Appeal from the Circuit Court of Cook County. No. 97 CR 21326 Honorable Charles P. Burns, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice Cahill concurred in the judgment and opinion.
Justice R. E. Gordon dissented, with opinion.
¶ 1 Defendant Lorenzo Jones appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). The defendant contends post-conviction counsel failed to comply with Supreme Court Rule 651(c) (eff. Dec. 1, 1984). He also contends his petition raised a substantial question regarding appellate counsel's performance when counsel failed to raise on direct appeal prosecutorial misconduct and trial counsel's deficient performance based on his failure to object to certain testimony and the State's closing argument. Appellate counsel, instead, filed a motion to withdraw, with a supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), which we granted. People v. Jones, No. 1--99--0163 (2000) (unpublished order under Supreme Court Rule 23). On our de novo review of the instant appeal, we affirm.
¶ 3 At the jury trial, the evidence established that the defendant fatally shot Jose Oquendo and fled to Mexico in the deceased's van. We quote from our original decision affirming the defendant's conviction and sentence.
"In this case, the victim, Jose Oquendo, died from a gunshot wound to his head. The evidence showed that the victim and defendant had been friends and defendant owed the victim a $1,500 gambling debt. On May 28, 1997, defendant shot the victim while sitting in the victim's van. Defendant then went to the victim's home, borrowed $10 from the victim's wife after propositioning her for sex, threw the gun into the river and dumped the body in an alley. He then drove the van to Mexico, where he sold it for $200. Defendant then relocated to Texas, where he remained until June 27, . After speaking with his mother on that date, defendant learned that the police were looking for him in Chicago, and he surrendered to police in Camaron County, Texas. Defendant gave four versions of the events leading up to the victim's death, including his trial testimony." Jones, order at 2-3.
¶ 4 We add the following to give context to the defendant's ineffectiveness of counsel claims. Maria Oquendo, the deceased's widow, described her family including the children's names and ages, and identified a photograph depicting the deceased with their youngest child. She confirmed the deceased and the defendant were close friends. The defendant spent time at the Oquendo home and played with the Oquendo children. The men played cards on a monthly basis. The State elicited testimony from Maria regarding the deceased's last day. When the deceased left for work, he told Maria that he loved her. Later that day, she received a pager message that, when turned upside down, resembled the Spanish word for "kiss." According to Maria, the deceased paged her during the day because the family did not have a phone.
¶ 5 The State published the defendant's inculpatory statements that he shot the deceased in the back of the head and drove to Mexico in the deceased's van.
¶ 6 The defendant testified on his own behalf. He claimed the deceased threatened to kill him over the gambling debt, which prompted him to bring a gun to work. The defendant explained that after pointing the gun at the victim's head, he changed his mind about hurting his friend, but the gun accidently fired. He denied pulling the trigger.
¶ 7 During its opening closing argument, the State argued that the deceased's death was no accident and the defendant should receive no sympathy.
"ASA MILLEVILLE: One person we can feel sorry for is Jose Oquendo. He's not here. He's not here to live, is not here to breathe, he's not a part of this world. You can feel sorry for his wife, his widow. Feel sorry for his son, who will grow up not knowing his daddy.
DEFENSE COUNSEL: Objection your Honor. THE COURT: Overruled.
ASA MILLEVILLE: This is [the deceased's] only day. It's his family's only day. Their only day for justice. Their only day for you to do the right thing. DEFENSE COUNSEL: Objection.
¶ 8 The defense argued to the jury that the gun went off accidently and that the defendant would have to live the rest of his life with the knowledge he was responsible for his friend's accidental death. In its rebuttal, the State dismissed the defendant's assertion that the shooting was an accident and asked the jury to hold the defendant responsible for his actions. Ultimately, the jury convicted the defendant of first degree murder and of possession of a stolen motor vehicle.
¶ 9 On direct appeal, appellate counsel filed an Anders motion. The defendant filed a response in which he contended "that the prosecutor's comments during closing arguments denied him a fair trial." Jones, order at 1. We undertook an independent review of the record with the respective filings by appellate counsel and the defendant in mind. We examined the defendant's unfair trial claim under a plain error analysis. We concluded plain error relief was not warranted because "the evidence was not closely balanced nor was the error of such magnitude to deny defendant a fair trial." Jones, order at 4. We granted counsel's motion to withdraw. Jones, order at 5.
¶ 10 In 2002, the defendant filed a pro se petition for post-conviction relief alleging that he was denied effective assistance of trial counsel by counsel's failure to file a motion to suppress evidence and counsel's failure to object to the State's closing argument. The petition also alleged ineffective assistance of appellate counsel when the State's misconduct was not challenged on direct appeal.
¶ 11 The trial court summarily dismissed the petition as untimely. This court reversed, and remanded for second-stage proceedings because "a circuit court may not summarily dismiss a post-conviction petition solely on the basis that it was not filed within the time limits of section 122--1(c) of the Post-Conviction Hearing Act." People v. Jones, No. 1--02--2435, order at 1 (2004) (unpublished order under Supreme Court Rule 23) (citing People v. Boclair, 202 Ill. 2d 89, 99 (2002)).
¶ 12 In October 2005, the defendant filed a pro se amendment to his 2002 post-conviction petition alleging the State sought to inflame and prejudice the jury against the defendant, which denied him a fair trial. Specifically, the defendant highlighted comments regarding the deceased's family, including the ages of his children, as well as the prosecutor's statement that the trial was the day for the victim's family to receive justice. The petition alleged trial counsel failed to file a motion to suppress, the trial court erred by overruling defense objections to certain testimony, and appellate counsel was ineffective when counsel failed to raise these trial errors on appeal.
