People v. White

751 N.E.2d 594, 322 Ill. App. 3d 982, 256 Ill. Dec. 204, 2001 Ill. App. LEXIS 460
CourtAppellate Court of Illinois
DecidedJune 14, 2001
Docket4 — 00—0434
StatusPublished
Cited by7 cases

This text of 751 N.E.2d 594 (People v. White) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. White, 751 N.E.2d 594, 322 Ill. App. 3d 982, 256 Ill. Dec. 204, 2001 Ill. App. LEXIS 460 (Ill. Ct. App. 2001).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant, Greg White, appeals from the order of the circuit court of Macon County dismissing as frivolous and patently without merit his pro se petition for relief pursuant to section 122 — 2.1(2) of the Post-Conviction Hearing Act (725 ILCS 5/122 — 2.1(2) (West 1998)). The issues are whether (1) the petition stated the gist of a meritorious claim, (2) the cause should be remanded for consideration of defendant’s pro se motion to withdraw the guilty plea filed in the underlying action, and (3) the imposition of consecutive sentences was unconstitutional. We reverse and remand.

In return for the dismissal of a charge of attempt (first degree murder), defendant pleaded guilty to aggravated battery with a firearm (720 ILCS 5/12 — 4.2(a)(1) (West 1996)) and home invasion (720 ILCS 12 — 11(a)(1) (West 1996)). The trial court sentenced defendant to consecutive terms of imprisonment of 25 years for aggravated battery and 15 years for home invasion. Defendant’s motion to reduce his sentence was denied. On direct appeal, this court affirmed the judgment and sentence and remanded the cause to amend the sentencing order to reflect defendant’s eligibility for day-for-day good-time credit under section 3 — 6—3 of the Unified Code of Corrections (Unified Code) prior to the amendments that were later found unconstitutional (see 730 ILCS 5/3 — 6—3 (West 1992)). People v. White, No. 4 — 97—1159 (June 3, 1999) (unpublished order under Supreme Court Rule 23).

Defendant argues that his postconviction petition alleged the gist of a meritorious claim on two grounds, to wit: (1) he was provided ineffective assistance of counsel at the post-guilty-plea-motion stage for the failure to file a sufficient certificate pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d) (as amended effective November 1, 2000; see 188 Ill 2d R. 604(d))) and ineffective assistance of appellate counsel for failing to raise that issue; and (2) defendant’s pro se motion to withdraw his guilty plea was not considered and ruled on prior to his direct appeal and appellate counsel was ineffective for failing to raise that issue on direct appeal. This court considers de nova the sufficiency of the allegations of the postconviction petition. People v. Coleman, 183 Ill. 2d 366, 387-88, 701 N.E.2d 1063, 1075 (1998).

To be entitled to an evidentiary hearing in a postconviction proceeding, defendant’s petition must make a substantial showing of a violation of a constitutional right supported by the record or accompanying affidavits. People v. Coleman, 183 Ill. 2d at 381, 701 N.E.2d at 1072. Defendant’s postconviction petition was supported by his own affidavit.

Ineffective assistance of counsel claims are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Reversal under Strickland requires defendant to prove that (1) the conduct of trial counsel fell below an objective standard of reasonableness (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064) and (2) the deficient performance prejudiced defendant such that a “reasonable probability” exists that the result would have been different but for the deficient performance (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). If it is easier to dispose of a claim for lack of sufficient prejudice accruing to defendant, that course should be taken. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Coleman, 183 Ill. 2d at 397-98, 701 N.E.2d at 1079. We judge claims of ineffective assistance of appellate counsel under the same standards. See People v. Salazar, 162 Ill. 2d 513, 521, 643 N.E.2d 698, 703 (1994). To establish ineffective assistance of appellate counsel, defendant must demonstrate that (1) the failure to raise an issue was objectively unreasonable, and (2) but for the failure to raise the issue, the trial court’s ruling would have been reversed. People v. Flores, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992), quoting People v. Caballero, 126 Ill. 2d 248, 270, 533 N.E.2d 1089, 1096 (1989).

In this case, defendant’s trial counsel did file a Rule 604(d) certificate. We agree with defendant that the certificate was inadequate. Under Rule 604(d), the attorney representing the defendant at the postplea motion stage is required to file:

“a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 145 111. 2d R. 604(d).

Here, the certificate of attorney James R. Coryell stated that he conferred with defendant in the county jail prior to defendant being sent to the Department of Corrections and by mail after defendant’s incarceration. Defendant correctly points out that Coryell failed to specifically state that he consulted with defendant about the contentions of error in the plea and sentence and that he had made any amendment to defendant’s pro se motion to withdraw the guilty plea necessary for adequate presentation of any defects in the proceedings.

In People v. Munetsi, 283 Ill. App. 3d 326, 332-33, 669 N.E.2d 1258, 1263 (1996), overruled on other grounds in People v. Fitzgibbon, 184 Ill. 2d 320, 326, 704 N.E.2d 366, 369 (1998), this court determined that the issue of the adequacy of a Rule 604(d) certificate could not be waived by defendant because strict compliance with the rule was required. Although postplea defense counsel is primarily responsible for compliance, the trial court and the prosecutor are also obligated to ensure compliance. People v. Oliver, 276 Ill. App. 3d 929, 932-33, 659 N.E.2d 435, 438 (1995). In this case, neither the State nor defendant’s appellate counsel on direct appeal brought this deficiency to this court’s attention, nor did this court sua sponte raise the issue. Had the issue been raised on direct appeal, the court could have remanded for strict compliance with Rule 604(d). See People v. Janes, 158 Ill. 2d 27, 35, 630 N.E.2d 790, 793 (1994).

Here, the record establishes the objectively unreasonable performance of Coryell and defendant’s appellate counsel as a matter of law. We next consider whether defendant was prejudiced by counsel’s deficient performances.

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Cite This Page — Counsel Stack

Bluebook (online)
751 N.E.2d 594, 322 Ill. App. 3d 982, 256 Ill. Dec. 204, 2001 Ill. App. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-white-illappct-2001.