NOTICE 2015 IL App (5th) 130525 Decision filed 10/22/15. The text of this decision may be NO. 5-13-0525 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 07-CF-152 ) JOHN HOTWAGNER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE SCHWARM delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶1 I. FACTS
¶2 Following a domestic incident that occurred in October 2007, the defendant, John
Hotwagner, was charged in Lawrence County case number 07-CF-152, with two counts
of aggravated criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)) (counts I and
II) and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2006))
(count III). At the defendant's first appearance, he requested counsel, and the trial court
appointed public defender Brad Vaughn to represent him. The defendant was
subsequently represented by private counsel, Roscoe Cunningham, until February 2008, 1 when citing "no payment for legal services rendered," Cunningham was granted leave to
withdraw.
¶3 In March 2008, the defendant appeared pro se at his final pretrial conference and
pled guilty to count II in exchange for a 12-year sentence and the State's dismissal of
counts I and III. When discussing the terms of the plea agreement, then-State's Attorney
Patrick Hahn advised the trial court that he and the defendant had reached the agreement
after talking outside the courtroom. Noting that Cunningham had recently withdrawn,
Hahn further advised that he had asked the defendant if he wanted a court-appointed
attorney or if he wanted to speak with him and that the defendant had advised that he
wanted to speak with him. Hahn did not, however, indicate who had initiated the
conversation or the plea negotiations. Before entering his plea, the defendant was
admonished pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) and waived
his right to counsel in open court.
¶4 In September 2009, the defendant filed a pro se petition for relief pursuant to the
Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2008)). In his
pro se petition, the defendant alleged that when he appeared for his final pretrial
conference in March 2008, he had "expected to be met by his attorney, Roscoe D.
Cunningham, [but] instead was met by State's Attorney Patrick Hahn outside the
courtroom." The defendant further alleged that after informing him that Cunningham had
" 'quit [him],' " Hahn had "then said[,] 'You can take 12 years now[,] or I'll give you 20 or
better next week at trial.' " Claiming that he had not previously been informed that he
"no longer had legal representation" and that he had felt "ambushed and threatened" by 2 Hahn, the defendant suggested that his guilty plea had been coerced rather than
knowingly and voluntarily entered. The defendant further alleged that "[f]eeling
abandoned and unsure of what [he] should do," he had "mentally blanked out" and was
thus "incompetent and unable to cope with the legal proceedings."
¶5 The defendant's pro se petition included an affidavit from inmate Tyler Newlin,
who indicated that he had been outside the courtroom along with the defendant and had
witnessed the encounter between the defendant and Hahn. Newlin maintained that he had
"witnessed the State[']s Attorney, Mr. Patrick Hahn[,] approach [the defendant] and
inform him that his attorney had 'quit.' " According to Newlin's affidavit, Hahn had "then
made the following statement in a threatening tone[:] 'You can take the 12 years today, or
I will give you 20 years next week at trial.' " Newlin further asserted that the defendant
had not been "allowed the chance to consult with [an attorney] before going to trial and
accepting the State's offer."
¶6 In March 2010, the trial court appointed attorney Matthew Hartrich to represent
the defendant on his postconviction petition. In June 2010, Hartrich filed an amended
petition on the defendant's behalf. The amended petition incorporated by reference "all
of the allegations" in the defendant's pro se petition and specifically alleged the
following:
"The State's Attorney spoke with [the defendant] without his attorney being
present and obtained the guilty plea with [the defendant] without his attorney
being present, which violated [the defendant's] right to counsel. U.S. Const.,
amend. VI, XIV; Ill. Const. 1970, art. I, sec. 8." 3 Notably, the State did not address this allegation in its motion to dismiss the defendant's
amended petition for postconviction relief, which was filed by then-State's Attorney Lisa
Wade in July 2010. The State observed, however, that the defendant had waived his right
to counsel when entering his guilty plea.
¶7 In July 2010, Hartrich filed a certificate attesting that he had complied with the
requirements of Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Hartrich
specifically certified that he had "consulted with the [defendant] in person to ascertain his
contentions of deprivation of constitutional rights," had "examined the trial court file and
report of proceedings of the plea of guilty," and had "made any amendments to the
petition filed pro se that [were] necessary for an adequate presentation of [the
defendant's] contentions."
¶8 In September 2010, following a hearing, the trial court granted the State's motion
to dismiss the defendant's amended petition for postconviction relief and thus denied the
defendant an evidentiary hearing on his underlying claims. When dismissing the
amended petition, the trial court noted that when entering his guilty plea, the defendant
had been "offered appointed counsel, and he waived his right to appointed counsel."
¶9 The defendant subsequently appealed the trial court's dismissal of his amended
postconviction petition. Citing People v. Card, 188 Ill. App. 3d 213 (1989), the
defendant argued that the trial court erred in dismissing the petition because he had made
a substantial showing that the State had violated his sixth amendment right to counsel by
"contacting him directly and negotiating a guilty plea with him."
4 ¶ 10 In August 2012, this court reversed the trial court's second-stage dismissal of the
defendant's amended postconviction petition, noting that under Card, a defendant who
has previously invoked his sixth amendment right to counsel can validly waive that right
in the context of plea negotiations "only if he, rather than the State, 'initiated the plea
bargaining.' " People v. Hotwagner, 2012 IL App (5th) 100461-U, ¶ 21 (quoting Card,
188 Ill. App. 3d at 215). Accepting the factual allegations in the defendant's amended
petition as true, we thus determined that the defendant had made a substantial showing
that the State had violated his sixth amendment right to counsel by improperly initiating
the negotiations that resulted in his guilty plea. Id. ¶¶ 18, 23. Accordingly, we remanded
the cause for an evidentiary hearing on the claim. Id. ¶¶ 24, 26.
