People v. Jarvis

2024 IL App (1st) 230805-U

• Court: Appellate Court of Illinois
• Decided: August 30, 2024
• Docket: 1-23-0805
• Status: Unpublished

Opinion

2024 IL App (1st) 230805-U No. 1-23-0805 Order filed August 30, 2024 Second 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 18658 ) DELANEY JARVIS, ) Honorable ) Carl B. Boyd, Defendant-Appellant. ) Judge, presiding.

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

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

¶2 Defendant Delaney Jarvis appeals from the second-stage dismissal of his petition for relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). On

appeal, he asserts that postconviction counsel provided unreasonable assistance by (1) failing to

obtain documentation to support defendant’s claim that trial counsel was ineffective for failing to No. 1-23-0805

introduce exculpatory evidence of the ownership of the vehicle involved in the offense in order to

impeach witness testimony and (2) failing to amend the petition to allege ineffective assistance of

appellate counsel in order to overcome the procedural default of defendant’s claim that trial

counsel was ineffective for failing to file a motion to suppress a witness’s pretrial identifications

of defendant. We reverse and remand for further second-stage proceedings with the appointment

of new counsel.

¶3 Following a jury trial, defendant was found guilty of one count of aggravated leaving the

scene of a motor vehicle accident involving death and sentenced to 19 years’ imprisonment.

Defendant’s conviction was affirmed on direct appeal. See People v. Jarvis, 2015 IL App (1st)

131142-U. The underlying facts are set forth in the decision on direct appeal and will be repeated

here only briefly.

¶4 At trial, Phillip Ashworth testified that on June 11, 2011, at 7:30 p.m., he witnessed a green

vehicle strike a motorcycle. The rider, Shane Kreke, fell off the motorcycle, rolled across

Ashworth’s vehicle, and hit the ground. Ashworth and the driver of the green vehicle exited their

vehicles, and Ashworth told the driver of the green vehicle that the driver hit Kreke. The driver of

the green vehicle stated he did not care, returned to his vehicle, and drove away. Ashworth

identified defendant in court as the driver of the green vehicle. At the scene, Ashworth spoke to

Olympia Fields police officer Scott Metzger and described defendant. Ashworth viewed three

lineups: a photo array on June 22, 2011, where Ashworth failed to identify defendant; a photo

array on July 7, 2011, where Ashworth identified defendant; and a physical lineup on July 17,

2011, where Ashworth also identified defendant. The two photo arrays are included in the record

on appeal.

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¶5 Metzger testified that he was dispatched to the location of the accident. There, he observed

a green Kia bumper and Kreke on the ground with people rendering aid. Metzger did not see a

green Kia at the scene and no one reported being involved in the accident. Metzger spoke with

Ashworth at the scene.

¶6 Daniel Fernandez testified that in May 2011, he sold defendant a green Kia. Fernandez

identified the bumper left at the scene as belonging to the vehicle. Defendant called Fernandez

after June 10, 2011, and asked Fernandez not to tell anyone that Fernandez sold defendant the

green Kia. Fernandez was arrested after June 2011 for a felony and had other felonies in his

background. Fernandez stated that he had “beef” with one of defendant’s friends and he and

defendant did not like each other because of it. On redirect, Fernandez clarified that he called the

Olympia Fields police department on June 21, 2011, and reported that he sold defendant a green

Kia.

¶7 The jury found defendant guilty of one count of aggravated leaving the scene of a motor

vehicle accident involving death. Defendant’s counsel filed a motion for a new trial and, a day

later, defendant also filed two pro se motions, one for a new trial and one for a “bar association

attorney.” Defendant’s pro se motion for a new trial alleged, inter alia, that trial counsel rendered

ineffective assistance by failing to offer exculpatory evidence, failing to file pretrial motions

(which defendant did not identify), and failing to contact and interview witnesses and conduct a

legal investigation. The motion for a “bar association attorney” requested defendant be appointed

new counsel.