¶ 13 The record indicates the defendant filed a pro se amended post-conviction petition in November 2005 alleging the trial court erred when, inter alia, it permitted the State to make comments that inflamed the jury's passions. The petition also claimed trial counsel was ineffective when, among other errors, he did not object to certain testimony; the petition claimed appellate counsel was ineffective when counsel failed to raise these trial errors on direct appeal.
¶ 14 The defendant filed two more supplemental pro se post-conviction petitions, in August and September 2006. These petitions realleged the same claims from his earlier petitions.
¶ 15 In December 2008, counsel filed a certificate pursuant to Supreme Court Rule 651(c), showing that he had consulted with the defendant and reviewed the trial record. Counsel also asserted no amendments were necessary because the original pro se petition filed in February 2002 and the amended pro se petition filed in October 2005 adequately set forth the defendant's claims. The State filed a motion to dismiss, which the trial court granted. The defendant appealed.
¶ 17 The defendant raises two issues on appeal. He contends post-conviction counsel failed to comply with Rule 651(c) and he contends his post-conviction petitions raised a substantial question of ineffective assistance of counsel.
¶ 19 We first consider the defendant's claim that post-conviction counsel failed to comply with Rule 651(c) because, according to his brief, counsel failed "to examine three pro se amended petitions filed during the proceedings." Specifically, he contends counsel did not examine the pro se petitions filed in November 2005, August 2006, and September 2006. Our review of compliance with a supreme court rule is de novo, which is also the standard to review a second-stage dismissal of a post-conviction petition. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
¶ 20 Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) imposes three duties on appointed post-conviction counsel. Pursuant to the rule, the record or the filed certificate must "disclose that post-conviction trial counsel: (1) consulted with petitioner to ascertain his contentions of constitutional deprivations; (2) examined the record of the proceedings of the original trial; and
(3) made any amendments to the pro se petition necessary to adequately present the petitioner's constitutional contentions." People v. Johnson, 154 Ill. 2d 227, 238 (1993).
¶ 21 "There is no constitutional right to the assistance of counsel in post-conviction proceedings; the right to counsel is wholly statutory (see 725 ILCS 5/122--4 (West 2000)), and petitioners are only entitled to the level of assistance provided by the Post-Conviction Hearing Act." Suarez, 224 Ill. 2d at 42. The Act provides only reasonable assistance. Id.
¶ 22 Here, counsel filed a certificate pursuant to Rule 651(c), asserting he consulted with the defendant, examined the trial transcript, and found the defendant's constitutional contentions were adequately presented in the pro se petitions filed in 2002 and October 2005.
¶ 23 The filing of a Rule 651(c) certificate gives rise to a presumption that post-conviction counsel provided reasonable assistance during second-stage proceedings under the Act. See People v. Rossi, 387 Ill. App. 3d 1054, 1060 (2009) (upon the filing of a certificate in accordance with Rule 651(c), the presumption exists that post-conviction counsel "adequately investigated, amended and properly presented those claims contained within petitioner's successive post-conviction petition"). It falls on the defendant to overcome that presumption by demonstrating counsel's failure to substantially comply with the duties mandated by Rule 651(c). See People v. Richardson, 382 Ill. App. 3d 248, 257 (2008) ("counsel substantially complied with her specific duties under Rule 651(c)").
¶ 24 We find no authority for the defendant's assertion in his brief that because the certificate filed pursuant to Rule 651(c) did not mention all of the pro se petitions filed by the defendant, it follows that post-conviction "counsel failed to review all of Lorenzo Jones' pro se post-conviction claims." See People v. Turner, 187 Ill. 2d 406, 411 (1999) (defendant's contention that post-conviction counsel failed to examine the record of the proceedings at trial because "transcripts for five dates *** were not included in the record on appeal" rejected where no showing was made that support for the defendant's constitutional claims existed in the missing transcripts). There is nothing in Rule 651(c) that suggests the certificate is intended to be a comprehensive recounting of all of post-conviction counsel's efforts. Nor does the defendant point to one of the duties imposed by Rule 651(c) that post-conviction counsel failed to fulfill in order to undermine the presumption of compliance. See Richardson, 382 Ill. App. 3d at 258 ("We also reject Richardson's fall-back argument that the presumption of compliance based on the filing of a certificate is overcome here.").
¶ 25 Most importantly, the defendant does not assert that the amended petitions, omitted from mention in the certificate, raised constitutional claims not considered by the circuit court in its ruling that the pro se petitions of February 2002 and October 2005 were subject to dismissal. In other words, he does not argue before us that a substantial question of a violation of the defendant's constitutional rights was raised in any of the "three pro se amended petitions filed during the proceedings" not mentioned in the Rule 651(c) certificate. This fact alone is fatal to the defendant's claim that post-conviction counsel rendered unreasonable assistance under the circumstances of this case. See Turner, 187 Ill. 2d at 412 ("To require counsel to examine portions of the record which have no relevance to petitioner's claims would be an exercise in futility.").
¶ 26 This court will not presume that post-conviction counsel failed to read or consider the contents of the defendant's multiple, repetitious pro se pleadings simply because counsel failed to mention them explicitly in the Rule 651(c) certificate. Nor will we conclude that post-conviction counsel's efforts fell below the reasonable level of assistance mandated by the Act when the defendant fails to disclose a single claim from the three pro se petitions not mentioned in the Rule 651(c) certificate that should have been added to the petitions from 2002 and October 2005, but was not. We ...