People v. Holloway

2021 IL App (5th) 170305-U

• Court: Appellate Court of Illinois
• Decided: March 15, 2021
• Docket: 5-17-0305
• Status: Unpublished

Opinion

2021 IL App (5th) 170305-U NOTICE NOTICE Order filed March 15, 2021. This order was filed under Modified upon denial of NO. 5-17-0305 Supreme Court Rule 23 and is rehearing March 29, 2021. not precedent except in the

IN THE limited circumstances allowed 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, ) St. Clair County. ) v. ) No. 11-CF-1918 ) ALLEN HOLLOWAY III, ) Honorable ) Robert B. Haida, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: The trial court’s second-stage dismissal of defendant’s petition for post conviction relief is reversed and the cause remanded where postconviction counsel did not satisfy the requirements of Rule 651(c).

¶2 In January 2010, in St. Clair County case No. 10-CF-80, defendant, Allen

Holloway III, was charged with one count of unlawful possession with the intent to

deliver cannabis (720 ILCS 550/5 (West 2010)) and one count of aggravated unlawful

use of a weapon (720 ILCS 5/24-1.6 (West 2010)). In December 2011, in St. Clair

County case No. 11-CF-1918, defendant was charged with one count of first degree

murder (720 ILCS 5/9-1(a) (West 2010)). The first degree murder charge alleged that in

1 July 2011, defendant fatally shot Jarius Nicholson without lawful justification.

Thereafter, the State gave notice of its intent to seek an enhanced penalty of up to natural

life imprisonment in light of defendant’s use of a firearm (see 730 ILCS 5/5-8-

1(a)(1)(d)(iii) (West 2010)), and a jury trial on the cause was set for October 7, 2013.

¶3 On October 4, 2013, defendant entered a negotiated plea of guilty to a charge of

aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2010)) that the State

filed the same day. In exchange for defendant’s plea of guilty to the newly filed charge,

the parties agreed that he would receive a sentence between 15 and 30 years and that the

other charges against defendant in 11-CF-1918 and 10-CF-80 would be dismissed.

¶4 Before accepting defendant’s plea as voluntary, the trial court fully admonished

him pursuant to Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). Defendant also

acknowledged, inter alia, that a conviction on the first degree murder charge would have

carried a penalty of 45 years to life and that the penalty range for the charge of

aggravated battery with a firearm was 6 to 30 years. Defendant stipulated the existence of

a factual basis for the plea and indicated that other than the terms of the stated agreement,

no promises had been made to “get [him] to plead guilty.”

¶5 The factual basis for defendant’s plea established that on the evening of July 30,

2011, Nicholson and a group of his friends were gathered outside a home in Cahokia

when a car driven by Emanuel Henderson pulled up and stopped in front of the house.

Henderson “yelled something” at the group, and defendant exited the car armed with a 9-

millimeter handgun. Defendant fired multiple shots in the group’s direction, and one of

the bullets struck Nicholson as he “turned and ran.” 2 ¶6 On November 26, 2013, the cause proceeded to a sentencing hearing where it was

reiterated that pursuant to the parties’ agreement, defendant would receive a sentence

between 15 and 30 years. After considering the parties’ evidence and arguments, the trial

court ordered defendant to serve a 20-year term of imprisonment on his guilty plea and

dismissed all of the remaining charges as the parties had agreed.

¶7 On December 17, 2013, defendant filed a motion to withdraw his guilty plea,

alleging, inter alia, that he did not fully understand the trial court’s admonishments or the

consequences of the plea. On January 14, 2014, there was a hearing on the matter, but

after consulting with trial counsel, defendant voluntarily withdrew the motion.

¶8 On November 17, 2016, defendant filed a pro se petition for postconviction relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2016)), alleging violations of his rights to due process and the effective assistance of

counsel. The petition alleged, inter alia, that he was made to believe he would only

receive a 15-year sentence on his guilty plea, his trial attorney misled him into

withdrawing his motion to withdraw the plea, and the charges filed against him in 10-CF-

80 “[n]ever existed.” The petition further alleged that defendant suffered from a “mild”

mental disability, he did not fully understand the trial court’s Rule 402 admonishments,

and his trial attorney was ineffective for failing to recognize his mental capacity and

bring it to the trial court’s attention. As an attached exhibit, defendant’s petition included

the results of a math-and-reading aptitude test that he had apparently taken in May 2015

and August 2015. The results indicated that defendant exhibited poor reading skills on

3 both occasions, but his math skills significantly improved. Portions of the trial court

record were also attached as exhibits to defendant’s pro se petition.

¶9 In January 2017, the trial court docketed defendant’s petition for second-stage

proceedings and appointed counsel to represent him. On April 17, 2017, postconviction

counsel filed an amended postconviction petition on defendant’s behalf that substantively

realleged most of the claims set forth in defendant’s pro se petition but omitted the

allegation that defendant was made to believe he would only receive a 15-year sentence.