¶8 The trial court stated that a hearing would first be held on counsel’s motion for a new trial

and, if that were denied, the case would proceed to sentencing. Defendant was advised that the

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court would not hear arguments on defendant’s pro se motions until after sentencing.

Subsequently, the court denied counsel’s motion for a new trial and sentenced defendant to 19

years’ imprisonment. Defendant did not file a motion to reconsider his sentence and did not request

to be heard on his pro se motions.

¶9 On direct appeal, defendant alleged that (1) the trial court erred in failing to tender a jury

instruction regarding witness identification testimony, (2) trial counsel was ineffective for failing

to seek the jury instruction, and (3) the trial court erred in failing to conduct a preliminary hearing

investigating defendant’s claim of ineffective assistance of trial counsel pursuant to People v.

Krankel, 102 Ill. 2d 181 (1984).

¶ 10 This court affirmed defendant’s conviction, finding that the trial court did not commit plain

error in failing to tender the jury instruction and therefore, the issue was forfeited. This court also

found trial counsel did not render ineffective assistance in failing to seek the jury instruction as

counsel adequately attacked Ashworth’s identification of defendant as the driver. Finally, this

court found defendant’s pro se motion consisted of bare claims and general assertions of

ineffective assistance and therefore, the trial court did not err in not conducting a Krankel hearing.

Jarvis, 2015 IL App (1st) 131142-U, ¶¶ 34, 40, 55.

¶ 11 On December 28, 2016, defendant filed a pro se petition for postconviction relief alleging

that trial counsel (1) failed to conduct an adequate factual and legal investigation, (2) failed to file

any pretrial motions, and (3) failed to introduce exculpatory evidence. Relevant here, defendant

argued that trial counsel was ineffective for failing to (a) introduce exculpatory evidence, including

proof of ownership of the green Kia, to impeach Fernandez’s testimony and (b) file a motion to

suppress Ashworth’s pretrial identifications of defendant as suggestive. As to the latter claim,

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defendant pointed out that Ashworth was unable to identify him in the first array, where five of

the six persons in the array had long hair, including defendant, but did identify him in the second

photo array, where every person except defendant had short hair. Defendant contended the photo

arrays tainted the physical lineup and in court identification.

¶ 12 On February 19, 2016, the petition was docketed for second-stage proceedings and counsel

was appointed.

¶ 13 On January 13, 2022, counsel filed a certificate pursuant to Illinois Supreme Court Rule

651(c) (eff. July 1, 2017) stating:

“1. I have consulted with the petitioner, DELANEY JARVIS, personally or by mail to

ascertain his contentions of deprivation of constitutional rights.

2. I have obtained and examined the common law record, and report of proceedings, the

court file, and exhibits.

3. I have reviewed petitioner’s pro se post-conviction petition.

4. I have attempted to obtain the trial attorney’s trial file.

5. I have not filed an Amended Petition for Post-Conviction Relief. The pro se *** petition

for post-conviction relief does adequately set forth the petitioner’s claims of deprivation of

his constitutional rights.”

¶ 14 On August 1, 2022, the State filed a motion to dismiss the petition alleging all the claims

were barred by res judicata as they were presented in defendant’s pro se motion for a new trial

and raised on direct appeal.

¶ 15 On March 17, 2023, the court granted the motion to dismiss, concluding that all the claims

were decided on direct appeal and barred by res judicata.

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¶ 16 On appeal, defendant argues that postconviction counsel provided unreasonable assistance

under Rule 651(c), as counsel (1) failed to obtain documentation to support defendant’s claim that

trial counsel was ineffective for failing to introduce exculpatory evidence of the ownership of the

vehicle in order to impeach Fernandez’s testimony and (2) failed to amend the petition to allege

ineffective assistance of appellate counsel in order to overcome the procedural default of

defendant’s claim that trial counsel was ineffective for failing to file a motion to suppress

Ashworth’s pretrial identifications of defendant.

