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People v. Cotto

Court of Appeals of Illinois, First District, Third Division

February 11, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JESUS COTTO, Defendant-Appellant

Appeal from the Circuit Court of Cook County. No. 08 CR 5917. Honorable Shelley Sutker-Dermer, Judge Presiding.

SYLLABUS

The second-stage dismissal of defendant's postconviction petition was affirmed, despite defendant's contentions that his privately retained postconviction counsel did not provide him with reasonable assistance because he failed to contest the State's assertion that the petition was untimely due to his culpable negligence and that his case should be remanded for a new second-stage hearing with different counsel, since defendant failed to explain what additional steps should have been take to overcome the late filing.

Michael J. Pelletier, Alan D. Goldberg, and Carson R. Griffis, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Joan F. Frazier, and Joseph A. Alexander, Assistant State's Attorneys, of counsel), for the People.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Justice Hyman concurred in the judgment and opinion. Presiding Justice Pucinski dissented in the judgment and opinion.

OPINION

LAVIN, J.

[¶1] Defendant Jesus Cotto appeals the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that his privately retained postconviction counsel did not provide him reasonable assistance because he failed to contest the State's assertion that his petition was untimely due to his culpable negligence. As a remedy, defendant requests that his case be remanded for new second-stage proceedings with different counsel.

[¶2] Following a bench trial in September 2008, defendant was found guilty of armed robbery. Based on his prior felony convictions for armed robbery and aggravated vehicular hijacking with a weapon, he was sentenced as an habitual criminal to natural life imprisonment. This court affirmed that judgment on direct appeal. People v. Cotto, No. 1-08-3031, [published in table format at 391 Ill.App.3d 1116, 982 N.E.2d 987,

Page 236

367 Ill.Dec. 837] (2009) (unpublished order under Supreme Court Rule 23).

[¶3] On September 28, 2011, defendant filed the instant postconviction petition through retained counsel. In his petition, defendant made numerous claims of ineffective assistance of counsel at trial and on direct appeal.[1] He alleged, inter alia, that counsel failed to adequately prepare him for trial; failed to communicate with him and his family throughout the trial and appeals process; and failed to mail him a copy of this court's decision on direct appeal for more than 30 days after it was issued.

[¶4] In support of the petition, defendant attached affidavits from his brother and mother, who averred, in relevant part, that counsel failed to communicate with them throughout the trial and on appeal, and failed to inform them about defendant's conviction and the decision on direct appeal until more than 30 days after issuance. Defendant also attached a copy of an envelope from counsel addressed to defendant's mother, postmarked September 4, 2009, and his own affidavit corroborating the allegations in his petition.

[¶5] On November 18, 2011, the circuit court docketed defendant's petition for second-stage proceedings. On March, 30, 2012, the State moved to dismiss it, arguing, inter alia, that it was untimely filed. The State noted that the petition was filed more than six months after the appellate decision was issued and that defendant had failed to present facts to suggest that the untimely filing was not due to his culpable negligence.[2] The State also asserted that defendant's substantive claims were barred by res judicata and waiver; that the petition consisted of unsupported, conclusory ...


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