As a new claim, the amended petition further alleged that defendant’s plea was

involuntary because he “was under a great deal of stress and pressure and was not

thinking clearly at the time the [p]lea was entered.” The amended petition referenced the

charges in 10-CF-80 several times, and on one occasion, the weapon charge was

mistakenly referred to as a burglary charge. In support of defendant’s assertion that trial

counsel should have been aware that he suffered from a mild mental disability and had a

low mental aptitude, postconviction counsel attached a copy of the aforementioned test

results.

¶ 10 In May 2017, the State filed a motion to dismiss defendant’s amended petition for

postconviction relief. The State contended that defendant’s claims were either belied by

the record of defendant’s guilty plea proceedings or were otherwise false, vague,

conclusory, or waived. The State noted that it had requested a transcript of the January

14, 2014, on-the-record withdrawal of defendant’s motion to withdraw the plea and

intended to use the transcript to supplement its arguments.

4 ¶ 11 On June 13, 2017, with defendant present, the cause proceeded to a hearing on the

State’s motion to dismiss. At the outset, postconviction counsel acknowledged that

defendant’s amended petition was not properly notarized. He explained that he had

mailed the amended petition to defendant unsigned and that it was later mailed back with

only defendant’s self-notarized signature. The trial court noted the State was aware of the

situation, and the State confirmed it had no objection to the amended petition’s lack of a

formal notarization.

¶ 12 Referencing the transcript of defendant’s guilty plea proceedings and defendant’s

responses to the trial court’s questions therein, the State subsequently argued that

defendant had fully understood the trial court’s admonishments and that judgment on the

plea was properly entered. In response to defendant’s contention that the charges in 10-

CF-80 never existed, the State noted that there were multiple orders entered in 11-CF-

1918 that specifically referenced 10-CF-80, which did exist but did not result in any

convictions.

¶ 13 With respect to defendant’s claim that his trial attorney misled him into

withdrawing his motion to withdraw the plea, the State advised that it had “just” received

an emailed copy of the transcript of the hearing in which defendant withdrew the motion

and provided opposing counsel a copy of the transcript immediately before the hearing. It

contended that the transcript demonstrated that defendant’s decision to withdraw the

motion to withdraw the plea was voluntary. The State subsequently conceded that

defendant’s claim relied on matters that were “off the record” but argued that his

allegations lacked specificity. 5 ¶ 14 Postconviction counsel subsequently confirmed that defendant’s allegations

included ineffective-assistance-of-counsel claims that pertained to conversations and

decisions that were “not on the record.” Counsel suggested that it had not been

defendant’s “idea” to withdraw his motion to withdraw the plea. Because defendant’s

postconviction claims included issues involving matters outside the record, counsel

maintained defendant was entitled to a hearing on his amended petition so that his trial

attorney could testify and address defendant’s allegations. He further argued that

although there was no evidence to support a mental disability claim, defendant was “a

man of low intelligence” and “did not understand what was going on” when his guilty

plea was entered. The trial court subsequently took the matter under advisement.

¶ 15 On June 14, 2017, postconviction counsel filed a certificate stating he had

complied with the requirements of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).

The certificate attested that counsel had “examined the entire record of the proceedings of

the negotiated plea of guilty and sentencing,” ascertained defendant’s contentions of

deprivation of constitutional rights by corresponding with defendant, and made any

amendments to defendant’s pro se petition that were necessary to adequately present

defendant’s contentions. On June 28, 2017, the State supplemented the record with a

certified copy of the January 14, 2014, hearing transcript.

¶ 16 On July 31, 2017, the trial court entered a written order granting the State’s motion

to dismiss defendant’s amended postconviction petition. The trial court concluded that

the record did not support a claim of ineffective assistance of counsel and defendant

6 “exhibited a full understanding of the court proceedings of the three on the record

proceedings.” On August 9, 2017, defendant filed a timely notice of appeal.

¶ 17 ANALYSIS

¶ 18 On appeal, defendant does not contend that any of the claims set forth in his

amended petition for postconviction relief are meritorious. Rather, defendant argues that

we should reverse the trial court’s dismissal of the petition and remand for further

second-stage proceedings because postconviction counsel failed to provide a reasonable

level of assistance pursuant to Illinois Supreme Court Rule 651(c).

¶ 19 Because the right to the assistance of counsel during postconviction proceedings is

wholly statutory, an indigent defendant who is appointed counsel under the Act is not

entitled to the level of assistance required under Strickland v. Washington, 466 U.S. 668

(1984). People v. McNeal, 194 Ill. 2d 135, 142 (2000). Instead, a defendant is entitled to

“a ‘reasonable’ level of assistance” guaranteed under the Act. People v. Cotto, 2016 IL

119006, ¶¶ 29-30.

