People v. Generally

2024 IL App (5th) 220360-U

• Court: Appellate Court of Illinois
• Decided: February 27, 2024
• Docket: 5-22-0360
• Status: Unpublished

Opinion

2024 IL App (5th) 220360-U NOTICE NOTICE Decision filed 02/27/24. The This order was filed under text of this decision may be NO. 5-22-0360 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 11-CF-2738 ) NIGEL GENERALLY, ) Honorable ) Neil T. Schroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Boie concurred in the judgment.

ORDER

¶1 Held: We reverse the second-stage dismissal of the defendant’s postconviction petition and remand for appointment of new counsel and further proceedings.

¶2 The defendant, Nigel Generally, appeals the second-stage dismissal of his postconviction

petition. For the following reasons, we reverse the dismissal and remand for appointment of new

counsel and further proceedings.

¶3 I. BACKGROUND

¶4 The following facts are derived from the record on appeal. Some of the facts were included

in this court’s previous orders in this case, which were issued in appellate case number 5-15-0441

(People v. Generally, No. 5-15-0441 (2017) (unpublished summary order under Illinois Supreme

1 Court 23(c))) and appellate case number 5-17-0265 (People v. Generally, No. 5-17-0265 (2020)

(unpublished Rule 23 order)).

¶5 On April 8, 2013, the defendant pled guilty to one count of first degree murder in exchange

for the State’s agreement to dismiss all other pending charges and to seek a sentence of no more

than 40 years’ imprisonment. At the time of the offense, the defendant was 19 years and 10 months

old. Following a June 20, 2013, sentencing hearing, the defendant was sentenced to 33 years’

imprisonment. The defendant’s motion to reconsider his sentence was denied. The defendant did

not withdraw his guilty plea, nor did he file a direct appeal.

¶6 On June 15, 2015, the defendant filed a petition for postjudgment relief pursuant to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). The defendant argued

that his sentence was void because the judge was biased against him, refused to consider the

relevant factors in mitigation, imposed a sentence that was disproportionate to that of his

codefendant, and stated that “the law will be used to revenge the victim’s death.” The defendant

sought relief in the form of a resentencing hearing. The State did not file a motion to dismiss, an

answer, or any other responsive pleading. The circuit court denied the defendant’s petition and he

appealed.

¶7 On March 28, 2017, while the above appeal was pending, the defendant filed, pro se, a

petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1

et seq. (West 2016)). Therein, the defendant alleged that his 33-year sentence was a “de facto

sentence of life without parole,” and that the sentence should be vacated. The defendant alleged

that in a previous case, this court had “relied on recent U.S. Supreme Court case law to form its

analysis of the proportionate penalties clause” in relation “to a mandatory natural life sentence.”

The defendant also alleged that pursuant to the statute under which he was sentenced, the

2 sentencing judge “was precluded from considering the [defendant’s] ‘youth’ diminished

culpability because of the characteristics of youth, and the way it weakens rationales for

punishment. Not to mention other mitigating factors as well.” He asked, inter alia, to be

resentenced “in conjunction with Illinois Constitution Article 1 Section 11 proportionate penalties

clause.”

¶8 On June 8, 2017, the circuit court judge handling the case entered a written order in which

he summarily dismissed the defendant’s pro se petition, ruling that the petition was frivolous and

patently without merit because, inter alia, (1) “[t]he defendant’s age and childhood were brought

to the forefront during the sentencing, both by testimony and exhibits introduced by [the

defendant’s trial counsel],” and (2) the sentencing judge “specifically commented on taking the

defendant’s age into account and noted the various life stages the defendant would be at upon

release from prison given various length sentences,” which resulted in the defendant’s sentence

being “considerate of the defendant’s age and level of maturity at the time the offense was

committed.”

¶9 The defendant appealed the dismissal of his pro se postconviction petition. While the

appeal was pending, the defendant acknowledged that in light of the Illinois Supreme Court’s

decision in People v. Buffer, 2019 IL 122327, ¶¶ 40-41 (prison sentence of 40 years or less imposed

on juvenile offender is not a de facto life sentence), his 33-year sentence does not qualify as a

de facto life sentence. Accordingly, the defendant abandoned his arguments related to a de facto

life sentence. However, the defendant maintained that his petition nevertheless was sufficient to

survive a first-stage dismissal, arguing that the petition raised the gist of a proportionate penalties

clause claim that is independent of his now-abandoned de facto life sentence claim. In particular,

the defendant pointed to the fact that his petition raised a claim under the Illinois Constitution and

3 contended that this court has held that a sentence may be disproportionate under our constitution

even if it is not a de facto life sentence. This court reversed the dismissal of the pro se

postconviction petition because the defendant “stated the gist of a constitutional claim with an

arguable basis” and remanded for appointment of counsel and further proceedings.

