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People v. Dixon

Court of Appeals of Illinois, First District, Second Division

June 11, 2019

CHARLES DIXON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 99 CR 13829, Honorable Mary M. Brosnahan, Judge, presiding.

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


          HYMAN JUSTICE.

         ¶ 1 A self-represented criminal defendant should have access to the same trial materials as his or her counsel, with redactions required by law. That just principle underlies this case.

         ¶ 2 Charles Dixon filed a postconviction petition alleging a long list of constitutional violations that he claimed occurred at his trial. The trial court docketed his petition and appointed counsel. Extensive delay in the proceedings as well as postconviction counsel's decision to raise only two claims on Dixon's behalf eventually led Dixon to reluctantly seek to represent himself, which the trial court allowed. After lengthy litigation about Dixon's access to his trial attorney's file, the State moved to dismiss the petition, and the trial court granted its motion.

         ¶ 3 Dixon argues that the trial court erred when it allowed him to proceed pro se without access to his trial attorney's file. He contends that the trial court's denial of access rendered his waiver of postconviction counsel invalid. At oral argument, counsel confirmed Dixon's position that the trial court's denial of access to his trial counsel's file, regardless of the sufficiency of his waiver of postconviction counsel, constituted "reason alone for this court to remand for second stage proceedings." Also at oral argument, the State conceded that Dixon's trial counsel's file should be turned over to him after appropriate redactions. Dixon also presses two of the claims from his postconviction petition on the merits, arguing that he has made a substantial showing of his trial counsel's ineffectiveness.

         ¶ 4 Given the clarification of the parties' positions at oral argument, we no longer need to determine whether Dixon validly waived the assistance of postconviction counsel. Instead, we find, as the parties now agree, that depriving Dixon of his requested access to his trial counsel's file constitutes error. We reverse and remand for new second-stage proceedings.

         ¶ 5 Background

         ¶ 6 Twenty years ago, Charles Dixon went into Iona Feldman's shoe repair shop and beat him with a stick. Dixon took Feldman's wallet and left. About three months later, Feldman died from his injuries. Dixon was charged with, among other offenses, first degree murder and aggravated battery. Before trial, defense counsel filed a motion to suppress statements that Dixon had given to police based, in part, on a claim that the statements had been coerced when the police officers involved had "misadministered the dosages" of Dixon's pain medications, rendering the statements involuntary. At the motion hearing, two Chicago police detectives denied that they had given Dixon any medication. Trial counsel presented no witnesses and offered no argument. The trial court denied the motion.

         ¶ 7 The case proceeded to a jury trial. During opening statements, defense counsel made reference to the possibility that witnesses implicated Dixon only after "posters of a reward went up." Counsel presented no evidence of a reward. The jury found Dixon guilty of both murder and aggravated battery.

         ¶ 8 Trial counsel filed a motion for a new trial. Dissatisfied with trial counsel's representation, Dixon asked that counsel be discharged. The court granted Dixon's request and allowed him to represent himself.

         ¶ 9 Dixon then filed his own motion for a new trial, repeating many of the allegations in counsel's motion. Attached to Dixon's motion, however, was a document labeled "Petition for Post-Conviction Relief With Memorandum of Law." That document alleged ineffective assistance of trial counsel, including counsel's failure to present evidence at the hearing on the motion to suppress statements and counsel's failure to support, with evidence, the claim about a reward.

         ¶ 10 Because Dixon had yet to be sentenced, the trial court treated Dixon's "Post-Conviction" petition as an addendum to his motion for a new trial. The court held a hearing as provided in People v. Krankel, 102 Ill.2d 181 (1984), at which trial counsel testified. The trial court denied Dixon's motion for a new trial.

         ¶ 11 The trial court sentenced Dixon to consecutive prison terms of natural life for first degree murder and 30 years for aggravated battery. Dixon appealed.

         ¶ 12 On direct appeal, Dixon raised several issues, all aimed at the posttrial and sentencing proceedings. We agreed that his natural life and 30-year sentences should be modified to run concurrently, but otherwise affirmed the judgment. People v. Dixon, 366 Ill.App.3d 848, 856-57 (2006).

