People v. Juk

2019 IL App (5th) 160544-U

• Court: Appellate Court of Illinois
• Decided: December 12, 2019
• Docket: 5-16-0544
• Status: Unpublished

Opinion

2019 IL App (5th) 160544-U NOTICE NOTICE Decision filed 12/12/19. The This order was filed under text of this decision may be NO. 5-16-0544 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Williamson County. ) v. ) No. 07-CF-424 ) DANIEL JUK, ) Honorable ) Brian D. Lewis, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.

ORDER

¶1 Held: We affirm the dismissal, at the second stage of proceedings, of the defendant’s amended petition for postconviction relief, because the defendant received a reasonable level of assistance from postconviction counsel where counsel pointed out to the trial court that everything needed to rule on the petition was contained within the record, and therefore no additional supporting documents were needed.

¶2 The defendant, Daniel Juk, appeals the dismissal, at the second stage of proceedings in

the circuit court of Williamson County, of his amended petition for postconviction relief. For the

following reasons, we affirm.

¶3 I. BACKGROUND

¶4 On November 14, 2008, following a bench trial in the circuit court of Williamson

County, with the Honorable John A. Speroni presiding, the defendant, Daniel Juk, was convicted

of four counts of criminal sexual assault. Thereafter, he was sentenced to consecutive terms of 15 1 years of imprisonment in the Illinois Department of Corrections on each count, for a total term of

60 years. On October 1, 2010, we affirmed his conviction and sentence on direct appeal. See

People v. Juk, No. 5-09-0197 (2010) (unpublished order under Supreme Court Rule 23). On

November 20, 2015, the defendant filed, by postconviction counsel Alexander M. Fine, an

amended petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2014)). Therein, the defendant contended that he received ineffective assistance

of trial counsel, and ineffective assistance of appellate counsel in his direct appeal, noting that he

was represented by the same attorney both at trial and on appeal. Specifically, he contended that

“trial counsel’s multiple errors cumulatively produced more than a reasonable probability that

the results of the proceedings would have been different.” The defendant took issue with trial

counsel’s purported failure to (1) “impeach the [S]tate’s primary witness about inconsistencies

between testimony and statements made to police,” (2) make an offer of proof related to his

failed impeachment, and (3) make a crucial objection during trial. Also on November 20, 2015,

Fine filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).

On June 16, 2016, the State filed a motion to dismiss the amended petition, as well as an

accompanying 25-page memorandum of law.

¶5 On October 28, 2016, a hearing was held on the State’s motion to dismiss. Because Judge

Speroni had retired, the case was assigned to the Honorable Brian D. Lewis. At the hearing, the

defendant was represented by new postconviction counsel, Therese H. Thien, who on June 17,

2016, had been appointed to replace attorney Fine. Thien noted that one argument raised by the

State in its motion to dismiss was that Fine had failed to attach to the amended petition “certain

supporting documents to support the petition.” Thien asked Judge Lewis “to take judicial notice”

that everything raised in the amended petition was “actually of record in this case,” and that all

the allegations were “supported by the actual trial transcripts, motions, briefs, and the Rule 23 2 order,” rendering “any additional documentation *** a bit redundant.” As she argued for why the

amended petition was sufficient to withstand a motion to dismiss, she contended that, “[t]he

record in this case is replete with the defects that we have raised.” When asked to respond to the

defendant’s argument, the State noted, inter alia, that “all of this is in the trial record, the

transcript, as Ms. Thien previously stated.” In rebuttal to the State’s arguments to dismiss the

amended petition, Thien stated, inter alia, that she believed “the petition, the supporting

transcripts that are in the record actually meet the burden of making a substantial showing” of a

constitutional violation, and therefore the defendant was entitled to an evidentiary hearing.

