2014 IL App (2d) 130327 No. 2-13-0327 Opinion filed October 6, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 05-CF-661 ) GLENN A. YAWORSKI, ) Honorable ) Robbin J. Stuckert, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion. Justice Spence dissented, with opinion.
OPINION
¶1 Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A.
Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of
section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West 2004))
and driving while his license was revoked (DWLR) (625 ILCS 5/6-303(a) (West 2004)).
Defendant received a Class 2 felony sentence of 3½ years’ imprisonment for DUI pursuant to
section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004)). The trial court
vacated the DWLR conviction. In an earlier appeal, we affirmed defendant’s DUI conviction
and his sentence for that offense. People v. Yaworski, 2011 IL App (2d) 090785 (Yaworski I). In 2014 IL App (2d) 130327
addition, we reinstated defendant’s DWLR conviction. Thereafter, on February 29, 2012,
defendant, while on mandatory supervised release (MSR), filed a pro se petition under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)), challenging the
enhancement of the offense of DUI to a Class 2 felony. The trial court appointed the office of
the De Kalb County public defender to represent defendant in the postconviction proceedings.
Assistant Public Defender Charles Criswell appeared on defendant’s behalf. Criswell had
represented defendant at trial. The State successfully moved to dismiss defendant’s petition and
this appeal followed. Defendant argues that, because the petition claimed that he had not
received the effective assistance of counsel at trial, Criswell labored under a conflict of interest
in the postconviction proceedings. We agree, and we therefore vacate and remand for further
proceedings.
¶2 As pertinent here, section 11-501(c-1)(3) of the Code provides that a fourth or subsequent
DUI is a nonprobationable Class 2 felony if the offense occurred while the offender’s driving
privileges were suspended or revoked for a violation of section 11-501(a) of the Code. After the
jury returned its verdict at defendant’s trial, the trial court ordered the preparation of a
presentencing investigation report (PSI). The PSI showed that defendant had an extensive
criminal history that included five prior DUI convictions. (A sixth prior DUI conviction had
been reversed.) At his sentencing hearing, defendant claimed that the PSI was inaccurate and
that it listed 24 offenses of which he had not been convicted, among them a 1989 DUI that
occurred in Cook County. In Yaworski I, defendant argued that the trial court erred in relying on
the PSI to enhance his offense to a Class 2 felony. He noted that the PSI indicated that the 1989
Cook County DUI resulted in the revocation of his license in 2005. Similarly, the PSI listed a
1989 McHenry County DUI that resulted in the revocation of his license in 2005. Defendant
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argued that “ ‘[t]he unlikelihood of DUI tickets languishing for 16 years before dispositions
gives reason to doubt the accuracy of both listings specifically, and the rest of the listings in
general.’ ” Yaworski I, 2011 IL App (2d) 090785, ¶ 4. We rejected the argument, observing that
defendant’s driving abstract (which was prima facie evidence of the facts set forth therein)
indicated that defendant had five prior DUI convictions and that, even if the 1989 Cook and
McHenry County offenses had not occurred, the DUI in the present case would still be
defendant’s fourth. Id. ¶¶ 6-7.
¶3 In his pro se postconviction petition, defendant alleged that “[s]ince the date of his
release from the Department of Corrections, [defendant] has discovered documentation to
establish his claim that several of what were listed in his presentence report as being prior
convictions of his were in fact attributable to other individuals.” Defendant added that “[t]his
documentation establishes that the petitioner was denied his rights to due process of law and
effective assistance of trial counsel.” (Emphasis added.) Criswell did not amend the pro se
petition, but he did submit to the court a “mug shot” of the arrestee in one of the cases listed in
defendant’s PSI. Criswell argued that the mug shot was a photograph of someone other than
defendant. In its written order granting the State’s motion to dismiss the petition, the trial court
appeared to conclude that the issue raised in defendant’s petition had been decided on direct
appeal and was thus barred under the doctrine of res judicata. See, e.g., People v. Davis, 2014
IL 115595, ¶ 13.
