Opinion
1-19-2148
10-08-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM PATTON, Petitioner-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 08 CR 22605 Honorable Colleen Ann Hyland, Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.
ORDER
HOFFMAN JUSTICE
¶ 1 Held: We affirmed the order of the circuit court that dismissed the petitioner's postconviction petition at the second stage of proceedings.
¶ 2 The petitioner, Malcolm Patton, appeals from an order of the circuit court of Cook County, granting the State's motion to dismiss his postconviction petition filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) at the second stage of proceedings. On appeal, he contends that his postconviction counsel provided unreasonable assistance. For the reasons that follow, we affirm.
¶ 3 At the outset, we note that the petitioner has failed to provide this court with a complete record; namely, the petitioner did not provide a copy of the report of proceedings for his trial. It is well established that the appellant has "the burden of providing a sufficiently complete record on appeal so that the reviewing court is fully informed regarding the issues to be resolved." People v. Bannister, 378 Ill.App.3d 19, 36, aff'd, 236 Ill.2d 1 (2009). Any doubts that arise from the incompleteness of the record will be resolved against the petitioner. See Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984). Due to the petitioner's failure to supply a complete record, the following factual recitation and procedural history was derived from the limited record available and our prior decision on the petitioner's direct appeal.
The petitioner's brief has a more extensive factual recitation than the one contained in our prior appellate decision, however, because we do not have the benefit of the report of proceedings for the trial, we cannot independently verify the facts presented by the petitioner.
¶ 4 The petitioner was charged by indictment with, inter alia, armed robbery stemming from an incident that occurred on November 14, 2008. The following facts were adduced at the petitioner's jury trial.
¶ 5 Jeffrey Lesko testified that on November 14, 2008, he worked at a convenience store at 3440 W. 95th Street, in Evergreen Park. Shortly after 11:00 p.m., a man, who Lesko identified at trial as the petitioner, came to the counter and asked for Newport cigarettes. The petitioner was wearing a black quilted jacket, a gray hooded sweatshirt, and a black baseball hat turned backwards. When Lesko turned to retrieve the cigarettes, the petitioner showed him a small silver gun. The petitioner told Lesko to give him the money from the two cash registers and the lottery machine. Lesko opened the two cash registers and gave the petitioner the money, but the lottery machine was empty. The petitioner demanded a carton of Newport cigarettes, which Lesko supplied, and then he left. Lesko yelled for his coworker to call 911. Lesko spoke to the 911 operator and gave a description of the perpetrator. The police arrived, and about 10 to 15 minutes later, Lesko went with the police to 90th and California for a show up, where he identified the petitioner as the perpetrator. Lesko testified that he identified the petitioner right away at the show up.
¶ 6 Lesko also testified that the convenience store had two video cameras that truly and accurately captured the incident, and the video from those cameras was admitted into evidence and played in court.
¶ 7 Evergreen Park police officers John Murphy and Brian Yates both testified to the following version of events. While on patrol, they received a call regarding an armed robbery at a nearby convenience store and a description of the offender. The officers, who were in plain clothes and driving an unmarked car, noticed a car with three men in it at 91st Street and Kedzie Avenue. They followed the car and pulled up alongside it, but none of the occupants turned to look at them, which they found unusual. The officers then fell back behind the car, activated their emergency lights, and curbed the vehicle. Officer Murphy approached the driver's side and saw the petitioner in the rear passenger seat, making some movements with his hands. Officer Murphy told the occupants to show their hands, and they complied. The petitioner then started to move his left hand into the pocket of his pants, and Officer Murphy drew his weapon and ordered him to show his hands. The petitioner complied momentarily, but he again lowered his hands, and Officer Murphy told him to raise them. When additional officers arrived, the petitioner was removed from the vehicle. The officers found a gun on the floor of the backseat on the passenger side and a carton of Newport cigarettes on the floor of the backseat on the driver's side. The police searched the petitioner and found ammunition for the gun in the pocket of his pants. Officers took Lesko to 90th Street and California Avenue, where the vehicle carrying the petitioner was curbed, and he positively identified the petitioner as the perpetrator.