¶ 20 To ensure reasonable assistance as required by the Act, Supreme Court Rule

651(c) imposes specific duties on postconviction counsel. People v. Turner, 187 Ill. 2d

406, 410 (1999). Rule 651(c) requires counsel to (1) consult with the defendant to

ascertain his or her contentions of constitutional deprivations, (2) examine the record of

the trial proceedings, and (3) make any amendments to the filed pro se petitions

necessary to adequately present the defendant’s claims. Id.; Ill. S. Ct. R. 651(c). The

filing of a facially valid Rule 651(c) certificate creates a rebuttable presumption that

counsel acted reasonably and complied with the rule. People v. Wallace, 2018 IL App 7 (5th) 140385, ¶ 31. We review de novo whether postconviction counsel complied with

Illinois Supreme Court Rule 651(c). People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).

¶ 21 On appeal, defendant argues that the record rebuts the presumption that

postconviction counsel fulfilled the duties required by Rule 651(c), for several reasons.

For example, defendant criticizes counsel for excluding in the petition that he was

promised a 15-year sentence in support of his claim that he was misled. He also contends

counsel’s failure to notarize the petition and attach affidavits in support thereof

demonstrates counsel’s unreasonableness. Defendant further argues that counsel’s failure

to obtain and review the January 14, 2014, hearing transcript (“January 2014 transcript”)

regarding defendant’s motion to withdraw his guilty plea belies counsel’s contention that

he reviewed the record of the trial proceedings as required by Rule 651(c). We need not

address all of defendant’s claims, as we find counsel’s failure to obtain the transcript of

the January 2014 transcript dispositive.

¶ 22 By its terms, Rule 651(c) requires examination of “the record of the proceedings at

the trial.” Ill. S. Ct. R. 651(c). Our supreme court, however, has explained that the rule

mandates postconviction counsel to examine only the portions of the record necessary to

investigate the constitutional claims raised in the defendant’s pro se petition. People v.

Pendleton, 223 Ill. 2d 458, 472 (2006). Postconviction counsels’ duty under this

requirement necessarily entails reviewing the transcripts of any hearings ostensibly

relevant to the defendant’s claims. See People v. Carrizoza, 2018 IL App (3d) 160051,

¶ 18; cf. Turner, 187 Ill. 2d at 411-12 (postconviction counsel did not violate Rule 651(c)

by failing to review several transcripts of the proceedings where defendant’s pro se 8 petition did not allege a constitutional violation based on any matters discussed in those

transcripts).

¶ 23 In this case, postconviction counsel filed defendant’s amended petition on April

17, 2017. The State’s motion to dismiss referenced the January 2014 transcript but noted

that the transcript was in the process of being prepared. At the hearing on the State’s

motion to dismiss, the State averred that it had just received an unofficial copy of the

January 2014 transcript and that a transcript did not exist before then. It also averred that

it emailed a copy to postconviction counsel immediately before the hearing.

¶ 24 This record demonstrates that a copy of the January 2014 transcript did not exist

when postconviction counsel filed defendant’s amended postconviction petition.

Accordingly—although defendant’s pro se petition argued that he was misled into

withdrawing his motion to withdraw the plea—counsel did not review the hearing in

which defendant withdrew the motion before amending defendant’s postconviction

petition. The record therefore affirmatively rebuts the presumption that postconviction

counsel examined the transcripts of the proceeding necessary to adequately present

defendant’s claims.

¶ 25 Moreover, we note that the State neither disputes postconviction counsel’s failure

to review the January 2014 transcript prior to preparing the amended petition nor argues

against defendant’s contention that the failure to review the January 2014 transcript

resulted in noncompliance with Rule 651(c). Rather, it conclusorily alleges that defendant

failed to demonstrate how postconviction counsel did not fully examine the record. As

such, the State has forfeited any argument on this basis. See Vancura v. Katris, 238 Ill. 2d 9 352, 369 (2010) (a party’s failure to raise or develop an argument beyond a vague

allegation may result in forfeiture of the argument on appeal).

¶ 26 Because postconviction counsel failed to comply with Rule 651(c), we remand the

case for further proceedings so that postconviction counsel may comply with the

mandates of Rule 651(c). See Suarez, 224 Ill. 2d at 51-52.

¶ 27 Upon petition for rehearing, defendant additionally requests newly appointed

counsel on remand. He asserts the prudence in appointing new counsel once a reviewing

court finds that previous counsel rendered unreasonable assistance to the same defendant

in the same proceedings. People v. Knight, 2020 IL App (1st) 170550, ¶¶ 41-42. We

agree and find defendant should be appointed new postconviction counsel on remand.

See Wallace, 2018 IL App (5th) 140385, ¶ 53 (noting that the trial court should appoint

new counsel on remand).

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we find that postconviction counsel provided

unreasonable assistance by failing to comply with the requirements of Rule 651(c).

Accordingly, we reverse the trial court’s judgment dismissing defendant’s amended

petition and remand the cause for further second-stage proceedings with newly appointed

counsel.

¶ 30 Reversed and remanded.