Opinion
5-20-0114
09-07-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN L. TAYLOR, Defendant-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 Madison County. No. 12-CF-2314 Honorable Neil T. Schroeder, Judge, presiding.
MOORE JUSTICE delivered the judgment of the court. Presiding Justice Boie and Justice Barberis concurred in the judgment.
ORDER
MOORE, JUSTICE
¶ 1 Held: The third stage denial of the defendant's postconviction petition is affirmed where the record on appeal demonstrates that postconviction counsel substantially complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶ 2 The defendant, Brian L. Taylor, appeals the denial in the circuit court of Madison County, of his postconviction petition at the third stage of proceedings. The defendant asks this court to remand this cause for further third-stage proceedings with new counsel, contending his postconviction counsel failed to provide a reasonable level of assistance required under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For the following reasons, we affirm the order of the circuit court of Madison County denying the defendant's postconviction petition.
¶ 3 I. BACKGROUND
¶ 4 The defendant was charged with first degree murder and armed robbery with a firearm under an accountability theory following the shooting death of Charles Weiss during an attempted robbery on November 8, 2012. The defendant was 16 years old at the time of the crime.
¶ 5 On November 30, 2012, the defendant along with his appointed public defender, Mary Copeland, entered pleas of not guilty as to both counts alleged against him and requested a jury trial. On May 12, 2014, following the discovery of a conflict of interest, attorney Steven Griffin (Mr. Griffin) was appointed to represent the defendant.
¶ 6 On August 12, 2014, the defendant and Mr. Griffin appeared before the circuit court and informed the judge of the State's negotiated plea offer. Mr. Griffin articulated his understanding of the offer as follows:
"If the defendant is inclined to plead guilty to the offense of armed robbery and accept a sentence in the amount of 20 years in the Illinois Department of Corrections at 85 percent, and if the defendant is willing to continue to cooperate and testify truthfully against any of three remaining codefendants, should they go to trial, the State would dismiss the murder charge in this case."
Mr. Griffin noted that the defendant would receive credit for time already spent in custody, totaling approximately two years. Mr. Griffin then informed the court that the defendant's "family is in the courtroom today, his mother and his aunt to whom he's very close." He went on to emphasize that:
"They've been apprised of these negotiations, quite frankly. And I've urged them to think very carefully about this. In fact, I'm essentially recommending they should probably take this. In my years of experience, I've seen too many other situations, quite frankly, go bad."
He added that he was recommending the defendant accept the plea offer because "if he's convicted of murder, the minimum is 20. Because there was an armed robbery in which a person is now deceased, you would add 15 to that 20, so you're right at 35 years at a hundred percent, if you get convicted." Mr. Griffin then noted the issue of accountability within the case involving the defendant. He stated, "I've shown his family the accountability statute in this State. I think there could also be a 6 years [sic] add on to that 35 at 85 percent the way the statute stacks up because of there being a gun in this case. It could be at 41 very quickly."
¶ 7 Following Mr. Griffin's comments, the attorney for the State, Ms. Uhe, stated that she and "Mr. Griffin have talked at length with [the defendant] and the family about these negotiations." She then indicated her agreement with Mr. Griffin's description of the minimum sentence for the defendant if convicted of the charges alleged against him.
¶ 8 Then the circuit court questioned the defendant, asking him his age, his level of education, whether he discussed the plea offer with Mr. Griffin, and whether he understood the plea offer. The defendant replied that he was 17 years old, attended up to his freshman year in school, affirmed that he discussed the plea offer with Mr. Griffin, and that he understood the plea offer. The court then admonished the defendant that he could forgo the offer and may be found innocent of the alleged crimes. However, the court reiterated that if the defendant was found guilty, even though his "record is not so bad" or "even if I feel sorry for you," the court would have no choice but to sentence him the minimum required under Illinois law. And further, the court stated that it could, if it deemed fit, sentence him to more than that amount.
¶ 9 The court then asked the defendant if he had any questions. The defendant responded that he did not. Prior to adjourning the hearing, Mr. Griffin reiterated the issue of accountability and read aloud what appeared to be either a jury instruction or a brief recitation of the relevant accountability statute. The defendant again confirmed his understanding of the theory of accountability and how he could be held responsible for acts he did not commit when those acts were involved in a crime of which he was a participant.
¶ 10 On September 5, 2014, the court held proceedings for the defendant's acceptance of the State's plea offer. During the proceeding, Mr. Griffin indicated his client's intention to waive any jurisdictional issues "as far as certification to stand trial as an adult on that particular Count that he'll be pleading to" and "waive any further hearing in Aggravation and Mitigation, waive a Presentence Investigation." Mr. Griffin stated that the defendant had no prior criminal history and that "he will cooperate with the State's Attorney's Office in the prosecution of three remaining Co-Defendants." The circuit court then reiterated the plea offer details as discussed previously and again confirmed that the defendant understood the plea offer.
¶ 11 The circuit court then read aloud count III as added in the amended information to which he was pleading guilty, and the defendant acknowledged his understanding of that charge. The court finally admonished the defendant again about his rights not to accept the plea offer and to persist in his innocence at trial, and that by pleading guilty to the negotiated plea offer he would be waiving most of those rights. The court confirmed with the defendant that he was making the decision to plead guilty under his own free will and acknowledged that the defendant had a month to contemplate his decision. The court confirmed that the defendant had spoken with his family regarding his acceptance of the plea offer and that some of the family was present in the courtroom. The State then waived the presentencing investigation, and the court took as stipulated that the defendant had no prior criminal history. The court then entered the negotiated plea offer and reiterated again the resulting sentencing as agreed upon by the parties. The defendant acknowledged the sentencing was in accordance with his understanding of the plea agreement.
¶ 12 Prior to concluding the proceeding, the circuit court admonished the defendant of his right to appeal and explained how he would have to file a motion to withdraw his guilty plea. He then admonished him as to the steps he could take if the circuit court denied that motion to withdraw. The defendant confirmed his understanding of his appeal rights and the hearing was adjourned.