¶ 17 The Act allows defendants to challenge their convictions based on an alleged violation of

their state or federal constitutional rights. People v. Jean, 2024 IL App (1st) 220807, ¶ 28.

Postconviction proceedings follow three stages. Id. Defendant’s petition was dismissed at the

second stage. At the second stage, a defendant must make a substantial showing of a constitutional

violation. People v. Zirko, 2021 IL App (1st) 162956, ¶ 16. Also at this stage, counsel is appointed

for indigent defendants and the State may move to dismiss the petition. Jean, 2024 IL App (1st)

220807, ¶ 28.

¶ 18 If the State moves to dismiss the petition, the court must “not engage in fact-finding or

credibility determinations but must take as true all well-pleaded facts that are not positively

rebutted by the original trial record.” People v. Madison, 2023 IL App (1st) 221360, ¶ 33. If the

court determines that a defendant has made a substantial showing of a constitutional violation, the

petition proceeds to a third-stage evidentiary hearing. Id. If not, the petition is dismissed. Id. A

dismissal of a petition at the second stage is reviewed de novo. People v. Johnson, 2024 IL App

(1st) 220419, ¶ 65.

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¶ 19 In postconviction proceedings, the right to counsel is statutory, not constitutional. People

v. Carson, 2024 IL App (1st) 221644, ¶ 17. Furthermore, counsel is required to render “reasonable

assistance,” a standard which is “less than that afforded by the federal or state constitutions.”

(Internal quotation marks omitted.) Id. Postconviction counsel’s purpose is not to “protect

postconviction petitioners from the prosecutorial forces of the State but to shape their complaints

into the proper legal form and to present those complaints to the court.” People v. Addison, 2023

IL 127119, ¶ 19.

¶ 20 To ensure postconviction counsel renders reasonable assistance, Rule 651(c) provides that

counsel must (1) consult with the defendant by phone, mail, or other means to ascertain the

defendant’s contentions, (2) examine the record of the proceedings at trial, and (3) make the

necessary amendments to the pro se petition to adequately present the defendant’s contentions. Ill.

S. Ct. R. 651(c) (eff. July 1, 2017). Substantial compliance with this rule is required. Addison,

2023 IL 127119, ¶ 21. Counsel may file a certification that he or she complied with the rule or the

record as a whole may demonstrate compliance. Ill. S. Ct. R. 651(c) (eff. July 1, 2017); People v.

Perkins, 229 Ill. 2d 34, 50 (2007).

¶ 21 Once counsel files a Rule 651(c) certificate, a rebuttable presumption that counsel provided

reasonable assistance arises and the defendant bears the burden of overcoming that presumption

by showing that counsel did not substantially comply with the rule. Addison, 2023 IL 127119,

¶ 21. The rebuttable presumption may be overcome by a defendant showing that counsel failed to

make necessary amendments to a pro se petition, including those needed to overcome procedural

bars. Id. However, counsel is not required to amend a petition to advance frivolous claims. People

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v. Gallano, 2019 IL App (1st) 160570, ¶ 30. Whether postconviction counsel substantially

complied with Rule 651(c) is reviewed de novo. Jean, 2024 IL App (1st) 220807, ¶ 30.

¶ 22 Here, defendant’s postconviction counsel filed a Rule 651(c) certificate stating that she

consulted with defendant, reviewed the trial file including the common law record and transcripts,

and did not file an amended petition as the pro se petition adequately set forth defendant’s claims.

Therefore, there exists a rebuttable presumption that defendant’s counsel substantially complied

with Rule 651(c) and provided reasonable assistance during postconviction proceedings.

¶ 23 Defendant argues that postconviction counsel failed to comply with Rule 651(c) because

counsel failed to amend the pro se postconviction petition to allege appellate counsel’s

ineffectiveness for failing to argue trial counsel’s ineffectiveness for not filing a motion to suppress

Ashworth’s pretrial identifications of defendant. Defendant asserts the identifications were the

result of suggestive procedures. Defendant notes the ineffective assistance of trial counsel claim

was evident from the trial record and therefore could have been raised on direct appeal. In order

for the claim to survive forfeiture for failure to raise it on direct appeal, the claim of ineffective

assistance of appellate counsel was a necessary amendment to the postconviction petition.