¶ 11 In November 2012, the trial court granted Hartrich leave to withdraw and entered
an order appointing Abbey Brian as third-stage postconviction counsel. In April 2013,
the cause proceeded to an evidentiary hearing, where the following evidence was
adduced.
¶ 12 The defendant testified that he was 44 years old and was incarcerated at the
Centralia Correctional Center. Following his October 2007 arrest, the defendant was
initially represented by court-appointed attorney Vaughn, but the defendant's family later
hired Cunningham to represent him. Cunningham appeared with the defendant at his
preliminary hearing in November 2007 and at his formal arraignment in December 2007.
The defendant stated that when he appeared for his final pretrial conference in March
2008, he had not spoken with Cunningham since December 2007 and had not received
word that Cunningham had withdrawn his representation. The defendant further stated 5 that he had never received written notice of Cunningham's intent to withdraw. The
defendant testified that the last time he had spoken with Cunningham, Cunningham had
indicated that he had negotiated a plea agreement with Hahn and that at the final pretrial
conference, the defendant would plead guilty to a charge of "regular battery" and
"everything [else] would be dropped." According to the defendant, "[t]hat's what [he]
was expecting" would happen at the final pretrial conference. The defendant testified
that while waiting for Cunningham outside the courtroom, however, Hahn had
approached him and asked to speak with him. The defendant testified that Hahn had
initiated the contact. The defendant stated that after advising him that Cunningham had
"quit on [him]," Hahn had asked him if he wanted an attorney appointed or if he was
willing to talk without one. The defendant testified that he had subsequently spoken with
Hahn because he did not want to make him "mad." The defendant stated that
approximately 20 minutes later, he was brought into the courtroom, where he pled guilty
to count II and received a 12-year sentence.
¶ 13 When cross-examined, the defendant testified that Hahn had "ambushed" him by
approaching him in the hallway and basically saying, "[E]ither take this deal or we're
going to slam you." The defendant stated that he had been unaware that Cunningham
was no longer his attorney until Hahn had informed him that such was the case. The
defendant acknowledged that while he was incarcerated following his arrest, he had
spoken with Cunningham over the telephone. He testified that after December 2007,
however, "every time [he] would call [Cunningham's] office[,] nobody would answer."
6 ¶ 14 The defendant acknowledged that he knew that he had the right to have an
appointed attorney present when he spoke with Hahn and had not requested one. The
defendant explained that he had "felt like [Hahn's offer] was a one-time deal" and that
having an attorney appointed "was the furthest thing from [his] mind at the time." The
defendant indicated that he and Hahn had spoken for less than five minutes and that when
he brought up the plea agreement that Cunningham had allegedly negotiated, Hahn had
said something about it being "bullshit." The defendant claimed that Hahn had "played
on [his] emotions" and had "caught [him] at a bad time." The defendant testified that
Newlin had been with him when Hahn had approached him and that some correctional
officers had also been present. The defendant indicated that he had been "on parole"
when he was charged in the present case and that his parole had been revoked as a result
of the charges.
¶ 15 The defendant acknowledged that he had agreed to the terms of his plea agreement
in open court and had not stated that he had been ambushed or that he wanted an attorney
appointed to represent him. The defendant further acknowledged that when entering his
plea, he had understood the trial court's admonishments, had waived his right to an
attorney, and had confirmed, among other things, that he had not been threatened, forced,
or coerced into entering his plea.
¶ 16 On redirect, the defendant testified that when Hahn approached him in the
hallway, Hahn had "[b]asically" said, "[Y]our lawyer quit on you. You could take this 12
years today[,] or I am going to give you 20 or better next week." The defendant further
testified that he had not had "any opportunity to process this information" and had not 7 had "the opportunity to discuss this offer with anybody else." The defendant stated that
he had felt like he "had no choice" but to accept Hahn's offer.
¶ 17 On recross, the defendant acknowledged that he knew that count II was a Class X
felony with a statutory sentencing range of 6 to 30 years. He also acknowledged that on
prior occasions, he had entered guilty pleas to other felony charges. The defendant
testified that in the present case, however, he "didn't even realize what [had] happened
until after the fact." On further redirect, the defendant stated that he had never previously
represented himself when entering a plea of guilty.
¶ 18 Hahn testified that he was the Lawrence County State's Attorney from 2004
through 2008. Hahn stated that he remembered the defendant "for several reasons" and
recalled that "the nature of the [defendant's] crime was pretty bad." Hahn indicated that
in addition to the charges that had been filed in Lawrence County, the defendant had also
been charged in Clark County with offenses arising from the same incident. Hahn further
indicated that the defendant had pled guilty to the charges in Clark County sometime
prior to March 2008.
