People v. Rossi ( 2009 )

No. 03-06-0939
______________________________________________________________________________
CORRECTION Filed January 28, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS ) for the 14th Judicial Circuit,
) Rock Island County, Illinois,
Plaintiff-Appellee, )
)
v. ) 94 CF 561
)
JOHN ROSSI, )
) Honorable James Teros,
Defendant-Appellant. ) Judge, Presiding.
)
______________________________________________________________________________
JUSTICE McDADE delivered the opinion of the court:
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Petitioner, John Rossi, appeals from an order granting the State’s motion to dismiss his
successive postconviction petition under the Illinois Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2004)). Upon review, we affirm.
FACTS
In 1994, petitioner was indicted on one count of aggravated criminal sexual assault
(vaginal intercourse), one count of attempted murder, and one count of aggravated criminal
sexual assault (anal intercourse). The maximum term if petitioner had been convicted of all three
counts was 120 years. Petitioner agreed to plead guilty under an Alford plea in which he did not
admit guilt but pled guilty to minimize his possible sentence. In exchange for his pleas to
aggravated criminal sexual assault (vaginal intercourse) and attempted murder, the State agreed to
dismiss the charge of aggravated criminal sexual assault (anal intercourse) and to a maximum
sentence of 60 years. Before accepting his pleas, the trial court admonished petitioner in
accordance with Supreme Court Rule 402 (177 Ill. 2d R. 402). The court subsequently sentenced
petitioner to 30 years’ imprisonment on each of the two counts and ordered the sentences to run
consecutively. The court dismissed the second count of aggravated criminal sexual assault (anal
intercourse).
Petitioner filed an untimely direct appeal, which we dismissed for lack of jurisdiction.
People v. Rossi, No. 3-96-0480 (1997) (unpublished order pursuant to Supreme Court Rule 23
(166 Ill. 2d R. 23)). Our supreme court denied petitioner’s petition for leave to appeal.
On February 13, 1998, petitioner filed a pro se postconviction petition alleging his trial
counsel was ineffective for failing to perfect his appeal. The trial court granted his postconviction
petition and ordered a hearing on a motion to vacate his guilty pleas. Richard Conklin was
appointed to represent petitioner on his motion to vacate.
Upon the conclusion of the hearing on petitioner’s motion to vacate his guilty pleas, the
trial court found that petitioner’s guilty plea had been voluntary and that trial counsel had not
been ineffective. Thus, the court denied petitioner’s motion to vacate his guilty pleas. Petitioner
appealed this ruling and we affirmed. People v. Rossi, No. 3-99-0629 (2001) (unpublished order
pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Specifically, we stated:
“At the hearing on the motion to withdraw the plea, the
[petitioner] presented evidence that he was acting under an
impairment when he pled guilty. However, the evidence was
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rebutted by the testimony of defense counsel. We hold that the
circuit court did not abuse its discretion in denying the motion to
withdraw the plea.” People v. Rossi, No. 3-99-0629 (2001)
(unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d
R. 23)).
On October 31, 2001, petitioner filed a successive pro se postconviction petition. The
petition alleged inter alia that petitioner had been deprived of his right to effective assistance of
counsel where trial counsel failed to argue that his client was improperly admonished at the guilty
plea hearing and that Richard Conklin failed to raise several arguments in support of the motion to
vacate his guilty pleas, including petitioner’s lack of mental stability at the time of the pleas. The
petition also alleged that appellate counsel was ineffective for not arguing Conklin’s defective
representation and that the pleas were involuntary due to the beating petitioner suffered in the
county jail.
On November 27, 2001, the trial court appointed Herbert Schultz to represent petitioner
in the successive postconviction proceedings. On December 31, 2003, the State filed a motion to
dismiss petitioner’s successive postconviction petition. Upon hearing argument, the court
determined that a number of issues raised in the petition were barred by the doctrine of res
judicata. However, the court reserved judgment on the issues concerning the effectiveness of
Conklin’s representation in regard to petitioner’s ability to enter the guilty pleas.