¶ 13 On October 3, 2014, the defendant filed a letter requesting an extension of time to file a motion to withdraw his guilty plea. To ensure the defendant did not miss the filing deadline, Mr. Griffin also filed a motion to withdraw the defendant's guilty plea on October 7, 2014. On October 28, 2014, the court conducted a hearing on the defendant's request for additional time to file a motion to withdraw his guilty plea. The court granted the request and noted that Mr. Griffin had filed a motion to withdraw out of an abundance of caution to preserve any challenge. The court then determined a conflict existed between Mr. Griffin and the defendant since the defendant's withdrawal motion alleged ineffective assistance of counsel.
¶ 14 On October 15, 2014, the defendant filed further pro se pleadings regarding his motion to withdraw his guilty plea. On October 29, 2014, attorney John Delaney (Mr. Delaney) was appointed to represent the defendant for purposes of withdrawal of his guilty plea. On June 1, 2015, Mr. Delaney filed a motion to adopt the defendant's pro se motion to withdraw his guilty plea.
¶ 15 On August 31, 2015, the court held a hearing on the defendant's motion to withdraw his guilty plea. The defendant testified generally that Mr. Griffin gave him incorrect advice, failed to go over the evidence with him in detail, and failed to investigate the circumstances of the case. He denied knowing what the legal theory of accountability was and could not recall if Mr. Griffin had ever explained it to him. He testified that he pleaded guilty to the 20-year sentence because Mr. Griffin told him that if he did not he would have to go to trial and could be sentenced to a minimum of 41 years. He testified that his family encouraged him to accept the plea offer. He stated that he believed that his young age and "lack of learning" resulted in him taking the plea offer.
¶ 16 On cross-examination, the defendant testified that both the State and Mr. Griffin met with him while he was in custody and that they explained the possible penalties that he faced. He admitted that he told the police he was present when the murder occurred, that he was with the three codefendants, that one of those individuals was the shooter, and that he was there to commit an armed robbery with those other individuals. He then testified that despite telling the police this, in fact, "I was there but I didn't know any of this was gonna happen," that he was not even there for the armed robbery but was just present with the other individuals. He testified that he discussed the facts of his case and the details of the plea offer with Mr. Griffin and his family. He further testified that he talked with the State about the charges he was facing and their possible sentences. He testified he understood that he was getting 20 years' incarceration at 85% on an armed robbery charge as part of the plea offer. He testified that he decided to accept the plea offer because Mr. Griffin advised him that at trial, based on the evidence, he would be facing significantly more time.
¶ 17 On redirect, Mr. Delaney asked the defendant if he was aware of an Illinois accountability statute that says, "a person's responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for conduct of both." The defendant replied, "No, sir." However, on recross examination, the defendant stated that he understood that "if you commit an armed robbery and somebody dies, even if you are not the one who pulls the trigger that you could be held accountable for it." Following the defendant's testimony, the State called Mr. Griffin to testify.
¶ 18 Mr. Griffin testified that he was appointed to represent the defendant. They met approximately 8 or 10 times. He received discovery from the State including a statement given by the defendant to law enforcement. He reviewed that statement with his client, and they discussed the likelihood of the State prevailing at trial on the accountability theory of first degree murder. Mr. Griffin testified he "tried [his] best to explain to [the defendant] how [the accountability theory] operated under the law." He stated that he had discussed the possible penalties and sentences that came with the first degree murder charge and armed robbery charge.
¶ 19 Mr. Griffin testified that he spoke with his client and his client's family regarding the plea offer. He allowed the defendant to ask questions and contemplate the offer over a couple of weeks. He testified that he recalled that the defendant was admonished as to the possible penalties and sentences twice by the court on different occasions. Mr. Griffin testified that "based on [the defendant's] statement *** to the police, about how long he was with this crew before this happened and then some of his actions afterwards," he felt the State had enough evidence to convict under the accountability theory. Mr. Griffin testified that his focus was to get the first degree murder charge negotiated out, but that it was the defendant's decision whether to accept a plea offer. He testified that the State refused to go lower than the sentence of 20 years at 85%.
¶ 20 Following testimony, the court took the matter under advisement and admonished the defendant again of his appeal rights and the timelines required for those appeals.
¶ 21 On November 25, 2015, the circuit court found that the "defendant's plea of guilty was knowing and voluntary" and did not find that "attorney Steve Griffin's representation of the defendant was ineffective." It then denied the motion to withdraw the guilty plea.
¶ 22 On January 14, 2016, the defendant filed his initial pro se postconviction petition which stated that
"Petitioner's constitutional rights were violated because *** misleading of counsel due to withholding of my discovery and evidence by my counsel. My counsel failed to properly advise me on this offense and persuaded me to take this plea without investigating as to the mitigating circumstances in this said matter. That I at the time of said offense was only 16 yrs [sic] old and the youthfulness of the defendant was not taken into consideration by the Honorable court. I was an underage minor and questioned without an adult present. My youthfulness was taken advantage of."
¶ 23 On March 2, 2016, the circuit court found that the petition for postconviction relief filed by the defendant "states the gist of a constitutional claim." On March 28, 2016, Mr. Delaney, the defendant's former attorney for his motion to withdraw his guilty plea, was reappointed by the circuit court for the purposes of representing him in his postconviction proceedings. On June 5, 2016, Mr. Delaney filed a certificate pursuant to Illinois Supreme Court Rule 651(c).
