People v. Rooks

2020 IL App (5th) 170035-U

• Court: Appellate Court of Illinois
• Decided: January 28, 2020
• Docket: 5-17-0035
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 170035-U NOTICE Decision filed 01/28/20. The This order was filed under text of this decision may be NO. 5-17-0035 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition 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, ) Madison County. ) v. ) No. 92-CF-1017 ) JEDENE RANDOLPH ROOKS, ) Honorable ) Jennifer L. Hightower, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE WHARTON delivered the judgment of the court. Presiding Justice Welch and Justice Overstreet concurred in the judgment.

ORDER

¶1 Held: Where appointed counsel for defendant, Jedene Randolph Rooks, failed to ensure that the existing claims alleged by Rooks in his pro se section 2-1401 (735 ILCS 5/2-1401 (West 2010)) petition were properly presented to the court and failed to allege available facts to overcome the applicable two-year limitations period, we reverse the trial court’s judgment denying the section 2-1401 petition filed by appointed counsel and remand this case to the trial court for appointment of new counsel and further proceedings.

¶2 Defendant, Jedene Randolph Rooks (Rooks), pled guilty to unlawful possession

with intent to deliver cocaine (Ill. Rev. Stat. 1989, ch. 56½, ¶ 1401(c)(2) (now at 720

ILCS 570/401(c)(2) (West 2016))) on December 10, 1993, in exchange for a six-year

term of imprisonment that was to be served concurrently with a federal sentence. On

1 January 31, 2013, Rooks filed a pro se petition for relief pursuant to section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) based upon new information

he learned after obtaining documents pursuant to a Freedom of Information Act request. 5

ILCS 140/1 et seq. (West 2010). The trial court sua sponte dismissed Rooks’s petition on

February 11, 2013, finding that the petition was untimely and otherwise did not “fall

within any category of collateral remedies that would be available to Defendant.” Rooks

appealed to this court and we vacated the dismissal because the trial court erred in

dismissing his petition less than 30 days after it was filed. People v. Rooks, No.

5-13-0102 (2014) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

Upon remand from this court, counsel was appointed to represent Rooks in late March

2015. Counsel did not initially file an amended 2-1401 petition. Instead, he filed a

petition for writ of habeas corpus. Counsel eventually withdrew that petition and filed a

2-1401 petition incorporating the same arguments from the habeas corpus petition. On

December 21, 2016, the trial court granted the State’s motion to dismiss this petition and

denied the 2-1401 petition. Rooks sought leave to proceed on a pro se basis with his

original 2-1401 petition, but the trial court disallowed this request. Rooks appeals from

the trial court’s denial of his motion for reconsideration of that order.

¶3 We have jurisdiction over this appeal pursuant to article VI, section 6 of the

Illinois Constitution and Illinois Supreme Court Rules 301 and 304(b)(3). Ill. Const.

1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 304(b)(3) (eff. Jan. 1,

1989).

2 ¶4 BACKGROUND

¶5 Rooks filed his pro se section 2-1401 petition for relief on January 31, 2013.

Rooks submitted numerous “newly discovered” facts stemming from his Freedom of

Information Act request. Using these new facts, Rooks then argued that the State’s

Attorney’s presentation of the evidence against him at his plea hearing was erroneous and

thus the judgment was based on an insufficient factual basis. Rooks asserted that if the

State’s Attorney had presented the true and accurate facts to the trial court, the court

could have found that the State lacked sufficient evidence to establish the elements of the

offense. Rooks also alleged that the State’s Attorney improperly withheld and/or failed to

provide this potentially exculpatory evidence from Rooks, his trial attorney, and the

court.