¶ 19 With respect to the events that led to the entry of the defendant's March 2008
guilty plea, Hahn testified that although the cause was set for a final pretrial conference,
he had anticipated that in light of Cunningham's recent withdrawal, the defendant "would
either ask for an attorney or advise the [c]ourt that he wanted additional time to hire an
attorney." Hahn testified that as he was walking through the hallway towards the
courtroom, however, the defendant, who "was there with [Department of Corrections]
personnel," had politely asked to speak with him. At that point, Hahn asked the 8 defendant if he wanted to talk or if he wanted to have an attorney appointed to represent
him. Hahn testified that the defendant had responded by stating that he wanted to talk
and "get this over with." Hahn stated that he and the defendant had subsequently "walked
over to the side," where the defendant indicated that he "wanted to plead for six years."
Explaining that his "internal rule of thumb" for Class X felonies and sexual assault cases
was to always obtain "double digits for the sentence," Hahn testified that he had rejected
the defendant's proposal. Hahn indicated that he had then made a counteroffer of
"somewhere between 15 and 16," and the defendant said that he "was willing to do 12."
Shortly thereafter, the agreement was presented to the court, and the defendant entered
his guilty plea.
¶ 20 Hahn testified that he did not recall having any specific dealings with Cunningham
in the present case. Hahn indicated that based on prior experiences, however, he had
learned that if he wanted to try to negotiate with Cunningham, "it was generally best for
[Cunningham] to initiate the negotiations," which Cunningham often did "on the eve of
trial." Hahn further indicated that he and Cunningham had never discussed a deal by
which the defendant would plead guilty to a charge of battery and "everything else would
be dismissed." Hahn testified that there was "no doubt in [his] mind that [the defendant
had] initiated the discussion" in the hallway and had "asked to speak with [him]." Hahn
testified that "that's when [he had] asked [the defendant] if he wanted to have an attorney
appointed first, and he said no, he wanted to get it over with."
¶ 21 When cross-examined, Hahn acknowledged that he knew that the defendant was
no longer represented by counsel when they negotiated their plea agreement. Hahn did 9 not recall advising the defendant that Cunningham had "quit him," but he indicated that
the defendant had not acted surprised when he had asked him if he wanted to have an
attorney appointed to represent him. Hahn acknowledged that he had not told the
defendant that he could not speak with him but had rather asked him, "[D]o you want to
talk to me or do you want to have an attorney appointed for you[?]" On redirect,
indicating that he had recently reviewed "the transcripts," Hahn apologized for not having
made a better record of the events that led to the entry of the defendant's guilty plea.
¶ 22 During closing arguments, Brian maintained, among other things, that it was
"clear that the State [had] initiated the contact here." Brian further suggested that "the
fact that the conversation [even] occurred" was a violation of the defendant's right to
counsel. The State countered that "it was the [d]efendant who [had] initiated the
discussion with Mr. Hahn and not the reverse." Referencing Card, the State argued that
the defendant had thus waived his right to counsel. The State also suggested that before
continuing their conversation, Hahn had "protect[ed] himself in a sense" by confirming
that the defendant did not want to have an attorney appointed to represent him. Stating
that the defendant was "not a person of feeble mind," the State also emphasized that the
defendant acknowledged that he had understood the rights that he was "giving up" by
entering his plea. Noting that there was "a contradiction between the two witnesses"
regarding who had initiated the plea bargaining, the trial court subsequently took the
matter under advisement.
¶ 23 In October 2013, the trial court entered a written order denying the defendant's
amended postconviction petition. In its order, the trial court noted, among other things, 10 that the defendant's testimony at the evidentiary hearing "conflict[ed] sharply with the
testimony presented on behalf of the State." After thoroughly recounting the procedural
history of the case, the evidence presented at the evidentiary hearing, and the applicable
law, the court concluded as follows:
"Based upon all of the evidence presented at the third[-]stage hearing
together with the transcripts of previous hearings in this case, and based upon the
demeanor of the witnesses, this court finds that Defendant's version of the
colloquy in the hallway *** is not credible. The court finds that Defendant ***
initiated the discussion with State's Attorney Hahn in the hallway and requested to
talk to him and that Mr. Hahn only engaged him in discussions concerning a plea
after he ascertained that Defendant, having been informed that he had [the] right to
speak to an attorney or have a public defender appointed rather than talk to Mr.
Hahn, expressed his intent to talk to Mr. Hahn about a possible plea.
From the context and circumstances, it is apparent to the court that
Defendant *** was aware previous to the time of this colloquy that Attorney
Cunningham no longer represented him. It is also apparent from the testimony
and circumstances that Defendant affirmatively engaged State's Attorney Hahn in
discussion in order to negotiate with him. Thus Defendant's Sixth Amendment
rights to representation by counsel were not violated by this conversation and
negotiation.
Furthermore, at the time the plea was taken, Defendant was again informed
of his right to persist in a plea of not guilty and have an attorney appointed to 11 represent him and repeatedly stated his intent to waive the right to an attorney and
enter into the plea agreement. Moreover, it was apparent to this court at the time
the plea was taken, from Defendant's answers in the course of the court taking the
plea and waivers and from Defendant's demeanor that he freely, knowingly and
voluntarily waived his right to counsel and other rights of defense."
Brian subsequently filed the defendant's timely notice of appeal.
¶ 24 II. DISCUSSION
¶ 25 The defendant argues that his cause must be remanded for a new evidentiary
hearing with new postconviction counsel because Brian failed to provide him with the
reasonable level of assistance required under the Act. The defendant specifically
maintains that Brian's representation was deficient in that she failed to cite controlling
law in support of the defendant's claim that the State violated his sixth amendment right
to counsel, failed to use available evidence to bolster the defendant's testimony as to
when he learned that Cunningham was no longer his attorney, failed to call Newlin as a
corroborating witness, and "filed a certificate after the hearing which indicated confusion
as to the basics of the Act and her role in representing [the defendant]." For the reasons
that follow, we disagree.