¶ 24 On August 8, 2016, the defendant filed a pro se amended postconviction petition (postconviction petition). In the postconviction petition the defendant argued, inter alia, that his due process rights were violated when he was transferred "from Juvenile court to Adult court without hearing, without effective assistance of counsel, without statement of reasons," and "that without a proper hearing the Adult courts lacked jurisdiction over the 16 year old defendant and [his] conviction thus is void." He further argued allegations of ineffective assistance of plea counsel in that Mr. Griffin "advised the defendant to plead guilty to 'Armed Robbery with a Firearm'" even though he was only charged with armed robbery with a "bludgeon," Mr. Griffin was ineffective in that "he failed to conduct a proper investigation into the facts of this case in that he failed to interview the co-defendants," and that Mr. Griffin was ineffective in failing to suppress the defendant's statement to police because it was coerced and he was denied counsel and consultation with an adult. An affidavit of Cynthia Taylor, the defendant's mother, was also filed wherein she averred that she was at the police station at the time of her son's questioning and she was denied the ability to see her son.
¶ 25 On August 15, 2016, Mr. Delaney filed another a Rule 651(c) certificate adopting the defendant's postconviction petition. On March 29, 2017, the circuit court entered a continuance following a consultation between the defendant and Mr. Delaney, after which Mr. Delaney indicated to the court that the defendant wished for him to file an additional amendment. On April 4, 2017, Mr. Delaney filed an additional amendment to the postconviction petition which quoted the statute that the defendant argued he was incorrectly transferred to adult court pursuant to, section 5-130 of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2016)).
We do acknowledge, as stated by the defendant in his brief, that the quoted statute was incorrectly cited in the amendment that was filed. However, considering that the attorney properly quoted the language of the applicable text, and it appears based upon our complete review of the record that all the parties understood the correct statute being referenced and discussed at the court's second stage hearing, we find this oversight or typographical error does not constitute unreasonable assistance of counsel.
¶ 26 On July 25, 2017, the circuit court held a hearing on the State's motion to dismiss the defendant's postconviction petition. However, prior to addressing that issue, the court addressed two other pending motions. The defendant had filed a pro se motion for substitution of counsel, and then subsequently, Mr. Delaney had filed a motion to withdraw as the defendant's counsel.
¶ 27 Mr. Delaney informed the court that he filed his motion to withdraw for three reasons: (1) the defendant was asking him to take an "untenable" position in that he wanted him to argue that because he was not charged as a juvenile he cannot be sentenced and cannot be convicted of a crime; (2) the defendant refuses to listen to his advice and has refused to withdraw his postconviction petition which may result in him being convicted of a much greater sentence in excess of 40 years; and (3) simply because the defendant filed pro se the motion to have him substituted so he was acquiescing to his client's wishes.
¶ 28 The defendant then responded that the reasons he wanted to substitute Mr. Delaney were because Mr. Delaney continued the case without his consent; Mr. Delaney told his family that the defendant "should leave the case alone because [he is] not going to win"; Mr. Delaney "has told me out of his own mouth that him and Mr. Steve Griffin are really close friends"; and there "were the issues that I was telling him to argue which he never did."
¶ 29 Mr. Delaney then responded to the defendant's allegations: "Your Honor, I think when I was talking to him about why he should consider keeping the offer that was made I told him I know Mr. Griffin well and that he worked real hard and got him an incredible deal and should not be turned down because it is foolish to do so."
¶ 30 The circuit court then noted that Mr. Delaney did not need the defendant's permission to continue the case, and that the issues that the defendant alleged Mr. Delaney failed to argue were, in fact, being argued:
"You indicate that he has not investigated matters or failed to set forth issues that you wanted presented. By my reading of the file [Mr. Delaney] has presented every issue that you wanted presented. The fact that you should have never been charged as an adult, that's in the Petition. You filed it in writing. He adopted it. He filed a formal motion adopting that filing.
So that issue is of record. The fact that he pled guilty to one offense that wasn't included in the automatic transfer statute and for that reason you believe you shouldn't have been sentenced as an adult. That issue is in the Post-Conviction Petition that's before the Court.
The fact that you allege Mr. Griffin was ineffective for various reasons, all of those issue are in the Post-Conviction Petition presented before the Court."
¶ 31 The circuit court then denied the motions and asked the defendant if he wished to continue with Mr. Delaney as his attorney, hire his own attorney, or continue pro se and represent himself. The defendant then chose to stay with Mr. Delaney.
¶ 32 The circuit court then held argument on the State's motion to dismiss. The first issue argued was whether the defendant was properly sentenced as an adult. The State argued that the defendant was properly charged as an adult because at the time of the crime, the defendant was a 16-year-old charged as "an accomplice in an armed robbery and murder." That at the time the defendant was charged in 2012, the law required "automatic transfer to adult court for the offense of First Degree Murder." The State argued that the amendment filed by the defendant which articulated a portion of the sentencing law was the result of "a change that has occurred in the law since [the sentencing]" and was not the law at the time.
¶ 33 The defendant argued that he was not properly sentenced as an adult on the armed robbery charge that he pleaded to because "although he was charged with a Murder as an adult which was an automatic certification, there was not automatic certification on the Armed Robbery to which he eventually pled guilty, thus there is a lack of either subject matter jurisdiction or jurisdiction of this Court to allow him to plead that and therefore it is an ineffective plea and it's not valid."
¶ 34 In response, the State argued that regarding "the Armed Robbery automatic transfer, it is clear that the law stated at the time that if there was a charge such as First Degree Murder that was automatic transfer that the Armed Robbery that's attached to the same act could have been transferred as well. Therefore, no separate certification hearing would have been needed." It then argued that, ultimately, whether the statute was applicable was irrelevant because the adult sentencing was completed pursuant to plea negotiations. Therefore, at the time of the plea any issue with jurisdiction was waived by the defendant.
¶ 35 The circuit court then found that the automatic transfer provision was applicable at that time and was properly applied to the defendant "because of the First Degree Murder charges." Additionally, "[t]he Armed Robbery was charged in the charging document" and "[i]t arose out of the same circumstances," thus, "although the charges that caused the automatic transfer were dismissed[,] the sentence on the Armed Robbery as an adult is still a proper sentence." The court then granted the State's motion and dismissed the sentencing issue.
