People v. Holman

2021 IL App (1st) 182296-U

• Court: Appellate Court of Illinois
• Decided: March 31, 2021
• Docket: 1-18-2296
• Status: Unpublished

Opinion

2021 IL App (1st) 182296-U No. 1-18-2296 Order filed March 31, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 15664 ) JASON HOLMAN, ) Honorable ) Michael B. McHale, Defendant-Appellant. ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: The trial court’s summary dismissal of defendant’s postconviction petition is reversed where defendant raised an arguable claim that his waiver of his right to trial counsel was involuntary.

¶2 Defendant Jason Holman appeals from the summary dismissal of his pro se petition for

post-conviction relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2018)). On appeal, defendant asserts his petition was erroneously dismissed because he

raised an arguably meritorious claim that he involuntarily waived his right to counsel. Specifically, No. 1-18-2296

he alleges that appointed counsel informed him that he was “[wasting] time by not pleading guilty

and that if he wanted to go to trial, he should represent himself because the Public Defender’s

Office would not be able to help him.”

¶3 On September 11, 2012, an Assistant Public Defender was appointed to represent

defendant at his arraignment. On September 19, 2012, defendant advised the trial court that he

“would like to exercise [his] right and go pro se.” The court admonished defendant about his right

to represent himself, his right to an attorney, the charges against him and sentencing range,

including the potential for an extended term. Defendant indicated he understood, that he was a

college graduate, and had previously represented himself but “didn’t go completely through it * *

* [and] turned [his] cases back over to Counsel.” The court informed defendant that the Assistant

State’s Attorneys had “substantial training,” that defendant would not receive any “special

consideration” if he represented himself, that he would not have access to personal or contact

information of witnesses, and that he would be better served if represented by an attorney. After

“an opportunity to reflect on whether or not going pro se is what [he wanted] to do,” the defendant

elected to proceed pro se, and the Public Defender’s Office was given leave to withdraw.

¶4 Following a bench trial, defendant was convicted of armed robbery and sentenced to 70

years’ imprisonment, including a 15-year firearm enhancement. His conviction was affirmed on

direct appeal. People v. Holman, 2016 IL App (1st) 140308-U.

¶5 On July 19, 2018, defendant filed a pro se post-conviction petition alleging that “[t]he trial

court erred and manifestly abused its discretion when it allowed [him] to make an invalid waiver

of his constitutional right to an effective assistance of trial counsel.” Defendant argues his waiver

of counsel was involuntary because “coercive comments by [the APD] compelled [him] to waive

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his right to an assistance of trial counsel.” He claims that after his arraignment, the APD told him

“you are [wasting] time by pleading not guilty,” and “the Public Defender’s Office probably can’t

do much to help you.” Defendant further alleges that the trial court erred in not posing “a single

question or any line of inquiry as to why the petitioner wished to proceed pro se.”

¶6 In an affidavit attached to his petition, defendant elaborated that the APD also told him “if

you decide to go to trial you may as [well] represent yourself, because you won’t win anyway and

the Public Defender’s Office probably can’t do much to help you.” Defendant was “so stunned”

that he asked the APD if he was joking. When the APD responded “[i]f I wasn’t sure I wouldn’t

say it,” defendant “felt there was no other choice but to proceed pro se.”

¶7 Defendant acknowledges that the trial court complied with Supreme Court Rule 401(a)

before accepting his waiver of counsel, but argues “that does not exclude the possibility that

[defendant’s] waiver***was improperly induced by appointed counsel.” “[D]escrib[ing] his legal

claim***as an error by the court, rather than ‘ineffective assistance of trial counsel’ ” should not

bar his claim because a pro se petitioner is “not required to articulate the legal theory under which

he should be granted relief.” He is “only required to plead facts that arguably satisfy the elements

of a legal theory for relief,” a burden he has satisfied by pleading that his waiver of counsel was

improperly induced by coercive statements of appointed counsel.

¶8 The State responds that “defendant waived his claim that trial counsel was ineffective for

usurping his decision to waive counsel and proceed pro se, by failing to include this particular

claim in his petition.”

¶9 Although any claim of substantial denial of constitutional rights not raised in an original

or amended postconviction petition is waived (725 ILCS 5/122-3 (West 2018)), the petition need

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only present a limited amount of detail and need not set forth the claim in its entirety. People v.

Edwards, 197 Ill. 2d 239, 244 (2001). Allegations are liberally construed, but the petition must

“nevertheless clearly set forth the respects in which petitioner’s constitutional rights were

violated.” (Emphasis in original.) People v. Reed, 2014 IL App (1st) 122610, ¶ 57.

¶ 10 Defendant’s petition, liberally construed, sets forth “the respects in which” his

constitutional right to counsel was involuntarily waived. The petition, supported by defendant’s

affidavit, explains how the APD’s coercive statements caused him to conclude “there was no other

choice but to proceed pro se.” Under these circumstances, we find that this claim is not forfeited.