¶ 10 On remand, counsel was appointed to represent the defendant. On March 22, 2022, counsel

filed a Rule 651(c) certificate and an amended postconviction petition that adopted the defendant’s

pro se claims and argued that the defendant’s sentence violated the eighth amendment and the

Illinois proportional penalties clause, because the trial court failed to take the defendant’s youth

into consideration during sentencing. Counsel supported the amended postconviction petition with

case law, Illinois statutes, policy arguments regarding the programs available to the defendant in

the Illinois Department of Corrections, and the fact that the defendant’s codefendants both received

a 20-year sentence of imprisonment, despite being older than the defendant. Three exhibits were

attached to the amended postconviction petition: the report of proceedings of the sentencing

hearing and the docket sheets for each of the two codefendant’s cases.

¶ 11 The amended postconviction petition argued, inter alia, as follows:

“11. The proportionate penalties clause of the Illinois Constitution states that ‘all

penalties shall be determined according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship.’ Ill. Const. 1970, art. 1 sec. 11.

12. In addition, the sentencing court’s failure to take the defendant’s youth into

account violated the 8th Amendment of the United States Constitution proscription of cruel

and unusual punishment. ***

13. The Sentencing Court in this matter made no meaningful consideration of the

defendant’s age. *** [A]t this point it can be argued that the Court should have given this

4 case all of the consideration that a juvenile offender would be under Miller. In the particular

circumstances, it would certainly have been appropriate, but it is clear that there is no case

law in Illinois to support that argument. ***

***

15. As a result, the sentencing court violated the defendant’s State and Federal

constitutional rights. See: Miller v. Alabama.

16. More recently, courts of review have come to re-examine and re-emphasize the

age of offenders when considering the proportionality of a sentence for an offender over

the age of 18 but less than the age of 18 [sic]. In People v. House, IL App (1st) 11058072

N.E.3d 357 (2015) the Court specifically rejected the bright light distinction between

juvenile and adult at the age of 18. ***”

¶ 12 The State filed a motion to dismiss the amended postconviction petition. The trial court

conducted a hearing on the motion to dismiss on June 8, 2022. At the hearing, defense counsel

argued “that this case really boils down to an equal protection and due process case. The sentence

given to my client was not commensurate with the offense, and certainly is not commensurate with

the sentence given to defendants that were co-defendants.” Counsel also argued that the other issue

was the “concept of emerging adult” and the House case.

¶ 13 On June 8, 2022, the trial court entered an order granting the State’s motion to dismiss the

amended postconviction petition for reasons stated on the record. The reasons stated on the record

were as follows:

“[T]he issue is, you know, whether the petition—the allegations in the petition in light of

the trial record failed to make a substantial showing of a Constitutional violation. So the

5 question is, taking this at face value, not doing any fact finding, whether or not the petition

and the attachments set forth a substantial showing of a Constitutional violation.

So, with regard to the consideration of age—[defense counsel], you attached a copy

of the sentencing hearing to your pleading and I would like to just point out some things

that were in the record.

So first on the pagination on the transcript itself, Page 5 with regard to the

Presentence Investigation, the Court indicated that he read it all and will use them, being

the PSI and the addendums, as a basis for factors in the sentence to be determined.

On Page 1 of the PSI is the Defendant’s date of birth, so it was clearly part of the

record, the Court was aware of Mr. Generally’s age. Mr. Generally himself pointed out and

argued his age on Page 40 in his statement in allocution. At the top of Page 40 he refers to

himself as a young 19-year old, unexperienced man.

On Page 61 at the top, in pronouncing the sentence the Court specifically indicated

the consideration of the defendant’s age. ***

And with regard to the cruel and unusual punishment aspect, even in light of Miller

I don’t think there’s a sufficient basis set forth in this petition to show a substantial

violation, and I likewise find the same with regard to the disproportionate penalties claim.

Mr. Generally’s sentence, although it is, you know, in the term of years substantially

longer, I don’t find that the petition sets forth the Constitutional violation and I don’t find

there’s a sufficient showing of disproportionate sentence.

So any other issues raised in the petition I likewise find there has not been a

substantial showing of the Constitutional violation. The Appellate Court sent it back to

6 have the benefit of counsel, counsel has filed the amended petition, the Court’s considered

it, the State’s motion is granted, the petition is dismissed.”