¶ 36 The second issue argued was the defendant's claim of Mr. Griffin's ineffective assistance of counsel. The defendant argued that Mr. Griffin failed to do his due diligence in defending the defendant in that he failed to fully investigate all the facts and circumstances of case and failed to present a valid defense. Instead, Mr. Griffin merely "urged him to take this plea of guilty for the 20 years at only 85 percent rather than go to trial on the Armed Robbery and/or the Murder and/or whatever else he would have faced." Mr. Delaney then noted that the arguments were more fully stated in the briefs and transcripts and that the key fact the court should consider "is how young [the defendant] is and how minimal his prior record was."
¶ 37 The State argued that Mr. Griffin had no opportunity to prepare a valid defense because the defendant confessed to police his own involvement in the crime, and further all three of his codefendants implicated him as well. Therefore, the State contended that his likelihood of being convicted was high and that the plea offer and subsequent sentence Mr. Griffin obtained on behalf of the defendant was a "very good deal in this particular case."
¶ 38 The circuit court then denied the State's motion to dismiss as to the ineffective assistance of counsel claim and set the matter for a third stage hearing. On January 4, 2018, Donna Polinske (Ms. Polinske) was appointed to represent the defendant following Mr. Delaney's death.
¶ 39 On February 25, 2019, the circuit court conducted the third stage hearing. Ms. Polinske first called the defendant to testify. The defendant testified consistently with his petition that Mr. Griffin "was ineffective because he told [him] and basically forced [him] to plead guilty." He elaborated that Mr. Griffin was ineffective in that he advised him "to plead guilty to a crime that was never committed." The defendant argued, "No property was ever taken from this man and he was never beaten. This man died from a cause of a gunshot wound," and the defendant never shot him. He denied ever being told of the ramifications if he pleaded guilty. He denied that Mr. Griffin ever explained what the State would have to prove to convict him or discussed the relevant law with him. He denied ever being shown or given any "discovery, police reports, anything pertaining to this case." He did state that Mr. Griffin met with him while he was in jail on two or three occasions. He testified that "Mr. Griffin advised me that I'll be pleading guilty to Armed Robbery with a firearm," but that he ended up pleading guilty to "Armed Robbery with a bludgeon." He testified that Mr. Griffin advised him that the plea offer was a good deal for him.
¶ 40 Ms. Polinske then inquired about the defendant's claims that Mr. Griffin was also ineffective in that he did not properly investigate his case. He testified that he possessed "statements and affidavits from my mother stating that she wanted to be present during my interrogation and for the detectives not to question me without her being present." He stated that Mr. Griffin should have used these to suppress his police statement. He testified that he only asked for his mother while being interrogated and did not ask for an attorney to be present. He also testified that he believed his statements to the police were not made voluntarily because the police promised "leniency in exchange for my cooperation" and he did not feel he received that because he "received 20 years at 85 percent." He further testified that Mr. Griffin failed to interview any of the other witnesses or his family.
¶ 41 He denied ever discussing with Mr. Griffin that he was charged as an adult versus being charged as a juvenile. The defendant denied ever being instructed as to "the difference between being adult court and juvenile court with respect to murder cases and Class X cases."
¶ 42 He then was asked by Ms. Polinske, "Is there anything else that you would like to add that Mr. Griffin failed to do in his representation of you?" The defendant replied, "No, ma'am. That's it."
¶ 43 On cross-examination, the defendant admitted to being present with the codefendants at the time the murder occurred. He denied going to the convenience store to "rob" an individual with his codefendants or telling the police this. He admitted he was aware that all the codefendants stated that he was there to rob the victim when he was murdered and that he understood they all would have testified against him at trial. He denied that Mr. Griffin ever spoke to him about whether he should plead guilty or go to trial. He then admitted that Mr. Griffin did meet with him while he was in custody three or four times.
¶ 44 The defendant testified that the circuit court judge went over the penalties when he was pleading guilty, about which charge he was pleading guilty to, and that he would get 20 years' incarceration to be served at 85%. He also testified that the court asked him if he had any questions and confirmed he understood what was occurring and the sentence he would receive.
¶ 45 Ms. Polinske then called the defendant's mother, Cynthia Taylor, to testify. Ms. Taylor testified that she went to the police station the day her son was arrested and asked to be present with him during his questioning. She denied ever speaking with Mr. Griffin. She denied being made aware of the status of her son's case and she denied knowing what he was pleading guilty to. She also denied being able to speak to the defendant while he was in custody.
¶ 46 The defense then rested, and the State called Mr. Griffin. He testified that he practices criminal and juvenile law and was appointed to represent the defendant. He testified that he visited the defendant "various times" while he was in custody and discussed his case. Specifically, Mr. Griffin testified that he explained "how the rules of accountability work in the State of Illinois *** how legal principles work in this situation *** if you participate in the planning and or the commission of the crime, then you can be held guilty as much as the shooter." He testified that he discussed with the defendant that the other codefendants had been charged in a similar manner and that all the codefendants that were charged implicated him in the crime. He discussed the defendant's police statement with him. He discussed the mandatory minimums of the charges with him. "I tried to explain to him that *** you're either not guilty or you're doing 35 plus ***. So I knew that if he were to take a plea bargain in this case, that he could serve some time, be out by his *** early 30's ***. But if he were found guilty, he was going to be spend most of his life in a penitentiary." He testified that he advised the defendant to take the plea offer. He testified that he recalled the defendant being admonished by the judge regarding what he was pleading guilty to and the sentencing that would result. He testified that because the minimum for the armed robbery with a firearm was 21 years, the State added a third charge with armed robbery with a bludgeon to get the sentence down to 20 years at 85%.
¶ 47 Ms. Polinske then cross-examined Mr. Griffin. Ms. Polinske inquired whether Mr. Griffin had any conversations with the defendant regarding if he pleaded to a Class X charge, like the armed robbery charge, it could potentially be handled in juvenile court. Mr. Griffin responded, "I recall having that conversation. I recall the State being opposed to him serving anything other than an adult sentence. It was part of the negotiations, as I recall." Mr. Griffin testified that he had been over to speak with the defendant regarding the deal "a couple of times" prior to them entering into it and that "it wasn't sprung on him." He testified that he did his best to explain to the defendant the reasons and details regarding the changes to his charges to allow him to receive the negotiated plea deal of 20 years.