¶ 26 A. The Post-Conviction Hearing Act
¶ 27 The Act sets forth a procedural mechanism through which a defendant can claim
that "in the proceedings which resulted in his or her conviction there was a substantial
denial of his or her rights under the Constitution of the United States or of the State of
Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2008). The Act provides a three-stage 12 process for the adjudication of postconviction petitions. People v. English, 2013 IL
112890, ¶ 23.
¶ 28 At the first stage, the trial court independently assesses the defendant's petition,
and if the court determines that the petition is "frivolous" or "patently without merit," the
court can summarily dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2008); People v.
Edwards, 197 Ill. 2d 239, 244 (2001). To survive the first stage, "a petition need only
present the gist of a constitutional claim" (People v. Gaultney, 174 Ill. 2d 410, 418
(1996)), which is a "purposely low threshold for survival because most petitions are
drafted at this stage by defendants with little legal knowledge or training" (People v.
Ligon, 239 Ill. 2d 94, 104 (2010)).
¶ 29 If a petition is not dismissed at the first stage, it advances to the second stage,
where an indigent petitioner can obtain appointed counsel and the State can move to
dismiss it. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2008); Edwards, 197 Ill. 2d at
245-46. At the second stage, the trial court is "foreclosed from engaging in any fact-
finding because all well-pleaded facts not rebutted by the record are to be taken as true."
People v. Phyfiher, 361 Ill. App. 3d 881, 884 (2005) (citing People v. Coleman, 183 Ill.
2d 366, 380-81 (1998)). At the second stage, if the defendant makes a substantial
showing of a constitutional violation, the petition advances to the third stage, where the
trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2008); Edwards,
197 Ill. 2d at 246.
¶ 30 At the third stage, a defendant has the burden of proving a substantial showing of a
constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 472-73 (2006). "An 13 attorney at the evidentiary hearing stage must argue the merits of the postconviction
petitioner's claims as presented in the petition following review by counsel at the second
stage." People v. Marshall, 375 Ill. App. 3d 670, 683 (2007). At the third stage, the trial
court "may receive evidentiary proof via affidavits, depositions, testimony, or other
evidence, and may order the petitioner brought before the court." People v. Gerow, 388
Ill. App. 3d 524, 527 (2009). An evidentiary hearing allows the parties to "develop
matters not contained in the trial record and, thus, not before the appellate court." People
v. Lester, 261 Ill. App. 3d 1075, 1078 (1994).
¶ 31 "Following an evidentiary hearing where fact-finding and credibility
determinations are involved, the trial court's decision will not be reversed unless it is
manifestly erroneous." People v. Beaman, 229 Ill. 2d 56, 72 (2008). This standard
recognizes that "we must give great deference to the trial court's factual findings because
the trial court stands in the best position to weigh the credibility of the witnesses." In re
Floyd, 274 Ill. App. 3d 855, 867 (1995); see also Coleman, 183 Ill. 2d at 384 (noting that
"the post-conviction trial judge is able to observe and hear the witnesses at the
evidentiary hearing and, therefore, occupies a 'position of advantage in a search for the
truth' which 'is infinitely superior to that of a tribunal where the sole guide is the printed
record' " (quoting Johnson v. Fulkerson, 12 Ill. 2d 69, 75 (1957))). "A ruling is
manifestly erroneous if it contains error that is clearly evident, plain, and indisputable."
People v. Hughes, 329 Ill. App. 3d 322, 325 (2002).
¶ 32 As previously indicated, "[a]n indigent defendant is entitled to appointed counsel
in postconviction proceedings if the petition is not summarily dismissed as frivolous or 14 patently without merit." People v. Lander, 215 Ill. 2d 577, 583 (2005). "A defendant is
entitled only to the level of assistance required by the Act, however, because the right to
counsel is wholly statutory and is not mandated by the Constitution." Id. "That
assistance has been defined by [the supreme] court to mean a 'reasonable' level of
assistance." People v. Flores, 153 Ill. 2d 264, 276 (1992); see also People v. Turner, 187
Ill. 2d 406, 410 (1999) ("It is well settled that the Act requires counsel to provide a
'reasonable level of assistance' to [a] petitioner in post-conviction proceedings.").
¶ 33 B. Strickland v. Washington
¶ 34 In People v. Albanese, 125 Ill. 2d 100 (1988), the supreme court adopted the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), for determining
whether a criminal defendant was denied effective assistance of trial counsel under both
the state and federal constitutions. People v. Chatman, 276 Ill. App. 3d 619, 622 (1995).
To succeed on a claim of ineffective assistance of counsel under the Strickland standard,
a defendant must show that counsel's performance fell below an objective standard of
reasonableness and that counsel's deficient performance resulted in prejudice. People v.