¶ 8 The record before us does not reflect that the petitioner presented any evidence on his behalf.
¶ 9 During deliberations, the jury asked for transcripts of the testimony of Lesko and a police officer named Officer Sass. The jury also asked if a word search of the transcripts could be conducted for the following words: facial hair, beard, mustache and braids. Defense counsel indicated that he did not order either of the requested transcripts. The State informed the court that it only ordered the daily copy of Lesko's transcript, not Officer Sass's. Thus, only a transcript of Lesko's testimony was available to send back. The defense objected to sending back only Lesko's testimony on the ground that both should be sent back together as the jury had asked, or none at all. The court opted to send back the transcript of Lesko's testimony and told the jury that Officer Sass's transcript was not available and to keep deliberating.
The limited record provided to us on appeal does not contain Officer Sass's full name, nor is there any mention of his testimony in our previous order.
¶ 10 The jury found the petitioner guilty of armed robbery, and the court sentenced him to a 35-year prison term, which included a 15-year firearm enhancement.
¶ 11 On direct appeal, the petitioner argued that the 15-year firearm enhancement imposed at sentencing was unconstitutional and that his 35-year sentence was excessive. This court affirmed the petitioner's conviction and sentence. People v. Patton, 2013 IL App (1st) 112793-U. The petitioner filed a petition for leave to appeal to the supreme court, which was denied on January 29, 2014. People v Patton, 3 N.E.3d 800 (2014).
¶ 12 At some point in 2014, the petitioner filed a pro se postconviction petition pursuant to the Act. The precise date that the petitioner mailed his petition to the court is unknown, but the proof of service attached to the petition was notarized on July 23, 2014. The court's docket entries reflect that the petition was filed on August 22, 2014. However, the record contains two copies of the petition: one is file stamped August 22, 2014, and another is file stamped December 8, 2014. ¶ 13 The petitioner alleged in his pro se postconviction petition that his due process rights were violated in the following ways: Lesko and the officers testified inconsistently as to whether Lesko had the opportunity to view the two other men in the car with the petitioner during the show up; Lesko's identification of him as the perpetrator is inconsistent with the description he provided to responding officers with regard to the perpetrator's height; and the police failed to preserve fingerprint evidence or test for the presence of fingerprint evidence.
¶ 14 Subsequently, the petitioner was appointed postconviction counsel. On May 18, 2018, the petitioner's postconviction counsel filed both a supplemental petition on his behalf and a Rule 651 (c) certificate. In the supplemental petition, counsel added a claim that the petitioner's appellate counsel was ineffective for not challenging the trial court's decision to send to the jury only one of the requested transcripts. The Rule 651(c) certificate filed by postconviction counsel stated that counsel consulted with petitioner on numerous occasions to ascertain his contentions of deprivations of constitutional rights, reviewed the record related to the petitioner's conviction, and examined the petitioner's pleadings and determined that they adequately presented his claims of deprivations of constitutional rights.
¶ 15 The State moved to dismiss the petitioner's postconviction petition on August 3, 2018, arguing, inter alia, that his petition was untimely, the claims in his pro se petition are forfeited because they could have been raised on direct appeal, and his claim of ineffective assistance of appellate counsel failed to allege a substantial constitutional violation. As to its first argument, the State maintained that the statutory deadline for filing a postconviction petition under the Act "would have been in November 2013" and the petitioner's pro se petition was filed in "December 2014." The State argued that the petitioner's postconviction petition must be dismissed as untimely where he failed to offer any explanation as to why he was not culpably negligent in filing past the statutory deadline.
The State's motion to dismiss incorrectly states that the petitioner's petition for leave to appeal was denied by the supreme court on January 29, 2013, when the denial actually occurred in 2014.
¶ 16 At the hearing on the State's motion to dismiss, the State once more asserted that the deadline for the petitioner to file his petition under the Act was November 2013 and he did not file his petition until December 2014. The petitioner's postconviction counsel did not dispute these facts or otherwise address the State's argument that his petition was untimely during the hearing.