¶ 48 On redirect examination, Mr. Griffin confirmed that the defendant being sentenced as an adult was part of the negotiated deal and that on the record the defendant waived any claim to jurisdiction in juvenile court.
¶ 49 In closing, Ms. Polinske reiterated the points of the defendant to the court, that he was not advised appropriately as to the plea he was accepting, that his attorney had not fully explained various aspects of the deal to him, that the attorney failed to file certain appropriate motions, and that if these had occurred a different outcome in this case may have occurred. She emphasized the defendant was "only 16 when this was committed. When he pled he was 18. But still a very young man and not familiar with the process as this was his first offense in court."
¶ 50 On November 13, 2019, Ms. Polinske filed a motion on behalf of the defendant to supplement the record. In the motion, she referenced People v. Othman, 2019 IL App (1st) 150823. Polinske stated that the case "provided, in part, that the Truth in Sentencing Act, as applied to a 17 year old defendant convicted of murder and juvenile defendants similarly situated, was unconstitutional under the Eighth Amendment prohibition against cruel and unusual punishment." She noted that the Othman court, in paragraph 107 of the decision, stated, "one of the required filters in sentencing juveniles is, and must be, their potential for rehabilitation; it is a different prism than the potential of adult defendants for rehabilitation." She further attached the decision to her motion for the court's review and convenience.
¶ 51 On January 21, 2020, she filed a Rule 651(c) certificate attesting that she had consulted with the defendant, examined the trial court file and report of proceedings, and made any amendments to the pro se postconviction that were necessary.
¶ 52 On January 24, 2020, the circuit court entered its order denying the defendant's postconviction petition. In its order, the court stated that it had "twice heard testimony on the allegations of ineffective assistance." That both the defendant and Mr. Griffin had testified at the motion to withdraw the plea and the postconviction hearing. The circuit court found that the defendant was not credible, stating:
"At both hearings the Court found Mr. Griffin's testimony to be believable. The same cannot be said for the Defendant. On numerous occasions, the Defendant has given completely contradictory answers under oath. Much of the Defendant's testimony at the third stage hearing is contradicted by his testimony at the hearing on the motion to withdraw plea. Additionally, the Defendant's testimony contradicts the record as a whole. Specifically, it is contradicted by the on-the-record discussion had before Judge Tognarelli weeks prior to the guilty plea wherein the terms of the plea were stated in open court, with the Defendant's family present; and the statements made by all parties during the plea of guilty."
¶ 53 The circuit court then articulated its ruling:
"The Court finds that Mr. Griffin discussed the terms of the plea with the Defendant on numerous occasions and with members of the Defendant's family, in the Defendant's presence, on at least one occasion; reviewed discovery materials with the Defendant; discussed and explained the concept of accountability with the Defendant and his family; and explained to the Defendant the ramifications and benefits of accepting the State's plea offer. *** The evidence and record presented fail to establish that Mr. Griffin's representation fell below an objective standard of reasonableness or that, but for Mr. Griffin's alleged ineffectiveness, the Defendant would have insisted on going to trial. The Court heard no evidence of a plausible defense, other than the Defendant's denial of having committed the crime (which denial itself is contradicted by Defendant's prior statements at the hearing on the motion to withdraw plea)."
¶ 54 On March 30, 2020, the defendant filed his notice of appeal.
¶ 55 II. ANALYSIS
¶ 56 On appeal, the defendant argues that this court should reverse the third stage denial of his postconviction petition and remand for further proceedings because his postconviction counsel rendered an unreasonable level of assistance under Illinois Supreme Court Rule 651(c). For the following reasons, we disagree and affirm the circuit court's third stage denial.
¶ 57 The Post-Conviction Hearing Act (Act) sets forth the procedural mechanism through which a defendant can claim that "in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2020). "The Act provides a three-stage process for the adjudication of postconviction petitions." People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 27.
¶ 58 As we have previously laid out in Hotwagner, 2015 IL App (5th) 130525, the applicable law to analyzing a claim of unreasonable level of assistance of counsel under Illinois Supreme Court Rule 651(c) is as follows:
"As previously indicated, '[a]n indigent defendant is entitled to appointed counsel in postconviction proceedings if the petition is not summarily dismissed as frivolous or patently without merit.' [Citation.] 'A defendant is entitled only to the level of assistance required by the Act, however, because the right to counsel is wholly statutory and is not mandated by the Constitution.' [Citation.] 'That assistance has been defined by [the supreme] court to mean a "reasonable" level of assistance.' [Citations.] ***
In People v. Albanese, 125 Ill.2d 100 (1988), the supreme court adopted the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), for determining whether a criminal defendant was denied effective assistance of trial counsel under both the state and federal constitutions. [Citation.] To succeed on a claim of ineffective assistance of counsel under the Strickland standard, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice. [Citations.] 'Further, in order for a defendant to establish that he suffered prejudice, he must show a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different.' [Citation.] 'Because a defendant must establish both a deficiency in counsel's performance and prejudice resulting from the alleged deficiency, failure to establish either proposition will be fatal to the claim.' [Citation.]
'Neither mistakes in strategy nor the fact that another attorney with the benefit of hindsight would have proceeded differently is sufficient to establish ineffective assistance
of counsel.' [Citation.] Additionally, a defendant 'cannot rely on speculation or conjecture to justify his claim of incompetent representation.' [Citation.] 'Counsel is presumed to know the law' [citation], and 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."' [Citation.]