Ross, 229 Ill. 2d 255, 260 (2008); People v. Shaw, 186 Ill. 2d 301, 332 (1998). "Further,
in order for a defendant to establish that he suffered prejudice, he must show a reasonable
probability that, but for counsel's deficient performance, the result of the proceedings
would have been different." People v. Burt, 205 Ill. 2d 28, 39 (2001). "Because a
defendant must establish both a deficiency in counsel's performance and prejudice
resulting from the alleged deficiency, failure to establish either proposition will be fatal to
the claim." People v. Sanchez, 169 Ill. 2d 472, 487 (1996). 15 ¶ 35 "Neither mistakes in strategy nor the fact that another attorney with the benefit of
hindsight would have proceeded differently is sufficient to establish ineffective assistance
of counsel." People v. Dobbs, 353 Ill. App. 3d 817, 827 (2004). Additionally, a
defendant "cannot rely on speculation or conjecture to justify his claim of incompetent
representation." People v. Holman, 164 Ill. 2d 356, 369 (1995). "Counsel is presumed to
know the law" (People v. Perkins, 229 Ill. 2d 34, 51 (2007)), and "a court must indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action 'might be considered sound trial strategy' "
(Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).
¶ 36 C. The Defendant's Claims
¶ 37 Because trial counsel and postconviction counsel serve different roles, because a
postconviction petitioner has "already been stripped of the presumption of innocence,"
and because the right to postconviction counsel is not constitutionally required, the
reasonable level of assistance required under the Act is not coextensive with the level of
assistance required under Strickland. People v. Owens, 139 Ill. 2d 351, 364-65 (1990);
People v. Gully, 243 Ill. App. 3d 853, 863-64 (1993). The Act does "not guarantee that [a
petitioner] will receive the same level of assistance that the Constitution guarantees to
defendants at trial." Owens, 139 Ill. 2d at 364; see also People v. Davis, 388 Ill. App. 3d
869, 884 (2009) (noting that a defendant "is not constitutionally entitled to the effective
assistance of counsel at a postconviction proceeding" but is rather entitled to a
"reasonable level of assistance"). "Strickland is thus not applicable" or at least "not 16 automatically applicable" to claims that postconviction counsel's assistance was less than
reasonable. People v. Perkins, 367 Ill. App. 3d 895, 901-02 (2006), rev'd on other
grounds, 229 Ill. 2d 34 (2007). It has been suggested, however, that although Strickland
"is not the relevant standard" for addressing such claims, "the Strickland test is an
essential standard for comparison." Id. at 901. It further stands to reason that if
postconviction counsel's performance cannot be deemed deficient under Strickland, it
cannot be said that counsel failed to provide the reasonable level of assistance required
under the Act. Here, evaluating the defendant's complaints regarding Brian's
performance under the elevated Strickland standard, his claim that he was denied the
right to reasonable assistance still fails.
¶ 38 1. Failure to Cite Controlling Law
¶ 39 The defendant argues that Brian "failed to cite controlling law" in support of her
argument that the State violated the defendant's sixth amendment right to counsel. See
People v. Kelly, 2012 IL App (1st) 101521, ¶¶ 31, 32, 40 (holding that postconviction
counsel failed to provide a reasonable level of assistance where counsel failed to cite
"controlling Supreme Court precedent," failed to present the defendant's arguments in
appropriate legal form, allowed the defendant's petition to languish for years, and made
comments indicating that counsel "either lacked basic knowledge of the Act or
fundamentally misunderstood it"). The controlling precedent in the present case was
Card, however, and the defendant concedes that his cause was remanded for an
evidentiary hearing to determine whether there was a constitutional violation under Card.
Nevertheless, citing Boyd v. Dutton, 405 U.S. 1 (1972), the defendant suggests that Brian 17 should have argued that the waiver of the right to counsel "will not be 'lightly presumed,'
and a trial judge must 'indulge every reasonable presumption against waiver.' " Id. at 3
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The issue in Boyd, however, was
whether the defendant had knowingly and voluntarily waived the right to counsel where
"the material facts bearing upon that issue were inadequately developed in the state court
post-conviction hearing." Id.; see also Cormier v. Saba, 953 F. Supp. 2d 274, 285 (D.
Mass. 2013) (noting that in Johnson, "the Supreme Court addressed the conviction of a
man who had never been offered an attorney by the trial court, had been denied one by
the District Attorney, and who apparently was never informed of his right to counsel").
Moreover, the Boyd Court recognized that the right to counsel may be waived by a
"voluntary and knowing action" (405 U.S. at 2-3), which is consistent with Card and the
United States Supreme Court cases upon which Card was decided (see Michigan v.
Jackson, 475 U.S. 625 (1986), overruled on other grounds by Montejo v. Louisiana, 556
U.S. 778 (2009); Edwards v. Arizona, 451 U.S. 477 (1981); Card, 188 Ill. App. 3d at
215-16). "[C]ounsel is not required to raise losing arguments to avoid an ineffective-
assistance claim" (People v. Cavazos, 2015 IL App (2d) 120171, ¶ 82), and the
defendant's claim that Brian failed to argue controlling authority is without merit.
¶ 40 2. Failure to Bolster the Defendant's Claims Regarding Counsel's Withdrawal
¶ 41 On February 8, 2008, Cunningham filed his notice and motion to withdraw with
the trial court and certified that on February 7, 2008, he had forwarded copies of the same
to the defendant at the defendant's prison address. Cunningham did not, however,
include the defendant's inmate number in the prison address listed on the filed notice. In 18 its February 25, 2008, order granting Cunningham leave to withdraw, the trial court
directed him to serve the defendant with a copy of the order pursuant to Illinois Supreme
Court Rule 13 (eff. July 1, 1982) and further directed the circuit clerk to forward a copy
of the order to the defendant. On March 5, 2008, the copy that the circuit clerk attempted
to forward was returned as undeliverable due to the clerk's failure to include the
defendant's correct inmate number in his prison address. It is unclear whether the
defendant ever received a copy of the notice or the order from Cunningham.