Thereafter, the defendant filed a timely notice of appeal.

¶ 14 II. ANALYSIS

¶ 15 It is well established that most petitions filed under the Post-Conviction Hearing Act (725

ILCS 5/122-1 et seq. (West 2020)) are filed by pro se defendants with limited legal knowledge.

See, e.g., People v. Allen, 2015 IL 113135, ¶ 24. In those situations, when a petition for

postconviction relief advances—as did the petition in this case—to the second stage of

proceedings, a pro se defendant is entitled to the appointment of counsel to assist the defendant.

People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. Appointed counsel may file an amended

petition, and the State may file a motion to dismiss or an answer. Id. If the petition makes a

substantial showing of a constitutional violation, it will be advanced to the third stage of

proceedings, which ordinarily involves an evidentiary hearing on the defendant’s claims. Id.

¶ 16 The source of the defendant’s right to counsel at the second stage of proceedings is

statutory rather than constitutional, and as a result, the level of assistance guaranteed is not the

same as the level of assistance constitutionally mandated at trial or on direct appeal; instead, the

level of assistance required is reasonable assistance. Id. ¶ 29. To provide reasonable assistance at

the second stage of proceedings, appointed postconviction counsel is required to perform the three

duties set forth in Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Id. ¶ 30. Appointed

counsel must (1) consult with the defendant to determine the claims the defendant wants to raise,

(2) examine the appropriate portions of the record, and (3) make any amendments to the petition

that are necessary in order to adequately present the defendant’s claims to the circuit court, which

often means that counsel must shape the defendant’s claims into proper legal form. Id.

7 ¶ 17 The filing, by appointed postconviction counsel, of a certificate of compliance with Rule

651(c) creates a rebuttable presumption that counsel has provided the statutorily-required

reasonable level of assistance at the second stage of proceedings. Id. ¶ 31. We review de novo the

question of whether appointed counsel provided the reasonable level of assistance that is required.

Id. If we determine that appointed postconviction counsel failed to provide reasonable assistance,

we will remand for further second-stage proceedings on the petition, with new counsel to be

appointed to represent the defendant on remand. Id. ¶ 53.

¶ 18 As we undertake our de novo review of whether postconviction counsel provided

reasonable assistance, we remain mindful of the fact that substantial compliance with Rule 651(c)

is sufficient. See, e.g., People v. Profit, 2012 IL App (1st) 101307, ¶ 18. We also remain mindful

of the fact that the presumption of reasonable assistance that arises with the filing of a Rule 651(c)

certificate may be rebutted by the record. People v. Russell, 2016 IL App (3d) 140386, ¶ 10. The

failure to make a routine amendment, such as an amendment adding a claim of ineffective

assistance of appellate counsel in order to prevent the dismissal of a petition on the basis of waiver

or forfeiture, is an example of conduct on the part of postconviction counsel that rebuts the

presumption of reasonable assistance. Id. ¶ 11. There is no requirement that a defendant make a

positive showing that appointed counsel’s failure to comply with Rule 651(c) caused prejudice,

because if appointed postconviction counsel failed to fulfill the duties of Rule 651(c), remand is

required, regardless of whether the claims raised by the defendant in the petition had merit. Id.

¶ 12. Likewise, appointed counsel’s failure to comply with the rule generally will not be excused

on the basis of harmless error, because a reviewing court will not engage in speculation as to

whether the circuit court would have dismissed the petition at the second stage had counsel

complied with the rule. Id.

8 ¶ 19 In this case, appellate counsel for defendant argues that the record on appeal rebuts the

presumption of reasonable assistance that arose when appointed counsel filed a certificate of

compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), because (1) counsel

argued the eighth amendment issue that had previously been abandoned in light of the Illinois

Supreme Court’s decision in People v. Buffer, 2019 IL 122327, ¶¶ 40-41 (prison sentence of 40

years or less imposed on juvenile offender not a de facto life sentence), (2) counsel relied upon the

First District decision in People v. House, 2015 IL App (1st) 110580, which was vacated by our

supreme court on November 28, 2018, and (3) counsel failed to identify or attach any supporting

evidence to establish that at the time of the offense the defendant was an emerging adult and

counsel sought to produce such evidence at an evidentiary hearing when this evidence must be

presented before the petition could move to the third stage.