         ¶ 13 In September 2005, the direct appeal still pending, Dixon filed the postconviction petition now before us. His initial petition contained seven allegations of ineffective assistance of trial counsel and about 300 pages of exhibits. This petition appears nearly identical to the petition attached to Dixon's pro se motion for a new trial. After the mandate issued in the direct appeal, the trial court docketed the petition and appointed counsel.

         ¶ 14 Counsel first appeared in May 2007, and so began a lengthy series of continuances. By September 2009, counsel had read only the transcripts and indicated "a potential issue" to raise on Dixon's behalf. Counsel explained to the court that she "would like to take a look at [the trial file] before deciding exactly how to proceed with that particular issue" and asked for what became another series of continuances.

         ¶ 15 Counsel reported to the trial court in January 2010 that she had "gone through much of [the trial file]" and spoken with the original investigator on Dixon's case. Based on the conversation with the investigator, counsel needed to examine the trial file in greater depth.

         ¶ 16 Nothing more happened until April 2010. Counsel explained to the court that, in a phone call with Dixon, he had told her that he filed a motion to proceed pro se. The court had not received it and ordered Dixon to appear. On April 29, Dixon confirmed that he wished to represent himself.

         ¶ 17 The next day, the trial court allowed Dixon time to speak with his brother about his decision to represent himself and admonished Dixon on the perils of self-representation. The court learned that Dixon, 55 years old, had earned both a GED and associates degree. Dixon said that he was taking blood pressure and pain medications, and neither affected his ability to think clearly. Dixon denied ever receiving treatment or medication for mental health.

         ¶ 18 The trial court told Dixon that the public defender's office would be far better than he would be at navigating postconviction proceedings and conducting investigations. The court warned Dixon that, if he represented himself, it would not appoint investigators, order the Department of Corrections to grant him extra library time, or appoint standby counsel. Dixon, concerned about his access to the trial file and other documents, interjected:

"DIXON: Let me ask you one question. This is the question I want to ask you, like the trial attorney records, and all of that stuff that was supposed to have been used in my trial, I got a list of documents, police reports, general progress notes, stuff that they used, and stuff that the State used, will I get a chance to at least get that, because that['s] going to be-
THE COURT: I will have the Defense redact the reports that they have and I would get you copies of that. When I say redact, that means you don't get home addresses and phone numbers of witnesses or individuals.
[DIXON]: No, I don't need that. I just-[The report of proceedings attributes this statement to the Assistant Public Defender. We agree with the State's representation in its brief that, in context, Dixon spoke].
THE COURT: They get blacked out. The information that you can't have would be blacked out.
DIXON: But other than that, I get everything they got access to or had access to, right?
THE COURT: I don't know exactly what all those documents are, so possibly we would have to have a discussion about some of that. I don't know.
DIXON: Well, as long as I can get the documents and the stuff from the State, you know, I need that they get, any witnesses receive any special treatment for their testimony, you know, any time cuts.
THE COURT: Let's see what you are proceeding on. Is there already a document filed by Mr. Dixon?
DIXON: I got it right here. I didn't never get a chance because the law libary [sic] didn't call me over there to make copies.

         After a brief interruption where the parties discussed the case's procedural history, the court's colloquy with Dixon continued:

THE COURT: You are indicating you want to file an amended petition? All right. How much time do you need to get that on file?
DIXON: Well, I got to get the documents. Once I get the documents, I would imagine that the documents come right away, about four or five months, you know, given I got this neck problem.
THE COURT: All right. Here's what I'm going to do. Why don't I hold it over. Defense, how much time would it take for you to have your redacted documents together?
MS. PAHL: It would depend, [Y]our Honor, on exactly what documents. If Mr. Dixon already has the transcript, the common law record, I could-I have in my office from the appeal, I could redact that. That would be fairly simple.
The trial attorney's files, which I have examined in this case, are two very large boxes of documents. That would be an enormous project. I do not know if all of that would be relevant to all the claims.
THE COURT: All right. Well, first what I'm going to do is why don't you review your petition that you have on file, what it is you are looking for, and you can tell me what it is you want from them.
DIXON: Well, I really want all the stuff she just named. I got the stuff right here."