¶ 17 On October 4, 2019, the circuit court granted the State's motion to dismiss the petitioner's postconviction petition. In its written order, the court found that the petitioner waived the claims raised in his pro se petition regarding the sufficiency of the evidence, the propriety of the identification procedures, and the preservation fingerprint evidence because he failed to raise them on direct appeal. Regarding the claim in his supplemental petition that his appellate counsel was deficient, the court found that appellate counsel's decision not to raise the transcript issue was not "patently erroneous" and that, even if it were, the petitioner failed to establish he was prejudiced by his counsel's performance. This appeal followed.
¶ 18 On appeal, the petitioner contends that his postconviction counsel failed to provide reasonable assistance, citing counsel's failure to both address the State's timeliness arguments and to amend his petition in such a way that his claims avoided the procedural bar of waiver.
¶ 19 Before turning to the merits, we note that the State, the appellee in this case, did not file an appellate brief. The State asked for, and this court granted, an extension to file its brief until February 26, 2021. However, after seven months passed without the State having filed its brief, this court, on its own motion, opted to consider the case on the petitioner's brief alone.
¶ 20 The Act provides a procedural mechanism through which a petitioner may assert a substantial denial of his constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1 (West 2012). At the first stage of a postconviction proceeding, the circuit court independently reviews the petitioner's petition, taking the allegations as true, and determines if it is frivolous or patently without merit. People v. Hodges, 234 Ill.2d 1, 10 (2009). If the postconviction petition is not summarily dismissed, as here, it advances to the second stage, where the State may file a motion to dismiss the petition and the postconviction court must determine whether the petition and any accompanying documents make a substantial showing of a constitutional violation. Id. at 10-11 n. 3. At the second stage of proceedings, the postconviction court takes "all well-pleaded facts that are not positively rebutted by the trial record" as true. People v. Pendleton, 223 Ill.2d 458, 473 (2006). If the petition fails to make a substantial showing of a constitutional violation, it is dismissed; if such a showing is made, the postconviction petition advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). We review a dismissal of a petition at the second stage de novo. People v. Whitfield, 217 Ill.2d 177, 182.
¶ 21 Under the Act, petitioners are entitled to "reasonable" assistance of counsel. People v. Perkins, 229 Ill.2d 34, 42 (2007). To ensure that a petitioner receives reasonable assistance of counsel, Illinois Supreme Court Rule 651(c) requires that the record in the trial court contain a showing, which may be made by the certificate of the petitioner's attorney, that the attorney: (1) "has consulted with the petitioner *** to ascertain his or her contentions of deprivation of constitutional rights," (2) "has examined the record of the proceedings at the trial," and (3) "has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioners contentions." Ill. S.Ct. R. 651(c) (eff. Feb. 6, 2013); see also People v. Perkins, 229 Ill.2d 34, 42 (2007). Compliance with Rule 651(c) is mandatory. People v. Lander, 215 Ill.2d 577, 584 (2005).
¶ 22 The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that postconviction counsel complied with the requirements of the rule and provided reasonable assistance. People v. Profit, 2012 IL App (1st) 101307, ¶ 19; People v. Jones, 2011 IL App (1st) 092529, ¶ 23. In the instant case, postconviction counsel filed a Rule 651(c) certificate and thus there is a rebuttable presumption that postconviction counsel rendered reasonable assistance.
¶ 23 The petitioner argues that the record rebuts the presumption that his postconviction counsel provided reasonable assistance, citing two examples: his counsel's failure to respond to the State's contention that his pro se petition was untimely and his counsel's failure to amend his petition to "constitutionalize" his claims to ensure they were not barred by waiver. We first address whether the petitioner's counsel was unreasonable for failing to amend his petition to address the issue of timeliness.
¶ 24 "Postconviction proceedings may not be commenced outside the time limitation period in the [] Act unless the defendant alleges sufficient facts to show the delay in filing was not due to the defendant's culpable negligence." Lander, 215 Ill.2d at 586. Relevant to this appeal, the Act provides that proceedings must be commenced within
"6 months after the conclusions of proceedings in the United States Supreme Court *** If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1 (c) (West 2014).