Following the hearing, Judge Lewis took the motion to dismiss under advisement, noting that

because “Judge Speroni tried the case, I will go back and read the transcripts and get you all a

decision just as soon as possible.” Thereafter, Thien asked to make a record that she had

considered whether she needed to file a certificate of compliance with Illinois Supreme Court

Rule 651(c) (eff. Feb. 6, 2013), in light of the fact that she was adopting Fine’s amended petition,

and that “[j]ust to make sure,” she wished to file one. Thien thereafter tendered to Judge Lewis,

and he accepted for filing, Thien’s certificate of compliance. 1

¶6 On December 8, 2016, Judge Lewis entered an order, by docket entry, in which he

granted the State’s motion to dismiss the amended petition. In his order, Judge Lewis first stated

he had “now reviewed the entire trial transcripts, including post-trial motions and sentencing,”

and had “reviewed all pending motions, responses, and briefs.” He reasoned that the motion to

dismiss should be granted because the defendant was unable to “show that, but for trial counsel’s

errors, the result of the bench trial would have been different.” Judge Lewis stated that trial

counsel “vigorously defended” the defendant, and noted the numerous filings trial counsel had

1 The certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) signed by Thien is file stamped in the record on appeal with the date of “December 13, 2016.” In the certificate, Thien stated, inter alia, that no further amendments to the amended petition filed by Fine were required. 3 made on the defendant’s behalf. He ruled that trial counsel’s failure to impeach the victim

notwithstanding, “the inconsistencies in the victim’s statements (plural) were pointed out to

Judge Speroni,” and that “Judge Speroni’s decision to find [the defendant] guilty was due to

Judge Speroni’s finding that he did not believe the [d]efendant.” Judge Lewis added that

“[n]othing trial counsel could have done could have cured that deficiency.” This timely appeal

followed.

¶7 II. ANALYSIS

¶8 On appeal, the defendant’s sole contention is that postconviction counsel failed to

provide the defendant with the reasonable level of assistance of counsel required by the Act,

because postconviction counsel failed to offer support for the claims in the amended petition.

The defendant does not contend that Judge Lewis erred in dismissing the amended petition, and

does not take issue with any of Judge Lewis’s findings of fact or conclusions of law. We begin

our analysis with an overview of some of the general principles of law applicable at the second

stage of proceedings under the Act, and applicable to this case in particular. When, at the second

stage of proceedings, the State has filed a motion to dismiss a petition, the trial court is

concerned merely with determining whether the petition’s allegations sufficiently demonstrate a

constitutional infirmity that would necessitate relief under the Act. People v. Coleman, 183 Ill.

2d 366, 380 (1998). At this stage, “the defendant bears the burden of making a substantial

showing of a constitutional violation” and “all well-pleaded facts that are not positively rebutted

by the trial record are to be taken as true.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The

trial court reviews the petition’s factual sufficiency as well as its legal sufficiency in light of the

trial court record and applicable law. People v. Alberts, 383 Ill. App. 3d 374, 377 (2008). We

review de novo the trial court’s dismissal of a postconviction petition at the second stage.

Pendleton, 223 Ill. 2d at 473. As the defendant correctly notes, the Act provides for a reasonable 4 level of assistance from appointed counsel. See, e.g., People v. Perkins, 229 Ill. 2d 34, 42 (2007).

As the defendant acknowledges, a certificate of compliance with Illinois Supreme Court Rule

651(c) (eff. Feb. 6, 2013) creates a rebuttable presumption that reasonable assistance was

provided. See, e.g., id. at 52. However, that presumption may be rebutted by the record. People

v. Russell, 2016 IL App (3d) 140386, ¶ 10. It is the defendant who bears the burden of rebutting

the presumption by showing that the defendant’s postconviction counsel failed to substantially

comply with the rule. See, e.g., People v. Profit, 2012 IL App (1st) 101307, ¶ 19. “Whether

postconviction counsel provided a reasonable level of assistance in compliance with Supreme

Court Rule 651(c) is reviewed de novo.” Russell, 2016 IL App (3d) 140386, ¶ 10.