See People v. Hodges, 234 Ill. 2d 1, 21 (2009) (Declining to find that a pro se petitioner, who did

not expressly allege in his petition that certain withheld testimony would support “unreasonable

belief” for second degree murder, forfeited the issue where he argued the same testimony would

have supported his self-defense claim); People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 137-

40 (finding the defendant did not forfeit his claim of unreasonable assistance of postconviction

counsel, where he alleged facts supporting the claim but did not articulate the legal theory in his

petition).

¶ 11 The Act provides a three-stage method by which imprisoned persons may collaterally

challenge their convictions for violations of federal or state constitutional rights. 725 ILCS 5/122-

1 et seq. (West 2018); People v. LaPointe, 227 Ill. 2d 39, 43 (2007). Defendant’s petition was

dismissed at the first stage, where the trial court must independently review the petition, taking the

allegations as true, and determine whether “the petition is frivolous or patently without merit.” 725

ILCS 5/122-2.1(a)(2) (West 2018); Edwards, 197 Ill. 2d at 244. A petition is frivolous or patently

without merit if it has no arguable basis either in law or in fact and, instead, is based on a meritless

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legal theory or fanciful factual allegations. Hodges, 234 Ill. 2d at 11-13, 16. “Meritless legal

theories include ones completely contradicted by the record, while fanciful factual allegations may

be ‘fantastic or delusional.’ ” People v. Allen, 2015 IL 113135, ¶ 25 (citing Hodges, 234 Ill. 2d at

17).

¶ 12 In order to proceed to second stage review, a pro se petitioner need only set forth the gist

of a constitutional claim. “ ‘[W]hile a pro se petition is not expected to set forth a complete and

detailed factual recitation, it must set forth some facts which can be corroborated and are objective

in nature or contain some explanation as to why those facts are absent. ” Hodges, 234 Ill. 2d at 9

(quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)). In determining whether a petition

presents a valid claim for relief, “the court may examine the court file of the proceeding in which

the petitioner was convicted, any action taken by an appellate court in such proceeding and any

transcripts of such proceeding,” as well as any affidavits, records, or other evidence supporting its

allegations. 725 ILCS 5/122-2; 122-2.1(c) (West 2018). Our review of the summary dismissal of

defendant’s petition is de novo. Hodges, 234 Ill. 2d at 9.

¶ 13 Under the sixth amendment of the United States Constitution, an accused has both the right

to the assistance of counsel and the correlative right to proceed without counsel. People v. Haynes,

174 Ill. 2d 204, 235 (1996) (citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). An accused

may waive his constitutional right to counsel, as long as the waiver is voluntary, knowing, and

intelligent. Id. “While a defendant in a criminal case does have a right to waive counsel when that

waiver is knowingly and understandingly made [citation] it cannot appear that the waiver was

induced or accompanied by improper conditions or provisions.” People v. Barker, 15 Ill. App. 3d

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104, 106 (1973) (finding the defendant’s waiver of his right to counsel was coerced and involuntary

where the State conditioned his plea agreement upon the waiver).

¶ 14 At the first stage of postconviction proceedings we are governed by the pleadings, not the

trial record. See Hodges, 234 Ill. 2d at 10 (requiring the court to “tak[e] the allegations [in the

petition] as true.”). The only time we are to doubt the truth of the pleadings is where they are

“completely contradicted by the record.” Allen, 2015 IL 113135, ¶ 25; See People v. Coleman, 183

Ill. 2d 366, 385 (1998) (“fact-finding or credibility determinations * * * will be made at the

evidentiary stage, not the dismissal stage of the litigation.”).

¶ 15 Defendant’s claim involves an off the record discussion with appointed counsel that could

not have been raised on direct appeal. See People v. Porter, 164 Ill. 2d 400, 404 (1995) (noting

the general rule that postconviction petitioners are barred from raising claims that could have been

raised on direct appeal). As we recently noted in People v. Estrada, claims such as defendant’s are

in a class that are “likely easiest to corroborate (or disprove, if untrue). All it will take is an affidavit

from trial counsel * * * or a few simple questions to counsel (if counsel is called as a third-stage

witness) to corroborate or disprove” defendant’s claim. 2021 IL App (1st) 170657-U, ¶ 30

(emphasis in original). We do not require petitioners who challenge their counsel’s ineffectiveness

to attach affidavits from counsel whose performance is at issue at the first stage. See People v.

Hall, 217 Ill. 2d 324, 333 (2005) (“Failure to attach independent corroborating documentation * *

* may, nonetheless, be excused where the petition contains facts sufficient to infer that the only

affidavit the defendant could have furnished, other than his own sworn statement, was that of his

attorney.”).

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¶ 16 We take no position on defendant’s ability to prove his allegations; however, we find that

the petition sufficiently alleges the gist of a constitutional claim that defendant involuntarily

waived his right to counsel. Accordingly, we reverse the order of the trial court dismissing the pro

se postconviction petition and remand for second-stage postconviction proceedings under the Act.

¶ 17 Reversed and remanded.

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