¶ 25 Here, the Illinois Supreme Court denied the petitioner leave to appeal on January 29, 2014. Pursuant to U.S. Supreme Court Rule 13, a petition to review a judgment entered by a state court of last resort is timely when filed within 90 days after its entry. See U.S. Sup. Ct. R. 13(1) (eff. July 1, 2013). The petitioner therefore had until April 29, 2014-90 days from January 29, 2014- to petition for review by the United States Supreme Court. Thereafter, the petitioner had six months to timely file under the Act-until October 29, 2014.
¶ 26 The record reflects that the petitioner's pro se petition was filed on August 22, 2014, and docketed by the court on that same date, which is within the statutory timeframe mandated under the Act. However, this fact was seemingly lost on both the petitioner's postconviction counsel and the State. The supplemental petition filed by the petitioner's postconviction counsel erroneously listed the petition as being filed on July 23, 2014, which was the date the proof of service was notarized. On the other hand, the basis for the State's argument that the petition was untimely is the presence of a second timestamped petition in the record, which reflects a filing date of December 8, 2014. However, the origin of that petition appears to have been a letter sent by the petitioner to the court on December 2, 2014, asking the court to send him a file stamped copy of his postconviction petition. In other words, the record reflects that the petitioner's pro se petition was timely filed on August 22, 2014. Presumably, the circuit court reached the same conclusion because it did not mention the State's timeliness argument anywhere in its written decision, nor did it dismiss his petition as untimely. Given that the court below recognized, as do we, that the record did not support the State's argument, we cannot conclude that counsel's failure to amend the petition to more directly address the issue was evidence of his unreasonableness. Accordingly, we find that the record did not rebut the presumption that the petitioner's postconviction counsel provided reasonable assistance of counsel
¶ 27 We turn next to the petitioner's contention that his postconviction counsel provided unreasonable assistance due to his failure to amend his petition to save his claims from waiver. Specifically, the petitioner alleges that his postconviction counsel should have realized the claims raised in his pro se petition were not cognizable under the Act in their current form and amended his petition to allege ineffective assistance of appellate counsel for failure to raise the issues on direct appeal. According to the petitioner, this failure rebuts the presumption that his postconviction counsel provided reasonable assistance. We again disagree.
¶ 28 In arguing that that his counsel should have amended his postconviction petition so that his claims would not have been barred by forfeiture, the petitioner does not argue that his claims, in fact, have merit. Instead, he asserts that the merit of his underlying claims is irrelevant, relying primarily on People v. Suarez, 224 Ill.2d 37 (2007). In Suarez, our supreme court found that postconviction counsel failed to comply with Rule 651(c) because he did not file a Rule 651(c) certificate and the record did not show he had consulted with the petitioner. Id. at 40, 44. In these circumstances, the Suarez court held that remand was required regardless of whether the claims raised in the petition had merit and that noncompliance with Rule 651(c) may not be excused on the basis of harmless error. Id. at 47, 52.
¶ 29 We reject defendant's argument. Here, unlike in Suarez, postconviction counsel filed a Rule 651(c) certificate and so there is a rebuttable presumption that he performed the duties required by that rule. People v. Profit, 2012 IL App (1st) 101307, ¶ 23. Because the presumption of reasonable assistance is present, "the question of whether the pro se allegations had merit is crucial to determining whether counsel acted unreasonably by not filing an amended petition." Id. ¶ 23. Merit is a crucial consideration because" '[fulfillment of the third obligation under Rule 651(c) does not require postconviction counsel to advance frivolous or spurious claims on defendant's behalf.'" Id. (quoting Greer, 212 Ill.2d at 205). As our supreme court has explained, if an amendment to a pro se petition would only further a frivolous or patently nonmeritorious claim, then it is not a "necessary" amendment within the meaning of Rule 651(c). People v. Greer, 212 Ill.2d 192, 205 (2004).
¶ 30 Here, the petitioner has not demonstrated that any of his pro se claims had merit and, therefore, has failed to rebut the presumption. We therefore cannot find that counsel provided an unreasonable level of assistance.
¶ 31 For theses reasons, we affirm the judgment of the circuit court of Cook County.
¶ 32 Affirmed.