         The court ultimately told postconviction counsel to prepare a copy of the common law record and continued further discussion of discovery until the assigned assistant state's attorney (ASA) could be present "in case they have any objections" to the production of documents.

         ¶ 19 The trial court reminded Dixon that it was "a really bad decision" to represent himself, but concluded that he understood the consequences and granted the public defender's office leave to withdraw and allowed Dixon to proceed pro se.

         ¶ 20 In late May 2010, Dixon requested access to trial counsel's entire file, including police reports, lab reports, four of the State's trial exhibits, handwritten statements from three trial witnesses, and many other documents to which he claimed trial counsel had had access.

         ¶ 21 The State's response, relying on People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175 (1988), argued that Dixon had failed to show "good cause" for the discovery. The State characterized his request as "a wide ranging search to confirm mere speculation." During the hearing on the motion, the court asked Dixon to explain the relevancy of each request.

         ¶ 22 The court granted discovery of the general progress reports related to one witness's interview with police and of that witness's and two others' handwritten statements, but denied the remainder. As to trial counsel's file, the trial court found that the contents constituted work product and that there had been "nothing other than the possibility that it would lead [Dixon] in a direction to develop a postconviction, and again, that's not the scope of discovery. The discovery is an order to [shore] up a claim that you already have." The trial court denied Dixon's motion to reconsider.

         ¶ 23 About three-and-a-half years later, Dixon filed an amended postconviction petition, which the State moved to dismiss. The motion remained pending for more than a year. In all, Dixon's petition remained pending for 11 years from the date of the initial filing. During that time a host of factors contributed to the delay. Many continuances arose due to lengthy lockdowns at Dixon's Illinois Department of Corrections facility, resulting in limited access to the law library. The Departments of Corrections, both Illinois and Cook County, misplaced Dixon's legal materials at least twice. Dixon filed two motions for substitution of judge, both of which were denied. And, as we have outlined, the parties engaged in extensive litigation about Dixon's access to discovery materials.

         ¶ 24 Ultimately, the trial court dismissed Dixon's postconviction petition. Dixon sought reconsideration, which the trial court denied on January 20, 2016. That same day, Dixon filed his notice of appeal.

         ¶ 25 Analysis

         ¶ 26 Dixon's brief contends that "[t]he trial court erred when it granted Dixon's motion to proceed pro se at the second stage but then handicapped him by refusing to allow access to the documents used by the attorney who previously represented him." He spends the bulk of his argument claiming that the trial court's denial of access rendered his waiver of postconviction counsel invalid. He also argues, as an alternate theory, that the trial court's rulings that the trial file constituted discovery and work product "were erroneous." He claims that his counsel's file cannot be discovery because the contents had already been tendered and the file cannot be considered work product because it came from his own attorney. On either basis, he asks us to afford him full access his counsel's trial file and to remand for second-stage proceedings. Dixon does not oppose redactions as required by People v. Maldonado, 193 Ill.App.3d 1062, 1068 (1989) (allowing court to bar disclosure of new witness addresses to counsel where "substantial risk" of physical harm, intimidation, annoyance, or embarrassment outweighing usefulness of disclosure).

         ¶ 27 The State frames its response similarly. In the first part of its brief on this issue, the State argues that the trial court did not abuse its discretion by allowing Dixon to proceed pro se. In the second part, the State contends that "the [trial] court's decisions regarding discovery were correct" because the trial file constituted discovery or was otherwise protected by the work-product doctrine. Because of the State's position that the trial file constituted discovery, the State argued that Dixon had failed to show "good cause" for receiving the file.

         ¶ 28 The trial court offered two reasons for denying Dixon access to his trial counsel's file: (i) Dixon had shown "nothing other than the possibility that it would lead [him] in a direction to develop a postconviction" and, in the court's view, postconviction discovery means "to [shore] up a claim that you already have," not to search for new claims, and (ii) the contents of the file constituted work product. The State repeats these arguments in its brief. We find both arguments unpersuasive; as a substantive matter, Dixon was entitled to the contents of his trial counsel's file.