On May 12, 2004, the State presented the testimony of Conklin. Conklin explained that
he took the position in the postplea motion that petitioner’s plea was involuntary “on [the] basis
that he was in fear of his life and he was still suffering from injuries from the beating that he
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received three weeks earlier.” The court subsequently found that the issues concerning the
effectiveness of Conklin’s representation in regard to petitioner’s ability to enter the guilty pleas
were also barred by res judicata. The court dismissed petitioner’s successive postconviction
petition.
On May 27, 2004, petitioner filed several pro se motions, including a petition for rehearing
which included a prayer that petitioner be allowed to amend the petition for rehearing and alleged
among other things that Schultz’s representation was unreasonable for failing to amend his
successive postconviction petition to adequately raise the issues of ineffective assistance of
Conklin, trial counsel, and appellate counsel. On September 15, 2004, the court allowed Schultz
to withdraw and Richard Zimmer was appointed to represent petitioner. The ordered entered by
the court stated:
“Herbert Schultz is allowed to withdraw. Robert Zimmer is
appointed and shall examine the record and file a certificate
pursuant to Rule 651.”
More than two years later, on November 21, 2006, Schultz filed a certificate pursuant to
Supreme Court Rule 651 (c) (134 Ill. 2d R. 651(c)) (Emphasis added.) On that same day, the
court held a hearing on petitioner’s petition for rehearing. Upon hearing argument, the court
denied petitioner’s motion. A written order was entered on November 28, 2006. Specifically, the
order stated:
“This cause coming on [petitioner’s] petition for rehearing.
The [petitioner] appears by Richard Zimmer. *** [The] court finds
it previously denied the [petitioner’s] successive petition for Post
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Conviction Relief, but it reconsiders these issues along with the
new issues raised in the [petitioner’s] two petitions for rehearing.
Court finds that the previous rulings as to the [petitioner’s]
allegations were correct in that the [petitioner’s] issues failed to
state a meritorious cause and failed to state cause and prejudice.
These issues were fully adjudicated in post hearings. [Petitioner’s]
claims of ineffective assistance of counsel for a failure by Attorney
Herbert Schultz is not proven. [Petitioner’s] claim that he was not
present for post trial motions is not meritorious. [Petitioner’s]
claim that the charge against him was defective is not meritorious.
[Petitioner’s] claims of a Miranda violation and hearsay are not
meritorious and fails to state cause and prejudice.” (Emphasis
added.)
ANALYSIS
At the outset, we note that petitioner does not contest the merits of his successive
postconviction petition or his pro se petition for rehearing. Instead, petitioner alleges that this
case should be remanded for further postconviction proceedings because Richard Zimmer, who
represented petitioner solely on his pro se petition for rehearing, failed to file a Supreme Court
Rule 651(c) certificate, and the record does not otherwise show that Zimmer complied with Rule
651(c). In response, the State asserts that Rule 651(c) did not apply to Zimmer since he merely
represented petitioner on his petition for rehearing. This issue presents a question of law, which
we review de novo. People v. McCarty, 223 Ill. 2d 109, 148, 858 N.E.2d 15, 39 (2006).
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The question before us, which appears to be one of first impression, is whether the
requirements of Rule 651(c) apply to an attorney who has been appointed subsequent to the
dismissal of a second stage postconviction petition, and charged with the duty of representing the
petitioner on his petition for rehearing, which contains a new allegation of unreasonable assistance
on the part of original postconviction counsel. We begin our analysis with Rule 651(c), which
provides:
“Upon the timely filing of a notice of appeal in a post-
conviction proceeding, if the trial court determines that the
petitioner is indigent, it shall order that a transcript of the record of
the post-conviction proceedings, including a transcript of the
evidence, if any, be prepared and filed with the clerk of the court to
which the appeal is taken and shall appoint counsel on appeal, both
without cost to the petitioner. The record filed in that court shall
contain a showing, which may be made by the certificate of
petitioner’s attorney, that the attorney has consulted with petitioner
either by mail or in person to ascertain his contentions of
deprivation of constitutional rights has examined the record of
proceedings at the trial, and has made any amendments to the
petitions filed pro se that are necessary for an adequate presentation
of petitioner’s contentions.” 134 Ill. 2d R. 651(c).
