Court of Appeals of Illinois, First District, Fourth Division
Rehearing denied February 6, 2014
The second-stage dismissal of defendant's postconviction petition was affirmed, notwithstanding defendant's contentions that his private counsel, who had also represented defendant on his direct appeal, failed to provide a reasonable level of assistance and did not comply with Supreme Court Rule 651(c), since Rule 651(c) does not apply when defendant has retained counsel, and private counsel's performance did not fall below the level of reasonable assistance.
Appeal from the Circuit Court of Cook County, No. 09-CR-3254(03); Review the Hon. James B. Linn, Judge, presiding.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Brett C. Zeeb, all of State Appeal Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Joan F. Frazier, and Margaret G. Lustig, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
¶1 Following a bench trial, defendant Alejandro Anguiano was found guilty of delivering more than 900 grams of cocaine and was sentenced to 15 years' imprisonment. We affirmed his conviction on direct appeal. People v. Anguiano, No. 1-10-0129 (2011) (unpublished order under Supreme Court Rule 23). He filed a counseled postconviction petition, which the circuit court dismissed at the second stage. Defendant argues on appeal that the private attorney who represented him both on direct appeal and in his postconviction proceedings failed to provide a reasonable level of assistance or comply with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013), where he failed to consult with defendant and raised precisely the same issue in both proceedings. We affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant and his codefendants–Alberto Hernandez, Jose Raul Calvillo, and Jose Moncada-Rodriguez–were charged with delivery of more than 900 grams of cocaine in violation of section 401(a)(2)(D) of the Illinois Controlled Substances Act. 720 ILCS 570/401(a)(2)(D) (West 2008). Defendant and Hernandez were tried in a joint bench trial.
¶ 4 A. Bench Trial
¶ 5 Undercover officer Gil Gutierrez testified that, on January 20, 2009, he and defendant discussed via telephone the sale of two kilograms of cocaine. At approximately 6:30 p.m., they met inside Gutierrez's truck at a Sam's Club parking lot in Countryside, Illinois. Gutierrez wore a covert listening device. During their conversation, Gutierrez displayed a "flash roll" of money, and defendant agreed to sell two kilograms of cocaine for $25, 000 per kilogram.
¶ 6 Defendant and Gutierrez spoke again via telephone at approximately 7 p.m. Minutes later, they met in Gutierrez's truck in a Burger King parking lot near Pulaski Avenue and I-55. After defendant made a telephone call, the two men drove to Pete's Fresh Market at 43rd Street and Pulaski Avenue. After defendant made several more calls, Calvillo arrived in a blue Ford Explorer and traded places with Anguiano. Hernandez soon arrived in a red Mitsubishi Eclipse and gave an orange bucket to Calvillo, who handed it to Gutierrez. Upon seeing two taped, brick-shaped objects in the orange bucket, Gutierrez exited his truck and gave an arrest signal. Additional officers arrived and arrested defendant and his codefendants. Defendant later gave an oral statement acknowledging he had arranged the sale of two kilograms of cocaine.
¶ 7 Surveillance officer and field supervisor Frank Spizziri also testified. His account was nearly identical to Gutierrez's. The parties stipulated to the weight, chemical composition, and chain of custody of the 2, 018 grams of cocaine recovered. Neither defendant nor Hernandez presented evidence. The court found defendant and Hernandez guilty of delivery of a controlled substance and sentenced defendant to the minimum 15-year term of imprisonment.
¶ 8 B. Direct Appeal
¶ 9 Defendant argued on appeal that his trial attorney was ineffective, where he failed to pursue a viable entrapment defense and failed to subject the prosecution's case to meaningful adversarial testing pursuant to United States v. Cronic, 466 U.S. 648 (1984). We held that defendant failed to "explain on appeal how the record indicates he was entrapped to commit the offense merely by the fact someone's cousin induced him to find buyers for cocaine." People v. Anguiano, No. 1-10-0129, slip op. at 11 (2011) (unpublished order under Supreme Court Rule 23). We further held that counsel was not ineffective under Cronic. Id. We therefore affirmed the trial court's judgment. Id.
¶ 10 C. Postconviction Petition
¶ 11 The private attorney who represented defendant on direct appeal also drafted and filed his postconviction petition. Defendant again argued that his trial attorney was ineffective in failing to mount a viable entrapment defense. He elaborated on the claim he set forth on direct appeal, arguing that an informant whom he knew as "Jose" encouraged him to quit his job and earn money by locating a drug supplier for Jose's cousin, Pablo. Jose gained defendant's trust by using cocaine with him, and defendant agreed to supply the drugs. To his pleading, defendant attached an affidavit Gutierrez submitted in seeking an eavesdropping order. In pertinent part, Gutierrez attested that a confidential source had told him that defendant was willing to sell six kilograms of cocaine for $21, 000 per kilogram and had arranged a meeting between Gutierrez and defendant.
¶ 12 The State moved to dismiss, arguing defendant's claim was barred by res judicata. At the hearing on the State's motion, postconviction counsel once again argued that trial counsel was ineffective, but emphasized that he was presenting Gutierrez's affidavit as new evidence of a viable entrapment defense. The circuit court agreed with the State and granted its motion to dismiss. Defendant timely appealed.
¶ 13 II. ANALYSIS
¶ 14 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) has three stages. At the first stage, the circuit court must independently review a petition within 90 days and dismiss petitions that are frivolous or patently without merit. People v. Hodges, 234 Ill.2d 1, 10 (2009). If the petition is not summarily dismissed, it is advanced to the second stage, where counsel is appointed and the State may respond. 725 ILCS 5/122-4, 122-5 (West 2012); People v. Edwards, 197 Ill.2d 239, 245-46 (2001). If the defendant makes a substantial showing of a constitutional violation at the second stage, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 2012); People v. Gaultney, 174 Ill.2d 410, 418-19 (1996).
¶ 15 The sixth amendment right to counsel does not extend to collateral appeals. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further."); see also Johnson v. Avery, 393 U.S. 483, 487-88 (1969) (federal and state courts have no general obligation to appoint counsel to prisoners seeking postconviction relief). Our legislature therefore created the Act with pro se defendants in mind. Albert E. Jenner, Jr., The Illinois Post-Conviction Hearing Act, 9 F.R.D. 347 (1949); see also People v. Slaughter, 39 Ill.2d 278, 285 (1968) ("it was anticipated that most of the petitions under the Act would be filed pro se by prisoners who had not had the aid of counsel in their preparation"). Even today, most postconviction petitions are drafted and filed pro se, and a defendant is only appointed counsel if his petition is advanced to the second stage. Hodges, 234 Ill.2d at 9 (most petitions are filed pro se); 725 ILCS 5/122-4 (West 2012) (counsel may be appointed at the second stage).
¶ 16 Defendants are not barred from hiring postconviction counsel, however, and since at least1969, Illinois courts have reviewed counseled initial postconviction petitions. See, e.g., People v. Mayfield, 42 Ill.2d 318, 319 (1969); People v. Gonzales, 43 Ill.2d 110, 111 (1969); People v. Weaver, 45 Ill.2d 136, 137 (1970). Counseled petitions still constitute a substantial minority of the pleadings filed under the ...