¶ 42 On appeal, the defendant suggests that Brian should have used the incomplete
address on Cunningham's notice to corroborate the defendant's testimony that he never
received the notice. The defendant specifically claims that Brian "never pointed out the
address error in the [n]otice" and "failed to use the incomplete address on the February
2008 [n]otice to corroborate [his] testimony that he did not receive the [n]otice." These
claims, however, are somewhat misleading, if not belied by the record.
¶ 43 When Brian argued that the defendant had previously been unaware that
Cunningham had withdrawn, the trial court asked her about the notice that Cunningham
had allegedly mailed to the defendant on February 7, 2008. In response, Brian referenced
the defendant's testimony that he had not received the notice and then stated the
"I believe you also see in your file marked March 5, 2008, is a returned
envelope. The Circuit Clerk's mail never got to [the defendant] either. So, I think
it's clear from the testimony and from the returned mail that [the defendant] never
19 got any notice of hearing or any notice of his attorney withdrawing and had no
idea that was going to be happening at all."
Later, when the trial court again inquired about the notice that "was supposedly mailed on
February 7, 2008," Brian stated the following:
"Well, we have to go by his testimony, your Honor, that he never received
any letters or any mail or anything, correspondence, from Mr. Cunningham as he
testified to. And I just want to point out that [the] letter was returned showing that
the Circuit Clerk tried to mail him a letter to what they thought was his address.
The same thing could have happened to Mr. Cunningham. He filed a notice. He
filed a certificate of service. It could have well been returned to Mr. Cunningham
just like the Circuit Clerk's letter was returned."
¶ 44 Although Brian did not specifically point out that the circuit clerk's mailing had
not included the defendant's correct inmate number or that the address listed on
Cunningham's notice had not included an inmate number at all, both documents were
before the court, and the deficiencies are apparent when viewed in light of Brian's
arguments. Contrary to the defendant's intimations on appeal, Brian thus used the
evidence to corroborate his testimony that he had not received the notice.
¶ 45 We note that the trial court ultimately determined that the defendant's testimony
regarding his encounter with Hahn was not credible and that "[f]rom the context and
circumstances," it was "apparent to the court" that the defendant had been aware that
Cunningham was no longer representing him when he initiated the plea discussions with
Hahn. Moreover, although the defendant suggests that his underlying claim "hinged" in 20 part on when he became aware that Cunningham had withdrawn, the relevant inquiry was
who had initiated the encounter in the hallway. See Card, 188 Ill. App. 3d at 215-16. A
defendant who has previously invoked the right to counsel voluntarily waives that right
by initiating contact with the State, whether or not he was represented by counsel when
the contact was made. See Montejo, 556 U.S. at 786; Michigan v. Harvey, 494 U.S. 344,
352-53 (1990). Whether the defendant was aware that Cunningham had previously
withdrawn was only relevant to his claim that he had felt "abandoned" and "ambushed"
when Hahn allegedly approached him and informed him that Cunningham had "quit."
Brian used the documents at issue to further that claim, but the trial court obviously
rejected the defendant's testimony as self-serving. See People v. Newbolds, 194 Ill. App.
3d 539, 542 (1990). Additionally, as indicated, the defendant's constitutional claim
hinged on who had initiated the conversation in the hallway, irrespective of whether the
defendant was aware that Cunningham had previously withdrawn. Under the
circumstances, the defendant is unable to establish either of Strickland's propositions with
respect to his assertion that Brian failed to use available evidence to corroborate his
testimony regarding Cunningham's notice.
¶ 46 3. Failure to Call Newlin as a Corroborating Witness
¶ 47 The defendant asserts that Brian's "most egregious oversight" was her failure to
call Newlin as a corroborating witness "despite the fact that he was named in the pro se
petition and had already provided an affidavit." The defendant intimates that had Newlin
testified, there is a reasonable probability that the outcome of the evidentiary hearing
would have been different. "Counsel's decision whether to present a particular witness is 21 generally a strategic choice which cannot support a claim of ineffective assistance of
counsel" (People v. Richardson, 189 Ill. 2d 401, 414 (2000)), however, and the defendant
is again unable to satisfy either prong of Strickland.
¶ 48 "It is well established that decisions concerning whether to call certain witnesses
for the defense are matters of trial strategy left to the discretion of trial counsel." People
v. Banks, 237 Ill. 2d 154, 215 (2010); see also People v. Negron, 297 Ill. App. 3d 519,
538 (1998) ("Decisions concerning which witnesses to call at trial and what evidence to
present are matters of trial strategy, and cannot form the basis for a claim of ineffective
assistance of counsel unless a strategy is so unsound that counsel can be said to have
entirely failed to conduct any meaningful adversarial testing."). It is strategically sound
for counsel to not call a witness whose testimony would be of "questionable value"
(People v. Guest, 166 Ill. 2d 381, 400 (1995)) or whose testimony could potentially harm
a defendant's case (Marshall, 375 Ill. App. 3d at 677; People v. Smado, 322 Ill. App. 3d
329, 335 (2001); People v. Peterson, 248 Ill. App. 3d 28, 41 (1993)).
