People v. Indoval

2023 IL App (4th) 220774-U

• Court: Appellate Court of Illinois
• Decided: October 24, 2023
• Docket: 4-22-0774
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220774-U This Order was filed under FILED Supreme Court Rule 23 and is October 24, 2023 NO. 4-22-0774 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County ARTURO INDOVAL, ) No. 15CF191 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Doherty concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding application of the nullity rule is not warranted in this case.

¶2 On August 15, 2022, the trial court summarily dismissed the postconviction petition

of defendant, Arturo Indoval, following his convictions for predatory criminal sexual assault of a

child and aggravated criminal sexual abuse. On appeal, defendant contends his postconviction

petition was drafted by a nonattorney, rendering it a nullity and the order summarily dismissing it

void. We disagree and affirm.

¶3 I. BACKGROUND

¶4 In May 2017, defendant was convicted of four counts of predatory criminal sexual

assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2008)) and two counts of aggravated criminal

sexual abuse (id. § 11-1.60(c)(1)). The trial court sentenced him to an aggregate 65 years in prison. On direct appeal, defendant asserted (1) two of his convictions for predatory criminal sexual

assault of a child and one of his convictions for aggravated criminal sexual abuse were barred by

the statute of limitations and (2) defense counsel was ineffective for failing to move to dismiss

them. The Second District affirmed defendant’s convictions. See People v. Indoval, 2020 IL App

(2d) 171000-U. As the factual background was clearly set forth in the Second District’s decision

on direct appeal, we include only those facts necessary to address the issues presented to this court.

¶5 On July 1, 2022, defendant pro se filed multiple documents, including an untimely

postconviction petition; a motion for appointment of counsel; a motion for leave to file an untimely

postconviction petition; an application to sue or defend as a poor person; an affidavit from a fellow

inmate, Neil Ackerman; and two affidavits from defendant, one in English and one in Spanish.

¶6 In defendant’s English affidavit, he stated he is unable to read or write in English

and must utilize a Spanish to English dictionary any time he reads or writes in English. In May

2022, a prison law clerk introduced defendant to inmate Ackerman, who agreed to assist defendant

with his postconviction petition. After defendant spoke with Ackerman about his petition,

Ackerman “requested all [defendant’s] transcripts and documents.” Then defendant and Ackerman

discussed “the issues [Ackerman] found” before Ackerman drafted defendant’s postconviction

petition.

¶7 Ackerman’s affidavit tells substantially the same story as defendant’s affidavit.

Prior to Ackerman’s incarceration, he attended law school but did not complete his legal education.

He worked as a prison law clerk in the law library from 2019 to 2020. After his tenure as a prison

law clerk, he continued to assist other inmates with drafting legal documents. According to

Ackerman, the current prison law clerks and law library staff often send inmates to him when the

staff have questions about legal matters. Defendant requested assistance from Ackerman because

-2- defendant is unable to read or write in English. After agreeing to assist defendant, Ackerman “read

through [defendant’s] transcripts and common law records” and then “drafted his petition along

with the motion for leave to file an untimely petition.”

¶8 Defendant’s postconviction petition set forth the following arguments: (1) defense

counsel was ineffective for failing to disclose a plea offer, (2) defense counsel was ineffective for

failing to investigate and hire an expert witness, (3) defense counsel was ineffective for not

requesting a Spanish interpreter, (4) defendant was denied a fair trial because two jurors fell asleep

during trial, (5) defense counsel was ineffective for failing to properly cross-examine witnesses,

and (6) cumulative error. The trial court summarily dismissed defendant’s petition as frivolous and

patently without merit. In its written order dismissing the petition, the court did not address the

timeliness of defendant’s petition or that it was purportedly drafted by a nonattorney.

¶9 This appeal follows.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant contends his postconviction petition is a nullity and the trial

court’s order summarily dismissing his petition is void because it was drafted by a nonattorney.

Defendant requests this court vacate the summary dismissal order, strike the postconviction

petition, and allow him to file a new petition. Alternatively, defendant requests this court remand

the case for an evidentiary hearing to determine whether Ackerman’s involvement in drafting the

petition renders it a nullity. The State argues Ackerman’s assistance in drafting defendant’s

petition did not amount to the unauthorized practice of law, or in the alternative, that Ackerman’s

assistance was not sufficient to render the petition a nullity. The State also requests this court

address the untimeliness of defendant’s petition.