¶6 The trial court appointed counsel to represent Rooks in March 2015. Rooks

registered his dissatisfaction with his counsel by writing letters to the court and filing a

motion to have a different attorney appointed. According to these letters and the motion,

Rooks had not heard from his attorney except for receipt of a July 2015 letter by which

the attorney stated that he was unsure of what Rooks wanted to accomplish. The trial

court held a prehearing conference on May 20, 2016, and noted in its order that the

attorney appointed to represent Rooks indicated that he would “soon” be presenting

Rooks with a rough draft of a pleading.

¶7 On July 5, 2016, Rooks’s attorney filed a petition for writ of habeas corpus in

which he alleged that the 1993 plea deal Rooks accepted was the result of an “over-

zealous prosecution” and that he received ineffective assistance of counsel because his 3 attorney had not adequately reviewed discovery or conferred with Rooks about the

offered plea deal. The theory advanced in this pleading was that the State’s charges

resulted in a meaningless conviction because Rooks served his state sentence concurrent

with his federal conviction. In other words, the conviction was meaningless because the

State would have sought consecutive sentencing if it really had intended to punish Rooks.

¶8 Rooks wrote a letter to the trial court indicating that he disagreed with the

attorney’s decision to file the petition for writ of habeas corpus and that he had not been

provided with a draft of the petition before it was filed. On August 29, 2016, the trial

court granted Rooks’s counsel 30 additional days in which to amend or adopt Rooks’s

January 31, 2013, pro se section 2-1401 petition.

¶9 On October 12, 2016, Rooks’s counsel withdrew the habeas corpus petition. The

trial court entered its order granting Rooks’s counsel an additional 45 days to amend or

adopt Rooks’s pro se petition.

¶ 10 On December 9, 2016, Rooks’s counsel filed a section 2-1401 petition. This

petition contained the identical arguments Rooks’s counsel advanced in the

habeas corpus petition. The petition contained none of the facts and arguments Rooks

had included in his pro se petition.

¶ 11 On December 15, 2016, Rooks’s appointed counsel filed his Supreme Court Rule

651(c) (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)) certificate stating that he had consulted

with Rooks by mail to ascertain his claim of deprivation of constitutional rights; that he

had examined the trial court file and report of proceedings of Rooks’s guilty plea; and

4 that he had made amendments to Rooks’s pro se petition necessary for an adequate

presentation of his claims.

¶ 12 The State filed a motion to dismiss, arguing that Rooks’s section 2-1401 petition

was untimely and failed to state a cognizable claim for relief. The State also claimed that

Rooks waived all issues because he failed to seek to withdraw his plea of guilt, failed to

file a direct appeal, and/or failed to file a petition for postconviction relief.

¶ 13 On December 21, 2016, the trial court granted the motion to dismiss and denied

the 2-1401 petition. The court found that Rooks’s allegations of ineffective assistance of

trial counsel were not appropriate for section 2-1401 review because the allegations did

not challenge the factual basis for the judgment. The court also found that the petition

was untimely.

¶ 14 On January 3, 2017, Rooks filed a pro se motion to discharge counsel and to allow

him to proceed pro se. He also asked the trial court to consider his original section

2-1401 petition. The court granted Rooks’s motion to discharge his appointed counsel

and advised him of his right to appeal. Rooks filed a motion for reconsideration arguing

in part that appointed counsel failed to comply with Supreme Court Rule 651(c). The trial

court denied the defendant’s motion for reconsideration on January 25, 2017.

¶ 15 ANALYSIS

¶ 16 On appeal, Rooks raises two issues: (1) whether his due process rights were

violated when the trial court granted the State’s motion to dismiss his section 2-1401

petition without first allowing Rooks the opportunity to respond and/or before the petition

was ripe for adjudication; and (2) whether his appointed counsel’s failure to amend his 5 section 2-1401 petition to allege facts that would overcome the two-year limitations

period amounted to ineffective assistance of counsel warranting reversal.

¶ 17 Section 2-1401 (735 ILCS 5/2-1401 (West 2012)) provides an extensive statutory

process to challenge final orders and judgments more than 30 days after entry. People v.