Our supreme court has repeatedly held that the purpose of Rule 651(c) is to ensure that
postconviction counsel: (1) ascertains the bases of the postconviction petitioner’s complaints, (2)
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shapes those complaints into proper legal form, and (3) presents those complaints to the court.
People v. Pinkonsly, 207 Ill. 2d 555, 568, 802 N.E.2d 236, 244 (2003). In order to determine
whether Rule 651(c) applied to Zimmer, we must review the peculiar circumstances of this case.
Petitioner’s successive pro se postconviction petition alleged inter alia that petitioner had
been deprived of his right to effective assistance of counsel where trial counsel failed to argue that
his client was improperly admonished at the guilty plea hearing and that Richard Conklin failed to
raise several arguments in support of the motion to vacate his guilty pleas, including petitioner’s
lack of mental stability at the time of the pleas. The petition also alleged that appellate counsel
was ineffective for not arguing Conklin’s defective representation and that the pleas were
involuntary due to the beating petitioner suffered in the county jail. The trial court subsequently
appointed Schultz to represent petitioner in the successive postconviction proceedings. Illinois
law is clear that Rule 651(c) required Schultz to investigate, amend, and properly present these
claims to the trial court. People v. Davis, 156 Ill. 2d 149, 163-64, 619 N.E.2d 750, 757-58
(1993). Schultz filed a certificate in accordance with Rule 651(c).
After petitioner’s petition was dismissed on the State’s motion, petitioner filed a pro se
petition for rehearing which included a prayer that petitioner be allowed to amend the petition in
order to allege, among other things, that Schultz’s postconviction representation was
unreasonable for failing to amend petitioner’s successive postconviction petition to adequately
raise the issues of ineffective assistance of Conklin, trial counsel, and appellate counsel. On
September 15, 2004, the trial court allowed Schultz to withdraw and appointed Zimmer to: (1)
represent petitioner on his pro se petition for rehearing, (2) review the record, and (3) file a Rule
651 certificate. This order confirms that the trial court granted petitioner’s request to amend his
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motion for rehearing to include his new claim that Schultz’s postconviction representation was
unreasonable.
Zimmer subsequently represented petitioner at the hearing on his petition for rehearing.
Upon hearing argument, the trial court denied the petition. A review of the record reveals that
the court occasionally, during its oral ruling, referred to petitioner’s petition for rehearing as a
“third post-conviction petition.” However, the court’s written order denying petitioner’s petition
is devoid of any reference to a “third postconviction petition.” Instead, the court merely referred
to petitioner’s petition as a petition for rehearing. Thus, it is unclear whether the court was
treating petitioner’s petition as a third post-conviction petition or a petition for rehearing. A
determination as to this question, however, is not necessary due to the fact that, as will be shown
below, Illinois law bars petitioner from raising his new allegation of unreasonable assistance in
either context. We therefore conclude that Zimmer was under no obligation to investigate, amend
or present this allegation at the hearing on petitioner’s pro se petition.