¶ 49 Here, Newlin and the defendant were fellow inmates in March 2008, and
according to the Illinois Department of Corrections' website, Newlin has been convicted
of numerous felony offenses in Lawrence County. See Rodriguez v. Illinois Prisoner
Review Board, 376 Ill. App. 3d 429, 430 (2007) (noting that a court can take judicial
notice of information posted on the Illinois Department of Corrections' official website).
In No. 07-CF-78, he was convicted of attempted burglary; in No. 08-CF-22, he was
convicted of domestic battery; in No. 09-CF-85, he was convicted of burglary; in No. 10-
22 CF-158, he was convicted of possession of methamphetamine; and in No. 13-CF-21, he
was again convicted of possession of methamphetamine.
¶ 50 "The trial court has discretion to allow a party to impeach a witness with that
witness's prior conviction for a felony or other crime involving dishonesty if that
conviction, or the witness's release date from prison, was within 10 years." People v.
Collins, 366 Ill. App. 3d 885, 897 (2006). "Additionally, the Illinois Supreme Court has
found that a defense attorney properly may choose not to interview or call a witness who
could be subject to severe impeachment." Smado, 322 Ill. App. 3d at 335 (citing Guest,
166 Ill. 2d at 400). With these considerations in mind, not calling Newlin as a
corroborating witness was "understandable" and "well within defense counsel's
permissible latitude." Peterson, 248 Ill. App. 3d at 41. As a matter of strategy, Brian
could have reasoned that Newlin's testimony would have had negligible value or might
have backfired to the detriment of the defendant's case. In any event, "that another
attorney with the benefit of hindsight would have proceeded differently" does not
demonstrate that Brian's representation was objectively unreasonable. Dobbs, 353 Ill.
App. 3d at 827.
¶ 51 The defendant is also unable to demonstrate that there is a reasonable probability
that the result of the evidentiary hearing would have been different had Newlin testified.
As noted, when denying the defendant's amended petition, the trial court determined that
the defendant's version of what had occurred in the hallway outside the courtroom was
simply "not credible." The defendant's intimation that the trial court would have found
otherwise had Newlin testified is speculation that is insufficient to establish prejudice 23 under Strickland. People v. Bew, 228 Ill. 2d 122, 135 (2008) ("Strickland requires actual
prejudice be shown, not mere speculation as to prejudice."). We lastly note that the same
trial judge presided over all three stages of the defendant's postconviction proceedings, so
the trial court was obviously aware of Newlin's affidavit.
¶ 52 4. Brian's Rule 651(c) Certificate
¶ 53 "Supreme Court Rule 651(c) imposes specific obligations on postconviction
counsel to assure the reasonable level of assistance required by the Act." People v.
Lander, 215 Ill. 2d 577, 584 (2005).
"Rule 651(c) requires that the record show counsel has: (1) consulted with the
defendant either by mail or in person to ascertain his claims of deprivation of
constitutional rights; (2) examined the record of the trial court proceedings; and
(3) made any amendments to the pro se petition necessary for an adequate
presentation of the defendant's contentions. [Citation.] Compliance with the
duties set forth in Rule 651(c) is mandatory [citation], and may be shown by a
certificate filed by postconviction counsel. [Citation.] The failure to file a
certificate showing compliance with Rule 651(c) is harmless error if the record
demonstrates that counsel adequately fulfilled the required duties." Id.
¶ 54 In May 2013, approximately a month after the evidentiary hearing, Brian filed a
certificate stating the following:
"I, Abbey M. Brian, Attorney at Law, hereby certify that on November 28,
2012, I was appointed by the Circuit Court of Lawrence County, Illinois[,] to
represent the Defendant, JOHN HOTWAGNER, in regard to a Petition for Post- 24 Conviction Relief filed pursuant to 730 ILCS 5/5-8-1 [sic], further, I certify that
after my appointment on behalf of Defendant in said cause[,] I took numerous
actions required by statute. First, Counsel has reviewed all of the contents of the
court file and ha[s] investigated the Defendant's contentions of error[,] and, in
addition, I have read all transcripts from the sentencing hearing and the appellate
court and have personally corresponded with the Defendant by mail and met with
the Defendant in person and advised the Defendant as to his legal rights pursuant
to both relevant statutes of the State of Illinois relating to Post-Conviction Relief."
¶ 55 On appeal, noting that Brian's certificate fails to affirm that she ever "consulted"
with the defendant about his underlying claim, the defendant argues that the certificate
fails to demonstrate that Brian complied with the requirements of Rule 651(c). Because
the defendant's claim of constitutional deprivation was ascertained long before her
appointment, however, there was no need for Brian to have "consulted" with the
defendant for purposes of Rule 651(c).
¶ 56 Rule 651(c) recognizes that "[t]o ensure that the complaints of a prisoner might be
adequately presented, the [Act] contemplates that the attorney appointed to represent an
indigent petitioner will ascertain the basis of the petitioner's complaints, shape those
complaints into appropriate legal form[,] and present the prisoner's constitutional
contentions to the court." People v. Johnson, 154 Ill. 2d 227, 237-38 (1993). However,
"Rule 651(c) does not require third-stage counsel to duplicate the efforts of second-stage
counsel." Marshall, 375 Ill. App. 3d at 683.