Vincent, 226 Ill. 2d 1, 14, 871 N.E.2d 17, 26-27 (2007). In order to obtain relief, the

section 2-1401 petition must set forth specific factual allegations supporting three

elements: (1) the existence of a meritorious claim or defense; (2) due diligence on the

part of the petitioner in presenting the claim or defense to the trial court; and (3) due

diligence in filing the section 2-1401 petition. In re Marriage of Callahan, 2013 IL App

(1st) 113751, ¶ 17, 984 N.E.2d 531. Although section 2-1401 is a civil remedy, the

statute applies to criminal cases as well. Vincent, 226 Ill. 2d at 7. “A section 2-1401

petition for relief from a final judgment is the forum in a criminal case in which to correct

all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and

court at the time judgment was entered, which, if then known, would have prevented its

rendition.” (Internal quotation marks omitted.) People v. Pinkonsly, 207 Ill. 2d 555, 566,

802 N.E.2d 236, 243 (2003) (quoting People v. Haynes, 192 Ill. 2d 437, 461, 737 N.E.2d

169, 182 (2000)). However, a section 2-1401 petition is not intended to provide the

petitioner with a general review of all trial errors, such as ineffective assistance of

counsel. See People v. Berland, 74 Ill. 2d 286, 314, 385 N.E.2d 649, 662 (1978);

Pinkonsly, 207 Ill. 2d at 565.

¶ 18 A section 2-1401 petition “must be filed not later than 2 years after the entry of the

order or judgment.” 735 ILCS 5/2-1401(c) (West 2012). “[W]here a section 2-1401 6 petition is filed beyond two years after the judgment was entered, it cannot be

considered.” People v. Caballero, 179 Ill. 2d 205, 210-11, 688 N.E.2d 658, 660 (1997).

Courts must adhere to this two-year limitations period unless there is a clear showing that

the petitioner is under a legal disability or duress or if the grounds for relief had been

fraudulently concealed. Id. at 211; Berland, 74 Ill. 2d at 317.

¶ 19 When a trial court dismisses a petition for relief of judgment pursuant to section 2-

1401, our review is de novo. Vincent, 226 Ill. 2d at 14-17.

¶ 20 We begin with the second issue raised by Rooks because the issue is dispositive.

Furthermore, the State concedes the issue. In this case, Rooks’s appointed counsel failed

to properly amend the section 2-1401 petition to allege any set of facts that could

potentially excuse the two-year limitations period.

¶ 21 Section 2-1401 contains no guidance on the issue of the requisite level of

assistance that appointed counsel must provide to a section 2-1401 petitioner. People v.

Walker, 2018 IL App (3d) 150527, ¶ 24, 93 N.E.3d 734. The court in People v. Walker

cited to two supreme court cases that provided guidance on this issue: Tedder v. Fairman

and People v. Pinkonsly.

¶ 22 In Tedder v. Fairman, the court concluded that the level of assistance mandated

for appointed counsel in a civil action was the exercise of due diligence. Tedder v.

Fairman, 92 Ill. 2d 216, 227, 441 N.E.2d 311, 315-16 (1982). The supreme court did not

find that appointed counsel was required to provide the same level of service as required

in postconviction petition—reasonable assistance. Id. The Tedder court “ultimately

concluded that the appointed attorneys were required to help the defendants amend their 7 petitions because the trial court had found that their petitions were inadequate and had

appointed counsel to address the deficient petitions.” Walker, 2018 IL App (3d) 150527,

¶ 25 (citing Tedder, 92 Ill. 2d at 226).