¶ 12 A. First Stage Postconviction Proceedings

-3- ¶ 13 Proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.

(West 2022)) have three stages. People v. Allen, 2015 IL 113135, ¶ 21. “At the first stage, the

circuit court must review the petition within 90 days of its filing and determine whether the petition

states the gist of a constitutional violation.” People v. Bailey, 2017 IL 121450, ¶ 18. “The

allegations of the petition, taken as true and liberally construed, need only present the gist of a

constitutional claim.” People v. Brown, 236 Ill. 2d 175, 184 (2010). If the court determines the

petition does not present the gist of constitutional claim, it must summarily dismiss the petition as

frivolous or patently without merit. People v. Boykins, 2017 IL 121365, ¶ 9. We review the trial

court’s summary dismissal of a postconviction petition de novo. People v. Matthews, 2022 IL App

(4th) 210752, ¶ 61.

¶ 14 B. Timeliness of Defendant’s Petition

¶ 15 The State asserts this court “has the jurisdiction to revisit the timeliness issue of

defendant’s postconviction petition and could dismiss it upon that basis, if justice were to require

it.” Citing People v. Johnson, 2015 IL App (2d) 131029, ¶ 19, the State contends a second judge

has the authority to revisit the issue of whether a postconviction petition was untimely.

¶ 16 Johnson is inapposite here. In Johnson, the Second District reviewed the trial

court’s dismissal of an untimely postconviction petition at the second stage. Id. ¶ 1. It is

well-settled a defendant’s postconviction petition may not be summarily dismissed because it was

untimely. People v. Boclair, 202 Ill. 2d 89, 99 (2002). In this case, the court summarily dismissed

defendant’s petition at the first stage as frivolous and patently without merit, without addressing

the timeliness issue. Consequently, we decline to address the timeliness of defendant’s petition.

¶ 17 C. Nullity of Petition

¶ 18 Assuming, arguendo, Ackerman engaged in the unauthorized practice of law,

-4- defendant contends this court is required to declare his petition a nullity and the resulting judgment

void. Citing Ford Motor Credit Company v. Sperry, 214 Ill. 2d 371, 379 (2005), defendant asserts,

“Court proceedings involving the unauthorized practice of law are a nullity, and any resulting

judgments are void.” However, in Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL

112040, ¶ 31, our supreme court held the unauthorized practice of law does not automatically

render the proceedings a nullity. Instead, according to the supreme court, the court “should

consider the circumstances of the case and the facts before it in determining whether dismissal is

proper.” Id. Specifically, the court is to consider the following factors: “whether the nonattorney’s

conduct is done without knowledge that the action was improper, whether the [litigant] acted

diligently in correcting the mistake by obtaining counsel, whether the nonattorney’s participation

is minimal, and whether the participation results in prejudice to the opposing party.” Id.

¶ 19 1. Downtown Disposal Factors

¶ 20 In this case, defendant filed a motion for appointment of counsel stating defendant

was pro se and requesting the appointment of counsel. During postconviction proceedings, a

defendant is not entitled to counsel at the first stage. See People v. Johnson, 2018 IL 122227, ¶ 19.

Instead, if a defendant cannot retain counsel on his own, he must file a pro se petition and be

appointed counsel at the second stage. Id. Here, defendant requested appointed counsel at the first

available opportunity. This act demonstrated defendant understood Ackerman was not acting as

his legal counsel. Based on defendant’s request for counsel at the first available opportunity, we

conclude defendant “acted diligently” in correcting his mistake of having Ackerman draft his

petition. Downtown Disposal, 2012 IL 112040, ¶ 31.

¶ 21 Ackerman’s participation was not minimal. Ackerman reviewed defendant’s

transcripts and the record, discussed potential issues with defendant, and drafted defendant’s

-5- postconviction petition. However, defendant also played a substantial role in the drafting of his

petition. Defendant (1) previously reviewed the order from the direct appeal using a

Spanish-English dictionary, (2) spoke with Ackerman about potential issues to be raised in the

petition, (3) reviewed the petition and made corrections, (4) signed the petition, and (5) filed the

petition along with supporting documents. As a result, we conclude defendant also substantially

participated in the process of preparing the petition.