¶ 24 The State alleges that postconviction counsel was not required to amend the petition to

include this claim because the underlying issue was decided on direct appeal and barred by res

judicata. See People v. Resendiz, 2020 IL App (1st) 180821, ¶ 20 (issues decided on direct appeal

are barred by res judicata and issues that could have been raised on direct appeal, but were not,

are forfeited).

¶ 25 The claim is not barred by res judicata. On direct appeal, defendant alleged that (1) the

trial court erred in failing to tender a jury instruction regarding witness identification testimony,

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(2) trial counsel was ineffective for failing to seek the jury instruction, and (3) the trial court erred

in failing to conduct a preliminary hearing investigating defendant’s claim of ineffective assistance

of trial counsel pursuant to Krankel. Regarding the third issue, this court ruled that defendant’s

pro se posttrial motion consisted of bare claims and general assertions lacking any particulars and

was insufficient to invoke a Krankel hearing. As a result, on direct appeal, this court did not rule

on the merits of defendant’s claim that trial counsel was ineffective for failing to file unspecified

pretrial motions, let alone on the merits of a claim that trial counsel was ineffective for failing to

file a motion to suppress Ashworth’s pretrial identifications. As such, the claim was not barred by

res judicata when defendant raised it in his postconviction petition. People v. Blair, 215 Ill. 2d

427, 443 (2005) (“The doctrine of res judicata bars consideration of issues that were previously

raised and decided on direct appeal”).

¶ 26 The claim was, however, as defendant points out, subject to forfeiture. Although

photographs of the two photo arrays underlying the claim are included in the trial court record,

defendant failed to raise the claim on direct appeal. Accordingly, the claim was procedurally

barred. See People v. Myers, 2023 IL App (1st) 210642, ¶ 40 (defendant precluded from raising a

claim in a postconviction petition that could have been raised on direct appeal but was not).

¶ 27 An amendment to defendant’s pro se petition alleging ineffective assistance of appellate

counsel for not raising trial counsel’s ineffectiveness could have properly framed defendant’s

postconviction claim for consideration, overcoming the procedural bar of forfeiture. Addison, 2023

IL 127119, ¶ 23. Postconviction counsel’s duty to adequately present a defendant’s claims as

required by Rule 651(c) includes making amendments that would overcome procedural bars,

including alleging claims of ineffective assistance of appellate counsel for failure to raise a claim

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on direct appeal when necessary to survive procedural default. Perkins, 229 Ill. 2d at 44.

Consequently, the presumption of compliance with Rule 651(c) is rebutted by the record. Addison,

2023 IL 127119, ¶ 44. Therefore, postconviction counsel did not substantially comply with the

third requirement of Rule 651(c) and rendered unreasonable assistance in this regard. Id.

¶ 28 When counsel fails to substantially comply with Rule 651(c) by failing to allege a claim of

ineffective assistance of appellate counsel to overcome forfeiture, the cause should be remanded

without consideration of the merits of a defendant’s claim. Id. ¶ 33. In so ruling, we need not reach

the other grounds on which defendant argues that postconviction counsel failed to provide

reasonable assistance. See People v. Arnold, 2023 IL App (2d) 220396-U, ¶ 22; People v. Wills,

2023 IL App (4th) 221016-U, ¶ 20; People v. Clark, 2023 IL App (3d) 210344-U, ¶¶ 20-21. 1

¶ 29 For the foregoing reasons, we reverse the judgment of the circuit court and remand for

further second-stage postconviction proceedings with the appointment of new counsel.

¶ 30 Reversed and remanded.

1 Although nonprecedential, orders filed under Supreme Court Rule 23(b) on or after January 1, 2021, may be cited as persuasive authority. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).

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