¶9 We now turn to the defendant’s sole contention on appeal: that counsel failed to provide

the defendant with the reasonable level of assistance of counsel required by the Act, because

counsel failed to offer support for the claims in the amended petition. Specifically, the defendant

claims postconviction counsel should have attached to the amended petition “police statements

or a summary of the inconsistencies in [the victim’s] testimony, or *** an offer of proof for [the

impeaching witness’s] proposed testimony.” The defendant posits that these documents were

necessary for Judge Lewis “to know the exact nature of the inconsistencies available to impeach

[the victim], and the substance of [the impeaching witness’s] omitted testimony.”

¶ 10 In response, the State notes that postconviction counsel pointed out to Judge Lewis that

everything that was needed to rule on the amended petition was contained within the case file. In

particular, as detailed above, Thien asked Judge Lewis “to take judicial notice” that everything

raised in the amended petition was “actually of record in this case,” and that all the allegations

were “supported by the actual trial transcripts, motions, briefs, and the Rule 23 order,” rendering

“any additional documentation *** a bit redundant.” As she argued for why the amended petition

was sufficient to withstand a motion to dismiss, she contended that, “[t]he record in this case is 5 replete with the defects that we have raised.” When asked to respond to the defendant’s

argument, the State noted, inter alia, that “all of this is in the trial record, the transcript, as Ms.

Thien previously stated.” In rebuttal to the State’s arguments to dismiss the amended petition,

Thien stated, inter alia, that she believed “the petition, the supporting transcripts that are in the

record actually meet the burden of making a substantial showing” of a constitutional violation,

and that therefore the defendant was entitled to an evidentiary hearing.

¶ 11 We agree with the State that in light of the foregoing, there was no need for counsel to

attach anything to the amended petition, and thus counsel complied with Rule 651(c). Moreover,

we reiterate that Judge Lewis stated, when he took the motion to dismiss under advisement, that

because “Judge Speroni tried the case,” Judge Lewis would “go back and read the transcripts”

before rendering a decision. In addition, when he issued the order on appeal in this case, Judge

Lewis stated that he had “now reviewed the entire trial transcripts, including post-trial motions

and sentencing,” and had “reviewed all pending motions, responses, and briefs.” He reasoned

that the motion to dismiss should be granted because the defendant was unable to “show that, but

for trial counsel’s errors, the result of the bench trial would have been different.” Judge Lewis

stated that trial counsel “vigorously defended” the defendant, and noted the numerous filings trial

counsel had made on the defendant’s behalf. He ruled that trial counsel’s failure to impeach the

victim notwithstanding, “the inconsistencies in the victim’s statements (plural) were pointed out

to Judge Speroni,” and that “Judge Speroni’s decision to find [the defendant] guilty was due to

Judge Speroni’s finding that he did not believe the [d]efendant.” Judge Lewis added that

“[n]othing trial counsel could have done could have cured that deficiency.” In other words, Judge

Lewis in no way found the amended petition defective because it lacked supporting

documentation other than that in the case file; accordingly, the defendant has failed to convince

this court that postconviction counsel failed to provide reasonable assistance. In fact, the record 6 shows that Thien achieved her goal of having the trial judge consider all of the relevant materials

before making his ruling, without her needing to supply any additional documentation. The

defendant has pointed to nothing to show that she did not. Accordingly, there is nothing in the

record to rebut postconviction counsel’s certificate of compliance with Rule 651(c) (see, e.g.,

Profit, 2012 IL App (1st) 101307, ¶ 19 (defendant bears burden of rebutting presumption by

showing defendant’s postconviction counsel failed to substantially comply with Rule 651(c))),

and we conclude the defendant received the reasonable level of assistance of counsel required by

the Act.

¶ 12 III. CONCLUSION

¶ 13 For the foregoing reasons, we affirm the dismissal, at the second stage of proceedings, of

the defendant’s amended petition for postconviction relief.

¶ 14 Affirmed.