Because trial counsel and postconviction counsel serve different roles, because a postconviction petitioner has 'already been stripped of the presumption of innocence,' and because the right to postconviction counsel is not constitutionally required, the reasonable level of assistance required under the Act is not coextensive with the level of assistance required under Strickland. [Citations.] The Act does 'not guarantee that [a petitioner] will receive the same level of assistance that the Constitution guarantees to defendants at trial.' [Citations.] 'Strickland is thus not applicable' or at least 'not automatically applicable' to claims that postconviction counsel's assistance was less than reasonable. [Citation.] It has been suggested, however, that although Strickland 'is not the relevant standard' for addressing such claims, 'the Strickland test is an essential standard for comparison.' [Citation.] It further stands to reason that if postconviction counsel's performance cannot be deemed deficient under Strickland, it cannot be said that counsel failed to provide the reasonable level of assistance required under the Act." Id. ¶¶ 32-37.
¶ 59 To ensure such reasonable assistance, Illinois Supreme Court Rule 651(c) requires that postconviction counsel: (1) consult with the petitioner to ascertain his constitutional claims, (2) examine the record of the trial court proceedings, and (3) make any amendments to the pro se petition necessary to adequately present the petitioner's claims. Ill. S.Ct. R. 651(c) (July 1, 2017). "Compliance with Rule 651(c) is mandatory [citation], and may be shown by a certificate filed by the petitioner's attorney [citation]." People v. Perkins, 229 Ill.2d 34, 50 (2007). "[W]hen an attorney files a certificate under Rule 651(c), the attorney is officially representing to the court that the duties listed in the certificate have been fulfilled." Id. That certificate is not conclusive proof that the attorney actually complied; instead, it creates a presumption of compliance that can be rebutted by a showing on the record that counsel did not satisfy the obligations imposed by Rule 615(c). Id. at 51-53. Whether postconviction counsel rendered reasonable assistance under Rule 651(c) is subject to de novo review. Id. at 41.
¶ 60 Both Mr. Delaney and Ms. Polinske filed Rule 651(c) certificates attesting that they satisfied the requirements set forth in that rule, thus, we proceed with a presumption of compliance. Additionally, the defendant only challenges postconviction counsel's meeting of the third requirement, which is that counsel make amendments necessary for adequate representation of the petitioner's contentions.
¶ 61 The defendant in his brief makes various broad statements regarding issues that occurred throughout the legal proceedings relating to the above matter, especially those issues relating to Mr. Griffin's representation. Therefore, it is important that we reiterate that Mr. Griffin's alleged ineffective representation is not before this court, only the reasonableness of postconviction counsel's representation currently sits before us.
¶ 62 The defendant broadly states that postconviction counsel's failure "to provide evidentiary support for a claim in [the defendant]'s petition constituted unreasonable assistance"; however, the defendant never articulates the specific evidence that was not included, what issue that evidence related to, or how that evidence would have changed the outcome of the case. The defendant also broadly states that Mr. Griffin persuaded the defendant "to take a plea without adequately investigating mitigating circumstances." Again, the defendant fails to articulate any specific argument as to what postconviction counsel failed to amend or argue regarding this issue, instead focusing on what plea counsel should have done. Ultimately, these issues, to the extent the defendant intends to raise them, are forfeited because he fails to formally argue them or supply this court with any relevant law. See Ill. S.Ct. R. 341(h) (eff. Oct. 1, 2020) (argument must contain the contentions of the appellant, the reasons therefor, and the citation of authorities; points not argued in an opening brief are forfeited).
¶ 63 Additionally, to the extent that the defendant is attempting to argue that the postconviction counsel failed to put forth or argue the issues as stated by the defendant in his postconviction petition, excluding the Miller and its progeny-derived claims, we disagree. As indicated by the trial court on the record during the second-stage proceedings:
"[Mr. Delaney] has presented every issue that you wanted presented. The fact that you should have never been charged as an adult, that's in the Petition. You filed it in writing. He adopted it. He filed a formal motion adopting that filing.
So that issue is of record. The fact that he pled guilty to one offense that wasn't included in the automatic transfer statute and for that reason you believe you shouldn't have been sentenced as an adult. That issue is in the Post-Conviction Petition that's before the Court.
The fact that you allege Mr. Griffin was ineffective for various reasons, all of those issue are in the Post-Conviction Petition presented before the Court."
¶ 64 The record clearly demonstrates that both Mr. Delaney and Ms. Polinske argued the points as articulated by the defendant in his postconviction petition. Additionally, the defendant testified during the third-stage proceedings before the circuit court and was able to expand upon his allegations. At the end of Ms. Polinske's direct examination of the defendant he was asked, "Is there anything else that you would like to add that Mr. Griffin failed to do in his representation of you?" The defendant replied, "No, ma'am. That's it." Thus, this court finds that the complaints as articulated by the defendant in his postconviction petition were properly argued and placed before the circuit court for consideration.
¶ 65 We now turn our attention to the defendant's two central contentions: that the defendant's postconviction counsel failed to amend and argue (1) that the defendant's 20-year sentence was not valid because it was only obtained using the "threat" of "constitutionally vulnerable" minimum sentences for the original charges against him, and (2) that the defendant's plea counsel rendered to him ineffective assistance of counsel because plea counsel failed to recognize and advise him that Miller and its progeny rendered the minimum sentences of his original charges unconstitutional as applied to him.
¶ 66 It is well settled that postconviction counsel is not obligated to amend a postconviction petition to pursue claims that lack merit or to "advance frivolous or spurious claims on defendant's behalf." People v. Pendleton, 223 Ill.2d 458, 472 (2006). "[C]ounsel is not required to raise losing arguments to avoid an ineffective-assistance claim." (Internal quotation marks omitted.) Hotwagner, 2015 IL App (5th) 130525, ¶ 39. Further, at any stage, postconviction counsel only has the duty to present the claims that were raised by the defendant. People v. Turner, 187 Ill.2d 406, 410 (1999); Ill. S.Ct. R. 651(c) (eff. July 1, 2017) (counsel must only make amendments "that are necessary for an adequate presentation of petitioner's contentions" (emphasis added)).
