendant's pro se petition for postconviction relief. Defendant further argues that postconviction counsel should have added a claim that trial counsel rendered ineffective assistance as a result of her failure to move to suppress defendant's confession based upon a violation of the Vienna Convention on Consular Relations, opened for signature April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261 (Vienna Convention). We affirm.

In 1999, following a jury trial, defendant was found guilty of committing the offense of aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1998)). The trial court sentenced defendant to 24 years' imprisonment. On direct appeal, defendant's appellate counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the Anders motion appellate counsel identified two potential issues: the sufficiency of the evidence, and the excessiveness of defendant's sentence. In response, defendant raised four additional issues for review: (1) the State made improper comments in its opening statement; (2) the trial court erred in admitting an expert's testimony; (3) the trial court erred in admitting defendant's confession without the proper foundation; and (4) defendant's trial counsel was ineffective in failing to move to suppress his confession.

This court granted appellate counsel's motion to withdraw, rejecting all of the aforesaid arguments and affirming the trial court's judgment. See People v. Vaszquez, No. 2-99-1465, 326 Ill.App.3d 1173, 285 Ill.Dec. 308, 811 N.E.2d 795 (2002) (unpublished order under Supreme Court Rule 23).

Defendant filed a pro se postconviction petition alleging that: (1) his statement to the police was taken in violation of his fifth amendment right and should have been suppressed; (2) the failure of the Waukegan police department to have counsel present during his interrogation was in violation of his sixth amendment right; and (3) his trial counsel's failure to file a motion to suppress his statement was in violation of his sixth amendment right to effective assistance of counsel. In support of defendant's argument that trial counsel should have filed a motion to suppress his statements, defendant argued: "[C]ompetent counsel clearly would be expected to discern that the petitioner was forced into giving his statement to the police. * * * [T]he petitioner specifically informed defense counsel that the police had effected his statement by threat (force)." Defendant's court-appointed postconviction counsel declined to amend the petition and filed a Supreme Court Rule 651(c) (134 Ill.2d R. 651(c)) certificate. The State filed a motion to dismiss the petition, alleging that res judicata applied because all of the issues in the postconviction petition were decided by the appellate court on direct appeal. The trial court granted the State's motion to dismiss, and this timely appeal followed.

The Act provides a collateral remedy by which criminal defendants may challenge their convictions or sentences when there have been violations of federal or state constitutional law. People v. Miller, 346 Ill.App.3d 972, 981, 282 Ill.Dec. 462, 806 N.E.2d 759 (2004). The Act creates a three-stage process for postconviction proceedings in cases not involving the death penalty. People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). At the first stage the circuit court reviews the petition and determines whether, on its face, "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2002). If the circuit court does not dismiss the postconviction petition as frivolous or patently without merit, then the petition advances to the second stage.

At the second stage, section 122-4 of the Act provides for the appointment of counsel for an indigent defendant (725 ILCS 5/122-4 (West 2002)), and counsel may file an amended petition. People v. Boclair, 202 Ill.2d 89, 100, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002). At this stage the State is required to either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2002). The circuit court must then determine whether the petition and any attached documents make a substantial showing of a constitutional violation. Edwards, 197 Ill.2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442. If such a showing is made, the petition proceeds to the third stage, where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2002); Boclair, 202 Ill.2d at 100, 273 Ill. Dec. 560, 789 N.E.2d 734. The instant case was dismissed by the trial court at the second stage of the process. This court reviews the dismissal of a postconviction petition at the second stage de novo. People v. Williams, 186 Ill.2d 55, 59-60, 237 Ill.Dec. 112, 708 N.E.2d 1152 (1999); People v. Coleman, 183 Ill.2d 366, 378, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).

Here, defendant's sole contention is that his court-appointed postconviction counsel failed to render him reasonable assistance. Defendant alleges that postconviction counsel should have amended his pro se postconviction petition to include the contention that his trial counsel rendered ineffective assistance for failing to file a motion to suppress defendant's confession based upon a violation of the Vienna Convention.

There is no constitutional right to counsel in postconviction proceedings. Williams, 186 Ill.2d at 60,237 Ill.Dec. 112,708 N.E.2d 1152. Our supreme court has stated that whereas the right to assistance of counsel at trial is derived from the sixth amendment of the United States Constitution, the assistance of counsel at postconviction proceedings "`"is a matter of legislative grace and favor."'" People v. Owens, 139 Ill.2d 351, 364, 151 Ill.Dec. 522, 564 N.E.2d 1184 (1990), quoting People v. Porter, 122 Ill.2d 64, 73, 118 Ill.Dec. 465, 521 N.E.2d 1158 (1988), quoting People v. Ward, 124 Ill.App.3d 974, 978, 80 Ill.Dec. 161, 464 N.E.2d 1144 (1984). Supreme Court Rule 651 requires counsel in postconviction proceedings to provide petitioners with a "reasonable level of assistance." (Emphasis omitted.) Owens, 139 Ill.2d at 364,151 Ill.Dec. 522,564 N.E.2d 1184.

Rule 651(c) further requires that the record in postconviction proceedings demonstrate that appointed counsel "has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." 134 Ill.2d R. 651(c). Compliance with the duties set forth in this rule is mandatory. People v. Munson, 206 Ill.2d 104, 137, 276 Ill.Dec. 260, 794 N.E.2d 155 (2002).

Defendant's postconviction counsel filed a certificate providing that he complied with each of the requirements of Rule 651(c). Defendant argues that counsel should have amended his pro se postconviction petition to "re-fashion" his third claim to state that trial counsel's representation was ineffective for failing to move to suppress defendant's confession based on a violation of Article 36 of the Vienna Convention.

Both the United States and Mexico are signatories of the Vienna Convention, which is a multilateral treaty whose purpose is to promote friendly relations among nations by establishing consular relations. Vienna Convention on Consular Relations, opened for signature April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261. Article 36 of the Vienna Convention requires: that foreign detainees be informed "without delay" that they may contact their consulate; that foreign consular officials be informed when their national has been detained, if the national so requests; and that any communication addressed to the consulate be forwarded without delay. Vienna Convention on Consular Relations, opened for signature April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261.

In the case at hand, defendant argues that the police reports attached to the postconviction petition, read in conjunction with the record of the trial proceedings, reflect that defendant was not notified of his right to contact the Mexican consulate as required by the Vienna Convention. Defendant cites People v. Johnson, 154 Ill.2d 227, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993), in support of his argument that postconviction counsel deviated from the duties contemplated by Rule 651(c) by not amending the petition to include a violation of the Vienna Convention. In Johnson, the trial court dismissed an amended postconviction petition because it was not supported by affidavits, records, or other evidence, as required by the Act. Johnson, 154 Ill.2d at 239-40, 182 Ill.Dec. 1, 609 N.E.2d 304. Johnson's postconviction counsel admitted that he made no effort to obtain affidavits from...