People v. Walker, Appeal No. 3–15–0527

• Decision Date: 04 January 2018
• Docket Number: Appeal No. 3–15–0527
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Christ E. WALKER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (3d) 150527

93 N.E.3d 734

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

v.Christ E. WALKER, Defendant–Appellant.

Appeal No. 3–15–0527

Appellate Court of Illinois, Third District.

Opinion filed January 4, 2018

Michael J. Pelletier, Peter A. Carusona, and Bryon Kohut, of State Appellate Defender's Office, of Ottawa, for appellant.

Jim Rowe, State's Attorney, of Kankakee (Patrick Delfino, Lawrence M. Bauer, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Christ E. Walker, appeals from the dismissal of his petition for relief from judgment filed pursuant to section 2–1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–1401 (West 2014) ). Defendant contends that his appointed counsel provided inadequate assistance. We reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 A jury found defendant guilty of two counts of first degree murder ( 720 ILCS 5/9–1(a)(1), (2) (West 2004)), one count of attempted murder of a peace officer ( 720 ILCS 5/8–4(a), 9–1(b)(1) (West 2004)), two counts of aggravated discharge of a firearm ( 720 ILCS 5/24–1.2(a)(2), (3) (West 2004)), one count of aggravated assault ( 720 ILCS 5/12–2(a)(6) (West 2004)), and one count of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/241.6(a)(1), (a)(3)(A) (West 2004)).

¶ 4 On April 4, 2006, the trial court merged the appropriate counts and sentenced defendant to the following: 49 years' imprisonment for first degree murder, 20 years' imprisonment for attempted murder of a peace officer; 10 years' imprisonment for aggravated discharge of a firearm, and 5 years' imprisonment for AUUW. Defendant's sentence for first degree murder was ordered to run consecutive to the remaining sentences, resulting in an aggregate sentence of 69 years' imprisonment.

¶ 5 On direct appeal, this court affirmed defendant's convictions and sentences. People v. Walker , 386 Ill. App. 3d 1025, 327 Ill.Dec. 101, 901 N.E.2d 429 (2008). Thereafter, defendant filed several additional but unsuccessful collateral appeals. See People v. Walker , No. 3–10–0077 (2010) (unpublished order under Supreme Court Rule 23 ); People v. Walker , No. 3–11–0100 (2011) (unpublished summary order under Supreme Court Rule 23(c) ); People v. Walker , No. 3–11–0642 (2013) (unpublished summary order under Supreme Court Rule 23(c) ).

¶ 6 Next, defendant appealed the denial of his second motion for leave to file a successive postconviction petition (denied November 14, 2013). On appeal, this court ordered the trial court to vacate defendant's AUUW conviction and sentence. People v. Walker , No. 3–14–0022 (2016) (unpublished summary order under Supreme Court Rule 23(c) ).

¶ 7 On January 23, 2015, defendant filed a pro se section 2–1401 petition, which is the subject of this appeal. The petition alleged that the firearm enhancement to his first degree murder sentence was void because it was not presented to the jury. The petition also alleged that the evidence was insufficient to prove his guilt for the offense of attempted murder of a peace officer. The petition did not include any allegations to explain why defendant filed the petition nearly 10 years after his conviction.

¶ 8 At a hearing on the petition, defendant requested counsel to represent him on his section 2–1401 petition. The trial court, in an exercise of its discretion, appointed counsel to represent defendant.

¶ 9 At the next hearing, appointed counsel informed the court that he had reviewed defendant's petition, met with defendant, and discussed the petition with defendant. Counsel noted that, initially, it was unclear whether the public defender could be appointed to represent an indigent defendant in a section 2–1401 proceeding, however counsel told the court,

"Since then, I was appointed by [the public defender's office] and then I went out to the jail to discuss the options with [defendant] and I have reviewed it, the petition with him. There's really no procedural guideline here like under post-conviction law, the State would either be given a chance to answer or to file a motion to dismiss, but this is a 1401 and there's really no—no standard here."

¶ 10 The State then asked appointed counsel if he was adopting defendant's pro se petition. Appointed counsel responded,

"[A]s to whether I'm adopting the 1401, there's really no question of whether I can adopt it or not. My—the duty I see under the case law that I've read is that I just have to present his claims in court basically. So it's—I'm—I'm basically going to defend it."