¶ 67 The parties in their briefs argue whether the defendant's general contentions as stated in the defendant's postconviction petition encompass or invoke the Miller and its progeny-derived claims so that postconviction counsel would have a duty to amend and argue these points as a part of the defendant's postconviction contentions. It is the State's contention that the claims are new claims not raised in the postconviction petition, and therefore, the postconviction counsel were not required to amend the postconviction petition to add them. See People v. Rials, 345 Ill.App.3d 636, 641-42 (2003) ("[P]ostconviction counsel is not required to comb the record for issues not raised in the defendant's pro se post-conviction petition." (Internal quotation marks omitted.)). The defendant contends that the general argument that Mr. Griffin's legal assistance was deficient, that his 20-year sentence as an adult is invalid, and that the court failed to consider his youth and capacity for rehabilitation would encompass the claims and require postconviction counsel to flesh out Miller and its progeny for the circuit court.
¶ 68 Ultimately, this court finds that both contentions that the defendant claims postconviction counsel were required to amend lack merit for the reasons stated below. Thus, whether the postconviction counsel had a duty to amend to add these claims is irrelevant and any failure of postconviction counsel to amend to add those claims does not constitute unreasonable representation as the defendant cannot fulfill the prejudice prong under Strickland.
¶ 69 We now turn to the merits of the defendant's contentions, beginning with discussion of the legal landscape at the time the defendant negotiated and accepted his plea offer. The line of United States Supreme Court cases, specifically, Roper, Graham, and Miller, all were issued prior to the defendant's plea and were controlling law. Both of defendant's arguments are premised on this line of case law.
"In Roper, the Supreme Court held the eighth amendment bars capital punishment for juvenile offenders. Roper, 543 U.S. at 568. According to the Court, '[b]ecause the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force.' Roper, 543 U.S. at 568. In Graham, the Court held a sentence of life without the possibility of parole violates the eighth amendment when imposed on juvenile offenders for crimes other than homicide. Graham, 560 U.S. at___, 130 S.Ct. at 2034. The Court stated although '[t]he Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for
life,' '[i]t does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.' Graham, 560 U.S. at___, 130 S.Ct. at 2030. In Miller, the Court held the eighth amendment prohibits 'a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,' even those convicted of homicide offenses. Miller, 567 U.S. at___, 132 S.Ct. at 2469. According to the Court, '[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.' Miller, 567 U.S. at___, 132 S.Ct. at 2469." People v. Pacheco, 2013 IL App (4th) 110409, ¶ 49.
¶ 70 It is the defendant's central contentions on appeal that this line of case law, when taken together, supports a finding (1) that the defendant's 20-year-sentence violated the eighth amendment and (2) that the minimum sentences that the defendant originally faced were "constitutionally vulnerable."
¶ 71 As to the issue of the validity of the defendant's 20-year negotiated plea agreement, we find that this argument lacks merit and any failure to raise it is not grounds for a finding of unreasonable representation on the part of the defendant's postconviction counsel.
¶ 72 The defendant argues that his 20-year sentence as an adult fails to account for his juvenile age, potential for rehabilitation, and demonstration of good behavior in violation of the eighth amendment of the United States Constitution. We disagree.
¶ 73 The defendant fails to recognize the importance of the fact that his 20-year sentence was only obtained through a negotiated plea agreement. The defendant was charged with first degree murder and armed robbery with a firearm. He eventually pleaded guilty to a lesser offense, armed robbery with a bludgeon. This acceptance of a negotiated plea agreement allowed the defendant to avoid trial and a minimum of 35 years in prison to be served at 100% if he was found guilty as to the first degree murder charge under the law at that time.
¶ 74 On the record during his guilty plea and subsequent sentencing, the defendant acknowledged his understanding of the agreement, that he had conferred with his counsel and his family, and that he was aware of the resulting sentence and repercussions for agreeing to the plea agreement. The circuit court went so far as to outline on the record his original charges, the related minimum sentences of those charges, its understanding of the plea agreement (that the first degree murder charge would be dropped and armed robbery with a firearm charge would be amended to be armed robbery with a bludgeon to which the defendant would plead guilty), and what the result would be if the defendant accepted that plea agreement. Further, the defendant, on the record, waived any jurisdictional issues as to him being charged as an adult as a part of the plea deal. The circuit court accepted the plea agreement and sentenced the defendant accordingly while acknowledging his young age and his lack of a significant criminal history.
¶ 75 The defendant now argues that the 20-year sentence runs afoul of Miller and its progeny. The Illinois Supreme Court recently spoke on this issue in People v. Jones, 2021 IL 126432. The Jones court found that a juvenile defendant's knowing and voluntary agreement to a plea offer precluded him from raising any subsequent claims under Miller. The Jones court found that "[b]y entering a plea agreement, a defendant 'forecloses any claim of error."' "It is well established that a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including constitutional ones." '" (Emphasis in original.) Id. ¶ 20 (quoting People v. Sophanavong, 2020 IL 124337, ¶ 33, quoting People v. Townsell, 209 Ill.2d 543, 545 (2004))." '[A] classic guilty plea permits a defendant to gain a present benefit in return for the risk that he may have to [forgo] future favorable legal developments.'" Id. ¶ 21 (quoting Dingle v. Stevenson, 840 F.3d 171 (4th Cir. 2016)). The Jones court reiterated:
" '[T]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents [citation], a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.'" (Emphasis in original.) Id. ¶ 23 (quoting Brady v. United States, 397 U.S. 742, 757 (1970)).
¶ 76 Therefore, because there are no allegations of misrepresentation by the State, and because the statutory scheme at the time of the defendant's plea which he now alleges is constitutionally invalid was never applied to him because he forewent trial and accepted a plea agreement, he is foreclosed from arguing a Miller claim against its validity.
¶ 77 We do note for the sake of clarity that even if we were to examine the sentence under the Miller decision and its progeny, we would not find it to be constitutionally invalid. "[T]o prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence." People v. Buffer, 2019 IL 122327, ¶ 27.