¶ 20 The State counters that the defendant is foreclosed from claiming any error due to entering

into a partially-negotiated guilty plea and that the defendant’s proportional penalties claim is

barred by waiver and res judicata. Further, the State argues that if the aforementioned procedural

defaults are overlooked, the defendant received reasonable assistance of counsel. The State argues

that the defendant’s claims premised on Miller were meritless.

¶ 21 In reply, appellate counsel for the defendant argues that pursuant to the Illinois Supreme

Court’s decision in People v. Addison, 2023 IL 127119, ¶ 42, “when appointed counsel does not

adequately fulfill his or her duties under Rule 651(c), a remand is required regardless of whether

the petition’s claims have merit.” We agree. On April 20, 2023, the Illinois Supreme Court issued

its opinion in People v. Addison, 2023 IL 127119. The court’s majority decision in Addison

reiterated the longstanding general legal principles cited by this court above, then expressly stated,

with regard to compliance with Rule 651(c), “[w]e fail to see how it can be reasonable assistance

9 of counsel for an attorney to identify claims worth pursuing but then fail to shape them into proper

form.” Id. ¶ 26. The Addison majority thereafter reiterated that when postconviction counsel fails

to comply with Rule 651(c), such as by failing to shape claims into proper legal form, “our case

law dictates that the cause should be remanded without a consideration of whether the petition’s

claims have merit.” Id. ¶ 33. The Addison majority rejected the State’s argument that the

aforementioned case law applies only when postconviction counsel has failed to file a certificate

of compliance with Rule 651(c). Id. ¶¶ 34-38. The Addison majority ultimately held that

“[p]ostconviction counsel did not comply with Rule 651(c), because she failed to shape

defendant’s claims into proper form,” and that, accordingly, the defendant had “rebutted the

presumption of reasonable assistance that arose from postconviction counsel’s Rule 651(c)

certificate.” Id. ¶ 44. The Addison majority further held that “the appellate court correctly

remanded the cause for compliance with Rule 651(c) without considering whether the claims in

the petition were meritorious.” Id.

¶ 22 In the present case, appointed counsel violated Rule 651(c) by failing to shape the claim

into proper form, because, inter alia, counsel failed to allege specific facts in support of the

emerging adult claim as required by the Illinois Supreme Court case of People v. House, 2021 IL

125124, and advanced arguments on an eighth amendment claim that had previously been

abandoned following the Illinois Supreme Court’s decision in People v. Buffer, 2019 IL 122327.

These shortcomings doomed the defendant’s claim to failure at the second stage of proceedings

regardless of whether the claim potentially had merit and cannot be said to constitute compliance

with Rule 651(c). See, e.g., People v. Dixon, 2018 IL App (3d) 150630, ¶¶ 15-27 (failure to

(1) allege specific facts (rather than conclusory allegations), (2) support those facts with

documentation such as affidavits, or (3) allege prejudice, when bringing claim of ineffective

10 assistance of counsel, renders postconviction petition “not in an appropriate legal form to present

the defendant’s claims to the [circuit] court” and rebuts the presumption of compliance with Rule

651(c)). Accordingly, the defendant has rebutted the presumption of reasonable assistance that

arose from appointed counsel’s filing of a certificate of compliance with Rule 651(c). We therefore

reverse the dismissal of the petition and remand for further proceedings with new counsel.

¶ 23 III. CONCLUSION

¶ 24 For the foregoing reasons, we reverse the order of the circuit court of Madison County that

dismissed the petition, and we remand for further second-stage proceedings with new counsel. We

direct both appellate counsel to provide copies of their briefs to circuit court counsel (including

new postconviction counsel), and to the circuit court. People v. Bell, 2018 IL App (4th) 151016,

¶ 37. We reiterate that it is well established that postconviction counsel is prohibited from

amending a petition to advance claims in the circuit court that counsel determines are frivolous

and patently without merit. See, e.g., People v. Greer, 212 Ill. 2d 192, 209 (2004). Illinois courts

of review have made it clear what counsel must do if, after the circuit court advances a petition to

the second stage because the circuit court believes that the petition is not frivolous or is not patently

without merit, counsel subsequently determines that it is. See, e.g., People v. Kuehner, 2015 IL

117695, ¶¶ 20-22, 24, 27; see also, e.g., Dixon, 2018 IL App (3d) 150630, ¶¶ 21-22 (if counsel

finds claims in petition are frivolous or patently without merit, the appropriate procedure is to stand

on pro se petition or seek to withdraw as counsel). We remind new postconviction counsel of these

principles of law and admonish new counsel to adhere to them when considering what claims, if

any, legitimately may be advanced in this case.

¶ 25 Reversed and remanded with directions.