¶4 At issue in this appeal is whether it was error for defendant’s trial attorney, Criswell, to
represent defendant in postconviction proceedings initiated by a pro se petition asserting a claim
of ineffective assistance of counsel at trial. Before considering that issue, we must first address
the State’s argument that this appeal is moot. “An appeal is considered moot where it presents
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no actual controversy or where the issues involved in the trial court no longer exist because
intervening events have rendered it impossible for the reviewing court to grant effectual relief to
the complaining party.” In re J.T., 221 Ill. 2d 338, 349-50 (2006). It is undisputed that
defendant has now fully served his sentence. The State argues that “[t]he only ultimate relief
possible here for defendant would be a reduction of his sentence, but having already served that
sentence, no court could give defendant effectual relief.” We disagree. Further postconviction
proceedings could conceivably result in reduction of the degree of the offense, which stands now
as a Class 2 felony. “Exceptions to the mootness doctrine apply where: (1) the case presents a
question of public import that will likely recur and the answer to that question will provide
guidance to public officers in the performance of their duties; (2) the case involves events of
short duration that are capable of repetition yet evading review; and (3) collateral consequences
of the order could return to plague the [defendant] in some future proceeding or could affect
other aspects of the [defendant’s] life.” In re Dawn H., 2012 IL App (2d) 111013, ¶ 13. The
third exception applies here. The conviction of a Class 2 felony could “plague” defendant in
some future proceeding. For example, it might make him eligible for an extended-term sentence
if he is convicted of a criminal offense in the future. See 730 ILCS 5/5-5-3.2(b)(1) (West 2012).
Accordingly, the appeal is properly before us, and we turn to the merits. 1
¶5 Under the Act, a person imprisoned for a crime may mount a collateral attack on his
conviction and sentence based on violations of his constitutional rights. People v. Erickson, 183
Ill. 2d 213, 222 (1998). Proceedings under the Act are divided into three stages. People v.
Gaultney, 174 Ill. 2d 410, 418 (1996). During the first stage, the trial court independently
1 Further, as noted above, the parties agree that defendant was serving his term of MSR
when he filed the postconviction petition, and, therefore, he has standing.
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examines the petition within 90 days after it is filed and docketed. 725 ILCS 5/122-2.1(a) (West
2012). If the petition is frivolous or patently without merit, it will be summarily dismissed. 725
ILCS 5/122-2.1(a)(2) (West 2012). If the petition is not dismissed at the first stage, it proceeds
to the second stage, at which an indigent defendant is entitled to appointed counsel, the petition
may be amended, and the State may answer or move to dismiss the petition. Gaultney, 174 Ill.
2d at 418. A petition that is not dismissed at the first or second stage advances to the third stage,
at which an evidentiary hearing is held. Id.
¶6 The right to counsel when a postconviction petition advances to the second stage (as
defendant’s petition did here) is statutory, not constitutional. People v. Davis, 382 Ill. App. 3d
701, 709 (2008). Under the Act, “defendants are entitled to a reasonable level of assistance, but
are not assured of receiving the same level of assistance constitutionally guaranteed to criminal
defendants at trial.” People v. Kegel, 392 Ill. App. 3d 538, 541 (2009). “The Act impose[s]
duties on postconviction counsel to ensure that a prisoner’s complaints [are] adequately
presented, and the statute envision[s] that the attorney appointed to represent an indigent person
[will] ascertain the basis of his complaints, shape those complaints into appropriate legal form
and present the [defendant’s] constitutional contentions to the court.” People v. Schlosser, 2012
IL App (1st) 092523, ¶ 18.
¶7 In People v. Hardin, 217 Ill. 2d 289 (2005), our supreme court developed a procedure for
determining whether an attorney from the public defender’s office may represent a defendant in
proceedings on a postconviction petition alleging that another attorney from the same office
failed to provide effective assistance at trial. In Hardin, our supreme court stated:
“The right to effective assistance of trial counsel comes from the sixth amendment
and includes the correlative right to conflict-free representation. [Citations.] There is no
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corresponding constitutional right to effective assistance of postconviction counsel.
[Citation.] The right to assistance of counsel in postconviction proceedings is a matter of
legislative grace, and a defendant is guaranteed only the level of assistance provided by
the Post-Conviction Hearing Act. [Citation.] We have labeled that level ‘reasonable’
assistance. [Citation.]
However, when a defendant’s appointed postconviction attorney is called upon to
assert that the defendant’s appointed trial attorney was ineffective, the distinction
between constitutional and statutory rights makes no difference. If postconviction
counsel is appointed to mold the defendant’s allegations into legally cognizable shapes
[citation], that counsel must be as conflict-free as trial counsel. [Citation.] The right to
reasonable assistance of postconviction counsel includes the correlative right to conflict-
free representation. [Citation.]” (Emphasis added.) Id. at 299-300.
¶8 The Hardin court explained that, if a potential conflict of interest comes to the trial
court’s attention early in proceedings under the Act, the trial court has a duty to investigate. Id.
at 302-03. The Hardin court elaborated as follows:
“In the context of a potential conflict between two public defenders, the conflict
issue will normally be raised by the defendant. *** The defendant must sketch, in
limited detail, a picture of how the working relationship between the public defenders
created an appearance of impropriety. [Citation.] Relevant factors include whether the
two public defenders were trial partners in the defendant’s case [citations]; whether they
were in hierarchical positions where one supervised or was supervised by the other
[citations]; or whether the size, structure, and organization of the office in which they
worked affected the closeness of any supervision [citations].” Id. at 303.
