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People v. Custer

Supreme Court of Illinois

September 19, 2019


          JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Thomas, Garman, Burke, Theis, and Neville concurred in the judgment and opinion.



         ¶ 1 In this appeal, we are asked to extend the procedures we established in People v. Krankel, 102 Ill.2d 181 (1984), and its progeny to protect a pro se criminal defendant's sixth amendment right to effective assistance of trial counsel to similar claims of unreasonable assistance by postconviction counsel in purely statutory proceedings commenced under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). After weighing the potential effects, both positive and negative, of expanding our application of Krankel, we decline that invitation.

         ¶ 2 I. BACKGROUND

         ¶ 3 Petitioner John Michael Custer had already been convicted of numerous criminal offenses, both felonies and misdemeanors, when the State filed the instant charges. [1]We now address, however, only the facts needed for a complete understanding of this appeal.

         ¶ 4 In 2010, petitioner was charged in the circuit court of Peoria County with unlawful possession of a controlled substance; he entered an open guilty plea the next year. After accepting the plea, the trial court continued the case for sentencing. Prior to the sentencing hearing, however, petitioner was arrested again after two other incidents: (1) an attack on a police officer who was responding to a report that petitioner was assaulting a female in her home and (2) possession of a knife while threatening a man and a woman at a bar. Based on those incidents, petitioner was charged with unlawful possession of a weapon by a felon, aggravated assault, unlawful use of a weapon, and aggravated battery. Petitioner subsequently failed to return for sentencing in his 2010 drug case, and a warrant was issued for his arrest.

         ¶ 5 Petitioner was eventually apprehended and appeared for sentencing in his drug case. Based on his multiple felony and misdemeanor convictions, many involving "crimes of violence," the State requested the maximum sentence of six years in prison. The State also noted that petitioner was the subject of "a multitude" of protective orders sought by a number of different women. The trial court sentenced petitioner to six years' imprisonment.

         ¶ 6 Nine months later, in July 2013, petitioner entered a negotiated guilty plea to the charges of aggravated battery of a police officer and unlawful possession of a weapon stemming from the arrests during the pendency of his 2010 drug case. In exchange, the State recommended consecutive sentences of 4½ years and 5 years in prison, respectively, and agreed to dismiss the remaining charges. The trial court accepted the pleas and imposed the agreed-upon sentences.

         ¶ 7 In May 2014, petitioner filed a pro se postconviction petition, alleging that his private counsel in the 2010 drug case, Clyde Hendricks, was ineffective for failing to appeal or move to withdraw his guilty plea as petitioner requested. Petitioner's filing advanced to a second-stage proceeding, and attorney Sam Snyder was appointed as his postconviction counsel. Snyder filed a supplemental postconviction petition, supporting the pro se allegations with four affidavits from petitioner claiming that both he and his girlfriend (Michelle Colvin) had asked attorney Hendricks to appeal petitioner's drug conviction and sentence. Hendricks allegedly told them he would "take care of what needed to be done and for [petitioner] not to worry." The petition also asserted that Hendricks failed to follow petitioner's instruction to file a motion to withdraw his plea. Based on that showing, the trial court advanced the postconviction petition to a third-stage evidentiary hearing.

         ¶ 8 Prior to that hearing, Colvin sent the trial court a letter stating that (1) she knew petitioner was "not an innocent man," (2) she helped him agree to plead guilty, (3) trial counsel Hendricks told her he was filing an appeal for petitioner, and (4) postconviction counsel Snyder "refused" to take her statement. Attorney Snyder also sent petitioner a letter stating that (1) Snyder had spoken to Colvin, (2) Colvin was "rude and disrespectful" to Snyder and his staff, and (3) Snyder would not be calling Colvin to testify at the evidentiary hearing because he did not believe her testimony would be helpful.

         ¶ 9 At the evidentiary hearing, petitioner testified that trial counsel Hendricks advised him that he would likely be sentenced to probation or three years in prison if he pled guilty to the drug charge. After instead receiving a six-year sentence, petitioner asked Hendricks to appeal. About a month later, Hendricks told petitioner he did not file an appeal because he found no viable appellate issues. Petitioner further testified that he asked Hendricks to file a motion to withdraw his plea and that his girlfriend Colvin also asked Hendricks to appeal.

         ¶ 10 In his testimony at the evidentiary hearing, Hendricks acknowledged telling petitioner he had a "good chance" of receiving no more than four years in prison based on the small amount of cocaine at issue. Hendricks explained to petitioner that entering an open plea would make it difficult to challenge any sentence that fell within the proper sentencing range. While Hendricks expressed surprise when petitioner was given the maximum sentence, he reiterated that the sentence was within the trial court's discretion. He denied any claim that petitioner expressed a desire to appeal or withdraw his plea, stating he would have filed for both if petitioner had asked.

         ¶ 11 The trial court took the amended postconviction petition under consideration. Before an order was entered, however, petitioner sent the judge a letter claiming that postconviction counsel Snyder failed to provide him with adequate representation by refusing to call Colvin as a witness at the evidentiary hearing. Petitioner also filed a pro se motion to "reconsider" the trial court's ruling on his amended postconviction petition even though no ruling had yet been entered.

         ¶ 12 The trial court denied the amended postconviction petition and declined to address petitioner' s pro se motion to "reconsider" because he was still represented by counsel (Snyder). The court's written order included express credibility findings: "The court finds [petitioner's] testimony to be totally unbelievable. In addition to his manner while testifying the court finds [petitioner's] testimony and claims are clearly contradicted by the facts and circumstances set forth in the record." Conversely, the court found petitioner's trial counsel, Hendricks, "to be very believable."

         ¶ 13 Petitioner appealed, represented by the Office of the State Appellate Defender. Despite being represented by counsel, petitioner filed a pro se motion to dismiss the appeal and asked the appellate court to "order the circuit court to rule on [his] motion for reconsideration." Petitioner again alleged that postconviction counsel Snyder erred by failing to call Colvin to testify at the evidentiary hearing. The State did not object to petitioner's filing, and the appellate court dismissed the appeal, remanding for a ruling on his pro se motion to reconsider.

         ¶ 14 On remand, the trial court held a hearing on the motion to reconsider. Petitioner was not present, but postconviction counsel Snyder was in attendance. At the hearing, the State asserted that the motion did not really request "reconsideration" because petitioner did not claim the denial of his postconviction petition was error. Because petitioner asserted no new claims, the State relied on the arguments it made during the second-stage proceedings, along with the rationale in the trial court's order. It also asserted that petitioner's motion did not allege any valid grounds for reconsideration: a change in the law, newly discovered evidence, or the court's misapplication of the law. When given the opportunity to respond, postconviction counsel Snyder ...

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