¶ 11 The parties agreed to continue the matter for a hearing. At the conclusion, the trial court noted that the instant case "really comes down to reviewing the transcript." Appointed counsel replied, "Actually, Judge, I—I don't—I mean unlike [ Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) ], which specifically governs post convictions, I don't even think that that needs to be done in this situation."

¶ 12 The court replied, "[M]aybe it's not required to be done, but it seems like I mean somebody would probably want to review the transcripts. Okay." The court concluded, "You don't have to. I mean I guess you can make your arguments and I'll review them, but okay."

¶ 13 When the parties returned to court for the next hearing, the State asked for leave to file a motion to dismiss defendant's petition. The court allowed the request and provided appointed counsel time to file a response to the State's motion. Before the hearing concluded, appointed counsel told defendant that he would review the State's motion, meet with defendant to discuss the motion, and discuss how to respond to the motion.

¶ 14 Next, the State filed its motion to dismiss. In the motion, the State argued that the petition was untimely. In addition, the State argued that the petition failed to allege any of the exceptions to excuse the untimely filing. Specifically, the State asserted,

"The judgment petitioner attacks in his 2–1401 petition was entered in 2006. There is no claim either in the body of the petitioner's filing, or in any affidavit, that the petitioner is under a legal disability or duress, or the grounds for relief are fraudulently concealed. Thus the petitioner's petition must be dismissed as untimely."

¶ 15 Thereafter, appointed counsel filed a response to the State's motion to dismiss. The response acknowledged that the petition was untimely. However, the response denied the allegations made in the State's motion to dismiss that there was no basis alleged to excuse the untimely filing. The response did not expressly allege any excuse for the untimely filing.

¶ 16 The trial court then held a hearing on the State's motion to dismiss. At the hearing, the State repeated its argument that the petition failed to allege that defendant was under a legal disability or duress or that the grounds for relief were fraudulently concealed. The State asserted that the petition was untimely and, therefore, should be dismissed.

¶ 17 In response, appointed counsel argued that the timeliness of the petition was factual in nature. According to counsel, therefore, it was inappropriate to raise the issue in a proceeding that was simply a matter of sufficiency of law. Appointed counsel asserted that "in the interest of justice," defendant should be allowed "to testify as to the conditions of his cell and the conditions of his home institution at Menard and his inability to gain access to the investigative tools and materials necessary" to assert fraudulent concealment. According to appointed counsel, without any "specific powers of investigation," his ability to claim fraudulent concealment was limited. Counsel, therefore, asked the court to deny the State's motion to dismiss and set the matter for an evidentiary hearing.

¶ 18 In reply, the State asserted that appointed counsel's argument was not a factual argument but merely a legal argument. The State noted that no exception to the time limitations period had been pled in defendant's petition, and the court had no choice but to dismiss the petition. The trial court took the matter under advisement.

¶ 19 While under advisement, defendant filed a pro se response to the State's motion to dismiss. In the response, defendant asserted that the two-year limitations period did not apply because he was challenging a void order. Defendant further asserted that he suffered from severe depression and was placed in the mental health unit in Menard Correctional Center shortly after his arrival in 2006. According to defendant, he remained in solitary confinement for four years while in the mental health unit. In 2014, defendant was removed from the mental health unit and placed in general population. Defendant further asserted that he was not given law books to use in filing his petition because they were not permitted to be removed from the law library.

¶ 20 On July 20, 2015, the trial court held a hearing in which it allowed the State's motion to dismiss because defendant's petition failed to make any showing of an excuse for its untimeliness. After the court announced its decision, appointed counsel stated that he was not adopting defendant's pro se response to the State's motion to dismiss. Counsel stated that he had read defendant's response, and "there was nothing that I find I can add at this time to the matter." Defendant filed a notice of appeal, and new counsel was appointed to represent him on appeal.

¶ 21 While on appeal, newly appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). We denied the motion, and this appeal follows.

¶ 22 ANALYSIS

¶ 23 On appeal, defendant contends that his court-appointed counsel for his section 2–1401 petition failed to provide adequate assistance. Specifically, defendant argues that counsel was inadequate for failing to amend his petition to...