¶ 22 The record shows neither Ackerman nor defendant knew it was improper for

Ackerman to prepare defendant’s petition. In fact, the affidavits submitted alongside defendant’s

petition demonstrate the opposite. Defendant specifically requested Ackerman’s assistance based

on a recommendation from one of the prison law clerks. Furthermore, prison law clerks and other

inmates often requested Ackerman assist with legal issues. We find neither defendant nor

Ackerman knew it was improper for Ackerman to draft defendant’s petition. It is clear Ackerman

did not hold himself out as a lawyer. Additionally, this is not a situation where defendant was

entitled to appointed counsel and was tricked into accepting legal assistance from someone not

licensed to practice law. As a result, under the totality of the circumstances, defendant was not

prejudiced by getting help from a nonlawyer.

¶ 23 Finally, the State was not prejudiced by a nonattorney drafting defendant’s petition.

During the first stage of postconviction proceedings, the trial court—without input from the

parties—must independently review the petition to determine whether it should be advanced to the

second stage of postconviction proceedings. Brown, 236 Ill. 2d at 184. Because the State was not

involved in the first stage of proceedings, there is no possibility Ackerman’s participation in

drafting defendant’s petition resulted in prejudice to the State.

¶ 24 2. Purpose of Nullity Rule

-6- ¶ 25 In addition to the factors discussed in Downtown Disposal, this court is not

persuaded the purpose of the nullity rule would warrant its application in this case. “The purpose

of the nullity ‘rule is *** to protect litigants against the mistakes of the ignorant and the schemes

of the unscrupulous and to protect the court itself in the administration of its proceedings from

those lacking requisite skills.’ ” Sperry, 214 Ill. 2d at 379.

¶ 26 As discussed above, at the first stage of postconviction proceedings, defendant is

not entitled to counsel. This means defendant’s only options for filing a postconviction petition

were to file pro se or acquire private counsel. Defendant’s documents demonstrated he was

indigent and could not afford private counsel, effectively foreclosing the latter option. In the

limited circumstances of a pro se postconviction petition, the application of the nullity rule would

not serve to protect defendant against “ ‘mistakes of the ignorant.’ ” Id. Without assistance from

Ackerman, defendant would be left to draft his petition alone, without any guidance or language

assistance. In that situation, any “ ‘mistakes of the ignorant’ ” (id.) would be defendant’s alone in

drafting a pro se petition. In addition, it is noted defendant was involved in providing information

for the petition and reviewing the same. Here, defendant ostensibly benefitted from Ackerman’s

assistance because Ackerman admittedly had some legal knowledge and could read and write in

English.

¶ 27 Furthermore, there is no evidence of any “scheme” here. Defendant specifically

sought out Ackerman’s assistance in drafting his petition, even though defendant knew Ackerman

was not a licensed attorney. Ackerman did not misrepresent himself as an attorney or attempt to

defraud defendant in any way. Additionally, Ackerman did not charge defendant for his time and

effort spent drafting defendant’s petition. Therefore, Ackerman gained nothing from his drafting

of defendant’s petition. In this case, there is no need to protect defendant from any “ ‘schemes of

-7- the unscrupulous.’ ” Id.

¶ 28 Finally, applying the nullity rule would not protect the trial court “ ‘from those

lacking requisite skills.’ ” Id. The court is required to review all postconviction petitions at the first

stage, which are often filed by pro se litigants. By design, the standard for advancing a

postconviction petition to the second stage is a low threshold, accounting for the fact most petitions

will be drafted by individuals lacking such skills. See Brown, 236 Ill. 2d at 184 (“A

[postconviction] petitioner need present only a limited amount of detail and is not required to

include legal argument or citation to legal authority.”). Thus, the protection of the court is not a

relevant consideration in these circumstances.

¶ 29 Based on the specific facts in this case, we find the application of the nullity rule is

not warranted. Because defendant does not otherwise argue his petition stated the gist of a

constitutional claim, we conclude the trial court’s dismissal of defendant’s petition at the first stage

of proceedings was proper. See id.

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we affirm the judgment of the trial court.

¶ 32 Affirmed.

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