25 ¶ 57 Here, as evidenced by Hartrich's Rule 651(c) certificate, during the second-stage
proceedings, Hartrich "consulted with the [defendant] in person to ascertain his
contentions of deprivation of constitutional rights." Hartrich then shaped the defendant's
sixth amendment claim into appropriate legal form and filed an amended petition on the
defendant's behalf. After the defendant's cause was remanded for an evidentiary hearing,
Brian was appointed third-stage counsel. Her role was to argue the merits of the
defendant's claim as previously framed by Hartrich. See Marshall, 375 Ill. App. 3d at
683. She was not, however, required to consult with the defendant to ascertain the nature
of his claim or to file an amended petition on his behalf. See id. Those interrelated
duties had previously been fulfilled by Hartrich at the second stage. The only remaining
Rule 651(c) obligation was that Brian examine the transcript of the trial court
proceedings, which, like Hartrich, she certified she had done. We note that Brian also
certified that she had corresponded with the defendant by mail and had met with him in
person. In November 2013, Brian further filed an itemized list of attorney fees indicating
that she had twice conferred with the defendant in person prior to the evidentiary hearing.
Any consultation Brian had with the defendant would have pertained to the presentation
of his claim, however, not its ascertainment. We further note that Brian's familiarity with
the defendant's claim and the court record is apparent from the transcript of the
evidentiary hearing.
¶ 58 Lastly, pointing to the certificate's incorrect statutory citation and ambiguous
reference to "both relevant statutes," the defendant intimates that Brian's certificate
suggests that she was generally incompetent to represent him. The defendant contends 26 that Brian's certificate indicates "confusion as to the basics of the Act and her role in
representing [the defendant]" and "calls into question whether [she] had even a basic
knowledge of the Act." In response, the State argues that because Brian "was under no
obligation to file a Rule 651(c) certificate at all" (see Marshall, 375 Ill. App. 3d at 683
(holding that third-stage counsel was not required to file a Rule 651(c) certificate where
second-stage counsel had already met the rule's requirements)), the "scrivener's errors in
the certificate from which [the] defendant coaxes his contention that Brian did not
understand the Act are therefore irrelevant."
¶ 59 As previously noted, "[t]he failure to file a certificate showing compliance with
Rule 651(c) is harmless error if the record demonstrates that counsel adequately fulfilled
the required duties." Lander, 215 Ill. 2d at 584. It follows that filing a poorly-drafted
certificate is harmless error if the record demonstrates that counsel was otherwise
competent and fulfilled her required duties. Moreover, "[i]n reviewing a claim of
ineffective assistance of counsel, a court must consider defense counsel's performance as
a whole and not merely focus upon isolated incidents of conduct." People v. Max, 2012
IL App (3d) 110385, ¶ 65.
¶ 60 Here, Brian's certificate suggests that it was drafted from or based on a previously
filed certificate from a case involving a sentencing issue. It further suggests that in light
of what Hartrich had already done as second-stage counsel, Brian was uncertain as to
what she needed to certify. As discussed above, the only Rule 651(c) requirement that
was arguably relevant under the circumstances was that she examine the transcript of the
trial court proceedings. She indicated, however, that in addition to familiarizing herself 27 with the transcript and the court file, she had investigated the defendant's claim, had met
and corresponded with him, and had advised him as to certain rights. Although
somewhat cryptic, Brian's certificate cannot be deemed dispositive proof that she was
confused about her role or lacked a basic understanding of the Act. Moreover, Brian
competently presented and argued the defendant's sixth amendment claim at the
evidentiary hearing and thus fulfilled her third-stage obligation. Thus, even assuming
that Brian needed to file a Rule 651(c) certificate, we find that the certificate's errors that
the defendant emphasizes on appeal are harmless under the circumstances and do not
support his contention that he was denied the reasonable level of assistance required
under the Act. Cf. Kelly, 2012 IL App (1st) 101521, ¶¶ 31, 32, 40 (holding that
postconviction counsel failed to provide a reasonable level of assistance where counsel
failed to cite "controlling Supreme Court precedent," failed to present the defendant's
arguments in appropriate legal form, allowed the defendant's petition to languish for
years, and made comments indicating that counsel "either lacked basic knowledge of the
Act or fundamentally misunderstood it").
¶ 61 III. CONCLUSION
¶ 62 We reject the defendant's argument that his cause must be remanded for a new
evidentiary hearing with new postconviction counsel because Brian failed to provide him
with the reasonable level of assistance required under the Act. That another attorney with
the benefit of hindsight would have handled the case differently does not establish that
her representation was deficient. See Dobbs, 353 Ill. App. 3d at 827. Further, we again
note that the trial court's denial of the defendant's amended petition ultimately turned on 28 its determination that the defendant was not credible. For the foregoing reasons, the trial
court's judgment is hereby affirmed.
¶ 63 Affirmed.
29 2015 IL App (5th) 130525 NO. 5-13-0525 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 07-CF-152 ) JOHN HOTWAGNER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. __________________________________________________________________________
Opinion Filed: October 22, 2015 __________________________________________________________________________
Justices: Honorable S. Gene Schwarm, J.
Honorable Judy L. Cates, P.J., and Honorable Richard P. Goldenhersh, J., Concur __________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Maggie A. Heim, Assistant Appellate Defender, Office of Appellant the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 __________________________________________________________________________
Attorneys Hon. Christopher M. Quick, State's Attorney, Lawrence County for Courthouse, Courthouse Square, Lawrenceville, IL 62439, Patrick Appellee Delfino, Director, Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 __________________________________________________________________________