Assuming that the trial court was treating petitioner’s pro se petition as a third
postconviction petition, petitioner’s claim of unreasonable assistance is not a cognizable claim in
postconviction proceedings. In seeking review of trial court proceedings under the Act, a
petitioner is only entitled to relief in circumstances where defendant has suffered a substantial
denial of constitutional rights. People v. Culp, 127 Ill. App. 3d 916, 920, 468 N.E.2d 1328, 1330
(1984). When considering an appeal from the dismissal of a petitioner’s postconviction petition,
the appellate court is limited to considering matters that are of a constitutional dimension. Culp,
127 Ill. App. 3d at 921, 468 N.E.2d at 1331. The right to reasonable assistance of postconviction
counsel is derived from the Act, rather than the Constitution. People v. Greer, 212 Ill. 2d 192,
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204, 817 N.E.2d 511, 519 (2004). “There is no constitutional right to counsel in post-conviction
proceedings.” People v. McNeal, 194 Ill. 2d 135, 142, 742 N.E.2d 269, 273 (2000). The court
could not treat petitioner’s pro se petition as a third postconviction petition because petitioner’s
new allegation of unreasonable assistance was not one of constitutional dimension. Moreover,
any allegation of a substantial denial of constitutional rights must be included in a postconviction
petition, and the petition must be verified. 725 ILCS 5/122-1 (West 2004). Petitioner’s pro se
putative petition does not comply with these requirements.
Assuming, on the other hand, that the trial court was treating petitioner’s pro se petition
as a petition for rehearing, petitioner’s claim of unreasonable assistance was a new allegation that
was not contained within petitioner’s successive postconviction petition. Our supreme court has
held that “a new contention cannot, for the first time, be urged in a petition for rehearing.”
People v. Mallett, 45 Ill. 2d 388, 397-98, 259 N.E.2d 241, 246 (1970). Moreover, petitioner
filed his pro se petition pursuant to Supreme Court Rule 367, which is titled “Rehearing in
Reviewing Court.” 210 Ill. 2d R. 367. Rule 367(b) specifically provides for rehearing on only
those “points claimed to have been overlooked or misapprehended by the court” in its original
ruling. 210 Ill. 2d R. 367(b). Having failed to raise his unreasonable assistance contention in his
successive petition for postconviction relief, petitioner is barred from asserting it on rehearing.
See Mallett, 45 Ill. 2d at 398, 259 N.E.2d at 246.
While we find that Illinois law bars petitioner’s new allegation of unreasonable assistance
of post-conviction counsel in the context of his petition for rehearing, we are still left with the
question whether Rule 651(c) required Zimmer to amend petitioner’s claims of ineffective
assistance of Conklin, trial counsel and appellate counsel. We believe it did not.
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Rule 651(c) ensures that postconviction counsel investigate, amend, and properly present
those constitutional claims that the petitioner has raised in his pro se petition for postconviction
relief. People v. Davis, 156 Ill. 2d 149, 164, 619 N.E.2d 750, 758 (1993). It was Schultz who
was obligated under Rule 651(c) to investigate, amend, and properly present petitioner’s
postconviction claims. Schultz filed a certificate in accordance with Rule 651(c). Thus, the
presumption exists that Schultz adequately investigated, amended and properly presented those
claims contained within petitioner’s successive postconviction petition. People v. Marshall, 375
Ill. App. 3d 670, 680, 873 N.E.2d 978, 986 (2007). Stated another way, the presumption exists
that petitioner received the representation Rule 651(c) requires a postconviction petitioner receive
during second stage proceedings.
Rule 651(c), however, did not apply to Zimmer. Our supreme court has recognized that
a postconviction proceeding “is entirely a creature of statute, and the legislature has mandated
specific requirements that a petitioner must meet to assert a claim under the Act.” People v. De
La Paz, 204 Ill. 2d 426, 448, 791 N.E.2d 489, 502 (2003). Upon review, we fail to find any
provision in the Act that granted the trial court authority to order Zimmer to file a certificate
pursuant to Rule 651(c). Zimmer was merely under an obligation to represent petitioner on his
motion for rehearing. The purpose of a petition for rehearing is to provide litigants with the
opportunity to direct the court’s attention to errors in the court’s previous application of existing
law. See Mallett, 45 Ill. 2d at 398, 259 N.E.2d at 246. As discussed above, Rule 651(c) is
intended to serve an entirely different purpose.
For the reasons stated, the judgment of Rock Island County dismissing defendant’s
amended postconviction petition without an evidentiary hearing is affirmed.
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Affirmed.
HOLDRIDGE and CARTER, JJ., concur.
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