         ¶ 29 The Post-Conviction Hearing Act (or Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides a mechanism by which defendants can seek remedy for alleged constitutional violations that occurred during their trials. People v. Coleman, 183 Ill.2d 366, 378-79 (1998). Proceedings under the Act take place in three stages. People v. Boclair, 202 Ill.2d 89, 99 (2002). At the first stage, the trial court reviews the petition and only may dismiss a frivolous or patently meritless petition. Id. at 99-100. Should a petition survive the first stage, it continues to the second stage where counsel may be appointed and the State can move to dismiss. Id. at 100. If the State's motion to dismiss is denied, or no motion to dismiss filed, the trial court conducts an evidentiary hearing on the merits. Id.

         ¶ 30 The Act straddles the civil-criminal divide, leading our supreme court to describe it as sui generis, meaning "of its own kind." Daley, 123 Ill.2d at 181. So, neither the civil discovery rules nor the criminal discovery rules apply in postconviction proceedings. Id. at 181-82. Daley dealt specifically with discovery depositions, and in that context, a postconviction petitioner must show "good cause" for the request. Id. at 183-84. The court has since applied the "good cause" requirement more generally. People v. Johnson, 205 Ill.2d 381, 408 (2005) (evidence deposition); People v. Fair, 193 Ill.2d 256, 264-65 (2000) (confession and witness interviews). A trial court's decision to grant or deny a postconviction discovery request will not be disturbed absent an abuse of discretion. Johnson, 205 Ill.2d at 408.

         ¶ 31 Initially, we find it odd to think of trial counsel's file as "discovery" when the party requesting it is counsel's own client. Traditionally, the goal of postconviction discovery is to allow a petitioner to engage in a limited search for new information. Cf. Daley, 123 Ill.2d at 184 (discussing possibility that discovery may not be necessary if information already available elsewhere). Dixon's counsel confirmed this view by conceding at oral argument that he is not alleging error as to any information from a third party source that is not already in the trial file. By contrast, the information in trial counsel's file would not have required the production of new information. While Dixon may not have personally viewed some of the materials in the trial file, the information had already been discovered. That said, accepting the characterization of the trial file as "discovery," the trial court's reasons for denying access to it were insufficient.

         ¶ 32 The trial court denied Dixon access, in part, because the court believed he was "fishing." We disagree, and find our supreme court's decision in Fair to be instructive. The petitioner in Fair sought documentary evidence from the State's trial file, including a confession to criminal conduct from the judge who presided over the petitioner's trial and other witness statements. Fair, 193 Ill.2d at 259, 263-64. The trial court denied petitioner's request. Id. at 263. The State argued, as it does here, that the petitioner had not shown good cause for the discovery request because nothing in his petition showed a nexus between the postconviction claim and the discovery. Id. at 266.

         ¶ 33 The supreme court, rejecting that argument, stressed that it would put postconviction petitioners in "an impossible dilemma." Id. The State's theory, both in Fair and here, would allow a postconviction petitioner "to seek out evidence that there is a nexus between [the evidence requested] and petitioner's trial only if he [or she] already possesses such evidence." Id. at 266-67. That position puts Dixon to the impossible task of using the evidence he is requesting to prove his need for the evidence. The circularity of this argument jeopardizes the availability of information, particularly to an indigent petitioner.

         ¶ 34 The State's argument becomes even more troubling on consideration of the facts. Postconviction counsel's initial review of the trial file appears to have been fruitful. At the time that the trial court accepted Dixon's waiver, postconviction counsel already had represented to the court that she "had access to the trial attorney's file," that she had "gone through much of it," and that she had also "spoken with the original investigator on the case," which led her to ask for additional time to review the file. Dixon later told the court that before postconviction counsel's withdrawal, he and counsel had agreed to raise one claim of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. We can assume that postconviction counsel's determination that two issues had merit came from counsel's examination of the trial file, and not the trial record, where the issues would have been either res judicata or waived. See People v. Holman, 2017 IL 120655, ¶ 25 ("[I]ssues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are forfeited."). We cannot say, as the trial court did, that Dixon's desire to examine the file constitutes a "fishing expedition" under these facts.