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¶9 Hardin entails a case-by-case inquiry when a different attorney from the public
defender’s office is appointed to advance a claim that trial counsel was ineffective. However,
the factors identified in Hardin essentially bear on how closely postconviction counsel’s interests
are aligned with trial counsel’s: the more closely aligned, the more likely that a potential conflict
of interest will be found to exist. When trial counsel and postconviction counsel are one and the
same, the interests are identical and the potential conflict of interest is inherent.
¶ 10 Therefore, in our view, it is improper to appoint an attorney as postconviction counsel to
pursue a claim that his or her own performance as trial counsel was incompetent. We hasten to
add that our holding is limited to cases where trial counsel’s competence is at issue, as
distinguished from cases where an ineffectiveness claim is based on external factors. See People
v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 17 (“Defendant alleged that his trial counsel was
unable to provide effective assistance because the trial court and the prison failed to allow
communication with counsel and to allow access to discovery materials.”).
¶ 11 The State argues that it was not a per se conflict of interest for Criswell to represent
defendant in postconviction proceedings in which the competence of Criswell’s performance as
trial counsel was at issue. According to the State, absent a per se conflict, People v. Moore, 207
Ill. 2d 68 (2003), provides that defendant’s right to counsel other than Criswell depends on the
merits of the underlying ineffective-assistance-of-counsel claim. The issue in Moore was
whether trial counsel could continue to represent the defendant in proceedings on the defendant’s
posttrial motion. The defendant in Moore had moved, pro se, for appointment of new counsel.
As described by the Moore court, the defendant’s motion complained that “ ‘no line of
meaningful communication was established’ between defendant and trial counsel, whose ‘entire
attitude’ showed that counsel was unconcerned with the defense of the case.” Id. at 77. The
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Moore court held that “when a defendant presents a pro se posttrial claim of ineffective
assistance of counsel, the trial court should first examine the factual basis of the defendant’s
claim.” Id. at 77-78. The trial court should appoint new counsel “if the allegations show
possible neglect of the case.” Id. at 78. On the other hand, the trial court is not obligated to
appoint new counsel if it finds that “the claim lacks merit or pertains only to matters of trial
strategy.” Id.
¶ 12 The Moore court described the procedure to be followed when the defendant files a pro
se posttrial motion claiming ineffective assistance of counsel. Here, in contrast, defendant’s
claim of ineffective assistance of counsel appears in a pro se petition under the Act. Although
the State argues that defendant here is “[e]ssentially *** no different from a defendant who
makes a pro se posttrial allegation of ineffective assistance of counsel,” the State cites no case,
nor are we aware of any, extending the procedure described in Moore to proceedings under the
Act.
¶ 13 The State maintains that this case “is not a case where the allegations of ineffective
assistance [of counsel] are impossible to determine without further investigation by independent
counsel.” The State’s assertion flies in the face of the trial court’s decision to appoint counsel;
that decision signifies that the trial court found that the petition was not frivolous or patently
without merit. What the State seeks by virtue of its argument is, for all practical purposes, to
relitigate the first-stage decision in defendant’s favor, so as to retroactively deprive him of his
right to counsel under the Act. We are aware of no precedent that would permit us to do so.
Moreover, if that approach were permissible in postconviction proceedings, the analysis in
Hardin might often yield the incongruous result that the assistant public defender who
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represented the defendant at trial could serve as postconviction counsel under circumstances
where a different public defender would be disqualified from doing so.
¶ 14 Once a pro se postconviction petition has cleared the first-stage hurdle, the Act affords
the defendant the right to an attorney with undivided loyalty who, as noted, will “ascertain the
basis of his complaints, shape those complaints into appropriate legal form and present the
[defendant’s] constitutional contentions to the court.” Schlosser, 2012 IL App (1st) 092523,
¶ 18. Precisely what shape defendant’s petition might have taken if an attorney other than
Criswell had represented defendant in the postconviction proceedings is a matter of conjecture.
We decline to speculate whether Criswell failed to amend the petition because there was no
good-faith basis for arguing his own incompetence or, conversely, because there was a good-
faith basis for doing so but Criswell was inhibited by self-interest.
¶ 15 For the foregoing reasons, we vacate the dismissal of defendant’s petition and remand for
further proceedings. On remand, the court shall appoint an attorney other than Criswell to
represent defendant.
¶ 16 Vacated and remanded with directions.
¶ 17 JUSTICE SPENCE, dissenting.