¶ 78 Here, the defendant was sentenced to 20 years to be served at 85%, or approximately 17 years. While lengthy, this sentence falls well short of the 41-year line drawn by the Illinois Supreme Court in Buffer that would constitute a de facto life sentence. Further, the defendant would have difficulty demonstrating that the circuit court failed to consider his youth and its attendant characteristics. As discussed in Jones, the circuit court was not required to accept the parties' fully negotiated plea agreement. "If the judge had found the factual predicate for the plea insufficient, found the defendant's entry of his plea to be involuntary or unintelligent, or determined that the stipulated *** sentence was excessive under the facts and circumstances of the case, the court could have declined to accept the plea." Jones, 2021 IL 126432, ¶ 27. "Because the trial court had the option to accept or reject the plea agreement offered by the parties, its decision necessarily constituted an exercise of its discretion." Id.
¶ 79 Additionally, the defendant's claim that his sentencing as an adult was improper is also incorrect. Illinois courts have regularly held that automatic transfer statutes and imposition of an adult sentences to be constitutional. See People v. Salas, 2011 IL App (1st) 091880, and Pacheco, 2013 IL App (4th) 110409.
¶ 80 The defendant next argues that his postconviction counsel should have amended his petition to argue that Mr. Griffin's failure to advise him that the statutory minimums of his original charges, first degree murder with a firearm enhancement (35 years) and armed robbery (6 years), were "subject to attack on Miller-based constitutional grounds." As this court understands the defendant's position as to this issue, the defendant claims that postconviction counsel provided unreasonable assistance to the defendant on his postconviction petition because they failed to amend his petition and argue that Mr. Griffin failed to inform the defendant that Miller and its progeny may eventually lead to the minimum sentences that the defendant was facing being rendered unconstitutional or at least leave them open to "constitutional attack." We disagree.
¶ 81 First, as previously stated, postconviction counsel only has the duty to present the claims that were raised by the defendant. People v. Turner, 187 Ill.2d 406, 410 (1999); Ill. S.Ct. R. 651(c) (eff. July 1, 2017) (counsel must only make amendments "that are necessary for an adequate representation of petitioner's contentions" (emphasis added)). Because we find that the defendant failed to assert this argument in his postconviction petition or to articulate it at any time during the proceedings, we find that the postconviction counsel did not have to amend his petition to include a new argument. See Rials, 345 Ill.App.3d at 641-42 ("[P]ostconviction counsel is not required to comb the record for issues not raised in the defendant's pro se post-conviction petition." (Internal quotation marks omitted.)).
¶ 82 Second, a defendant "cannot rely on speculation or conjecture to justify his claim of incompetent representation." (Internal quotation marks omitted.) Hotwagner, 2015 IL App (5th) 130525, ¶ 35. Here, the defendant is arguing that his postconviction counsel should have argued that he received ineffective assistance of counsel from Mr. Griffin because Mr. Griffin failed to realize that five years after he recommended the defendant accept a plea offer, in 2019, the Illinois Supreme Court would decide Buffer, 2019 IL 122327, and bring into law the concept of a "de facto life sentence." It is impossible for an attorney to know exactly how future courts might develop a specific issue. For an attorney to speculate as to how courts may decide issues in the future and advise a client to forego a plea offer based upon a possible trend in the law may rise to the level of legal malpractice. Further, the defendant insinuates that Mr. Griffin was unaware of the Miller and its progeny case law based upon his failure to discuss it during his representation of the defendant. However, the defendant's postconviction counsel would have had to make an argument based upon speculation to bring that claim, as there was no evidence that Mr. Griffin was unaware. It would also require this court to overlook the general presumption that attorneys know and understand the law.
¶ 83 At the time of the plea counsel's representation of the defendant, Miller and its progeny existed, but they did not address the situation that the defendant found himself in. The defendant was not facing a death sentence as addressed in Roper, or subject to a life sentence (as defined at that time), as in Miller and Graham. Buffer would not exist for another five years following the defendant's guilty plea, and as we have discussed above, even that would not have rendered the defendant's sentence invalid.
¶ 84 Instead, we find that Mr. Griffin was likely aware of People v. Pacheco, which held:
"The Supreme Court did not hold in Roper, Graham, or Miller the eighth amendment prohibits a juvenile defendant from being subject to the same mandatory minimum sentence as an adult, unless the mandatory minimum sentence was death or life in prison without the possibility of parole. Defendant was sentenced to neither of these. The minimum 20-year term defendant faced in this case does not compare with the death penalty or a mandatory term of life in prison without the possibility of parole. The sentencing range applicable to defendant in this case is not unconstitutional pursuant to Roper, Graham, and Miller, and the sentence defendant received violated neither the eighth amendment nor the proportionate penalties clause." Pacheco, 2013 IL App (4th) 110409, ¶ 58.
¶ 85 Thus, considering the standing of the Illinois case law at the time Mr. Griffin represented the defendant, it was appropriate and reasonable for Mr. Griffin to recommend the defendant enter into a plea agreement in which he would receive nearly half of what appeared to be his minimum sentence if convicted. We cannot find that representation to be deficient and postconviction counsels' decision not to amend to add a meritless claim cannot constitute unreasonable assistance of counsel while representing a defendant during postconviction proceedings.
¶ 86 Therefore, because the defendant's Miller and its progeny-derived arguments lack merit, the defendant's contention that any amendments, arguments, or further investigation by his postconviction counsel would have altered the circuit court's finding is speculation that is insufficient to establish prejudice under Strickland. People v. Bew, 228 Ill.2d 122, 135 (2008) ("Strickland requires actual prejudice be shown, not mere speculation as to prejudice.").
¶ 87 III. CONCLUSION
¶ 88 For the foregoing reasons, we affirm the order of the circuit court of Madison County that denied the defendant's postconviction petition.
¶ 89 Affirmed.