¶ 23 In People v. Pinkonsly, the supreme court decided that the appellate court

improperly utilized the Strickland v. Washington standard to find that appointed counsel

had been ineffective. In finding that appointed counsel provided adequate assistance, the

court noted that “[a]ssuming that the defendant was entitled to the same level of

assistance on his section 2-1401 petition as on a postconviction petition, the defendant

did not receive unreasonable assistance.” Pinkonsly, 207 Ill. 2d at 568. The Pinkonsly

court was not asked to determine the appropriate level of assistance to be provided and

therefore did not hold that “appointed counsel in a section 2-1401 proceeding must

satisfy the reasonable assistance requirements reflected in Illinois Supreme Court Rule

651(c) (eff. Feb. 6, 2013).” Walker, 2018 IL App (3d) 150527, ¶ 27.

¶ 24 Although the supreme court’s “reasonable assistance” comment was dicta, the

Walker court concluded that appointed counsel failed to provide adequate assistance

under both the “reasonable assistance” and “due diligence” standards. Id. ¶ 29. Appointed

counsel in Walker believed that his only obligation was to present the claims made in the

defendant’s pro se complaint. Id. ¶ 31. The court stated that while counsel does not have

a duty to raise new or novel claims, “he does have an obligation to ensure that any

existing claims are properly presented to the court.” Id. In the context of the defendant’s

section 2-1401 petition, counsel was required to allege all available facts to overcome the

two-year limitations period. Id. As the defendant’s pro se petition had not included those 8 necessary facts, the petition had been deficient on its face and appointed counsel was

required to amend the defendant’s petition. Id. ¶ 33. The court found that “[a]ppointed

counsel was, therefore, unreasonable for failing to amend the petition to allege available

facts necessary to overcome the procedural bar of timeliness.” Id. ¶ 34. The Walker court

also found that appointed counsel did not exercise due diligence because he failed to

review the transcripts from the underlying proceedings. Id. ¶ 36. The court concluded that

“[b]ecause we find appointed counsel failed to satisfy the reasonable assistance and due

diligence standards, we remand the matter for further proceedings and the appointment of

new counsel.” Id.

¶ 25 In this case, there is no dispute that appointed counsel failed to include any facts

supporting a basis for the untimely filing of the petition or to include or amend any of the

facts and arguments Rooks made in his pro se 2-1401 petition. Rooks had alleged that the

State’s Attorney assigned to the prosecution in 1992 withheld key facts and video that

would have established his innocence of the crime charged. The 2-1401 petition filed by

appointed counsel contained no reference to newly discovered facts—including the

alleged factual reason why Rooks’s petition was not timely filed. As in Walker, because

appointed counsel made no allegations in support of a late filing as was inherently

required by his appointment, his legal representation was inadequate and represented a

lack of due diligence. Walker, 2018 IL App (3d) 150527, ¶ 34 (citing People v. Perkins,

229 Ill. 2d 34, 44, 890 N.E.2d 398, 403 (2007)); Tedder, 92 Ill. 2d at 227.

¶ 26 We make no determination on the merit of Rooks’s allegations, but note that upon

remand, a newly appointed counsel may make his or her own determination. If this new 9 counsel reviews the file and concludes that the claims are without merit, then he or she

cannot in good faith file an amended petition on Rooks’s behalf and must withdraw.

Walker, 2018 IL App (3d) 150527, ¶ 37 (citing People v. Shortridge, 2012 IL App (4th)

100663, ¶ 14, 964 N.E.2d 679); Ill. S. Ct. R. 137 (eff. July 1, 2013). If, however, new

counsel determines that the factual allegations may have merit, then he or she should

amend Rooks’s petition “to adequately present his pro se claims.” Walker, 2018 IL App

(3d) 150527, ¶ 37 (citing Shortridge, 2012 IL App (4th) 100663, ¶ 13).

¶ 27 We do not address the first issue Rooks raised in this appeal because of our

conclusion that this case must be reversed and remanded on Rooks’s second issue.

¶ 28 CONCLUSION

¶ 29 For the reasons stated in this order, we reverse and remand the judgment of

Madison County for further proceedings and for the appointment of new counsel.

¶ 30 Reversed and remanded with directions.