¶ 18 I respectfully dissent. As the majority states, the issue on appeal is whether it was error
for defendant’s trial attorney, Criswell, to represent defendant in postconviction proceedings
after defendant filed a pro se petition alleging ineffective assistance of counsel. Supra ¶ 4. The
majority concludes that it is improper to appoint an attorney as postconviction counsel to pursue
a claim that his or her own performance as trial counsel was incompetent, because the potential
conflict of interest is “inherent.” Supra ¶ 9. While I agree with the majority that the better
practice is to have an attorney other than the trial attorney represent the defendant in
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postconviction proceedings when the defendant raises a claim of ineffective assistance of
counsel, I see no reason for the blanket rule established by the majority, especially where the
defendant has not suggested a potential conflict of interest to the trial court.
¶ 19 Defendants are guaranteed “reasonable” assistance in postconviction proceedings (People
v. Hardin, 217 Ill. 2d 289, 299 (2005)) and not the same level of assistance constitutionally
guaranteed to criminal defendants at trial (People v. Kegel, 392 Ill. App. 3d 538, 541 (2009)).
For this reason, I am persuaded by the State’s reliance on People v. Moore, 207 Ill. 2d 68, 75
(2003), where the issue was whether trial counsel could continue to represent the defendant on
his posttrial motion after he filed a pro se posttrial claim of ineffective assistance of counsel. In
Moore, the supreme court held that in such a situation new counsel is not automatically required;
rather, the trial court should first examine whether the defendant’s claim lacks merit. Id. at 77-
78. If the claim lacks merit, then the court need not appoint new counsel and may deny the pro
se motion. Id. at 78. If this is the approach in criminal trial proceedings, where defendants are
guaranteed constitutionally effective assistance as opposed to reasonable assistance, I see no
reason why it should not be the approach here.
¶ 20 In this case, the trial court properly determined that defendant’s claim lacked merit. A
claim of ineffective assistance of counsel is assessed under the standards articulated in Strickland
v. Washington, 466 U.S. 668 (1984). People v. Brown, 236 Ill. 2d 175, 185 (2010). The failure
to establish either prong of Strickland is fatal to the claim. People v. Clendenin, 238 Ill. 2d 302,
317-18 (2010). If it is easier to dispose of such a claim on the basis that it lacks sufficient
prejudice, then the court may proceed directly to the second prong and need not address whether
counsel’s performance was deficient. People v. Givens, 237 Ill. 2d 311, 331 (2010).
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¶ 21 In defendant’s pro se petition for postconviction relief, defendant provided some
evidence that someone other than himself used his identity for two traffic cases, and he submitted
copies of booking photos for those two offenses. Both of the offenses were traffic offenses other
than DUI. Defendant has raised questions about two of the five prior DUI convictions set forth
in the PSI, but has never contested the other three DUI convictions. Even assuming, for the sake
of argument, that we disregard the two DUI convictions defendant has contested, defendant still
has three prior DUI convictions that he has never contested and does not now contest. I would
take defendant at his word that he has the three prior DUI convictions, because he knows his
history better than anyone. For purposes of the sentence in this case, defendant remains with at
least three unchallenged prior DUI convictions, which, as pointed out by the majority, result in
this conviction being defendant’s fourth conviction and therefore still a nonprobationable Class 2
felony. Defendant received a Class 2 felony sentence. Accordingly, he has failed to establish
the prejudice prong of Strickland, and thus his ineffective-assistance-of-counsel claim fails.
¶ 22 As a final matter, I do not believe that Hardin, the case relied upon by the majority,
dictates a different outcome. In Hardin, the issue was whether the trial court should have
conducted an inquiry to ensure that there was no conflict of interest between the defendant’s
postconviction public defender and a different trial public defender. Hardin, 217 Ill. 2d at 299.
While I agree with the majority that Hardin entails a case-by-case inquiry as to how closely
postconviction counsel’s interests are aligned with trial counsel’s, Hardin still requires a
defendant to present facts suggesting a conflict of interest to the trial court. Id. at 302-03.
Admittedly, the pleading threshold is low (id. at 303), but at no time in the proceedings below
did defendant in this case suggest a conflict of interest based on having trial counsel serve as
postconviction counsel. Absent defendant’s suggestion of a conflict of interest to the trial court,
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I believe that it is a stretch for the majority to presume one. In my opinion, Hardin is
distinguishable and does not lead to the conclusion that the potential conflict of interest in this
case is inherent.
¶ 23 As stated above, I believe that our supreme court’s decision in Moore, rather than
Hardin, provides the sounder approach in this case. Because the trial court correctly determined
that defendant’s claim lacked merit, I would affirm the dismissal of defendant’s postconviction
petition.
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