         ¶ 35 The trial court also found, and the State argues in its brief, that the trial file cannot have been turned over because of "notes or memos concerning strategy," which the State and the trial court characterize as "work product." We find this argument unavailing.

         ¶ 36 The work-product doctrine arises from the recognition that lawyers need a degree of privacy when preparing a client's case. People v. Spiezer, 316 Ill.App.3d 75, 80-81 (2000) (discussing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). The doctrine protects a client from "unnecessary intrusion by opposing parties and their counsel." (Internal quotation marks omitted.) Id. That protection "facilitate[s] the flow of information leading to theories and strategies to be employed by the attorney at trial." Id. at 88. The doctrine provides a shield behind which an attorney can "seek, on his [or her] own, information about the case that he [or she] could not obtain from his [or her] adversary through the discovery process." Id.

         ¶ 37 The work-product doctrine is not absolute. Id. Even when the opposing party seeks information traditionally protected by the work-product rule, the court must strike a balance "between the need to accord protection to work that is performed on the case *** and the need to ensure that the trier of fact will be exposed to the relevant facts of the case and necessary interpretations of the evidence." Id. at 88-89. In addition to that balancing, the work-product doctrine can be waived. People v. Grier, 90 Ill.App.3d 840, 848 (1980). In the analogous context of attorney-client privilege, a defendant waives his or her privilege by alleging counsel's ineffectiveness. People v. O'Banner, 215 Ill.App.3d 778, 793 (1991).

         ¶ 38 We have been unable to find, and the parties have not cited, any case applying the work-product doctrine to a client's own access to his or her counsel's file while he or she litigates a postconviction petition without counsel. But, we find sufficient guidance in the principles behind the work-product doctrine more generally.

         ¶ 39 We start with the purpose of the work-product doctrine-to prevent interference with trial preparation by opposing parties. That concern evaporates when, like here, Dixon requests access to his own counsel's file. Trial counsel had long-since gathered the information and the "flow of information" has already stopped. One cannot label Dixon's access to his own file as "interference." And, any information that counsel collected would have been conveyed to Dixon as his counsel prepared for trial; indeed, trial counsel's testimony at the posttrial Krankel hearing reveals that Dixon and his counsel discussed trial strategy and the status of counsel's investigations. While Dixon may not have laid his eyes on every document, the substance of trial counsel's file had been largely revealed to Dixon as he and his counsel prepared for trial.

         ¶ 40 We also observe that Dixon's request for the trial file cannot be thwarted by the work-product doctrine, given the nature of his ineffectiveness claims. The work-product doctrine allows defense counsel to freely develop trial strategy, and Dixon has called trial counsel's strategy decisions directly into question by alleging ineffectiveness. The trial file may be the best place for Dixon to look to determine which of his counsel's strategic decisions can be challenged in a postconviction petition.

         ¶ 41 Even if the work-product doctrine applied, we would strike the balance discussed in Spiezer-between the protection of counsel's work and the trial court's need for full factual development-in favor of disclosure. Dixon's trial is over, and his postconviction claims necessarily depend on facts outside of the trial record. He must substantiate those claims with facts not previously known, which he cannot do without the complete file. Fully protecting his counsel's strategic decisions and development of trial theories is of little moment. The work-product doctrine, even if it applies, simply does not bar Dixon's access to his own counsel's file.

         ¶ 42 We are satisfied that the Illinois cases describing the work-product doctrine point us to the right answer. But we note that the question of work product vis-à-vis client access to his or her counsel's file during postconviction proceedings has come up in other jurisdictions. Many courts agree that the work-product doctrine "is meant to protect an attorney, but not from his [or her] own former client." Hiatt v. Clark, 194 S.W.3d 324, 329 ...

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