People v. Mason , 56 N.E.3d 1141 ( 2016 )

FILED
2016 IL App (4th) 140517 July 18, 2016
Carla Bender
NO. 4-14-0517 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
ERIC J. MASON, ) No. 11CF93
Defendant-Appellant. )
) Honorable
) William O. Mays,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.
Justices Harris and Pope concurred in the judgment and opinion.
OPINION
¶1 In August 2012, defendant, Eric J. Mason, pro se, filed an amended petition for
postconviction relief. Therein, he alleged his trial counsel provided ineffective assistance of
counsel. In November 2012, the trial court advanced defendant's petition to the second stage of
postconviction proceedings and appointed counsel to represent defendant. In January 2014,
postconviction counsel filed a certificate of compliance pursuant to Illinois Supreme Court Rule
604(d) (eff. Feb. 6, 2013), even though the certificate should have been filed under Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013). During the postconviction proceedings,
defendant complained his postconviction counsel was providing unreasonable assistance by
failing to properly communicate with him and inadequately representing his interests. In
February 2014, the State filed a motion to dismiss defendant's postconviction petition, which the
trial court granted in May 2014.
¶2 Defendant appeals, asserting (1) postconviction counsel provided unreasonable
assistance of counsel, and (2) the trial court erred in dismissing his postconviction petition at the
second stage of proceedings. Because we conclude postconviction counsel's certificate failed to
substantially comply with Rule 651(c), we reverse and remand for further proceedings.
¶3 I. BACKGROUND
¶4 As we find postconviction counsel's failure to demonstrate substantial compliance
with Rule 651(c) requires reversal, we will summarize only the facts necessary to the disposition
of this appeal.
¶5 A. The Plea Agreement and Sentencing
¶6 In October 2011, defendant entered a plea of guilty to two counts of residential
burglary (720 ILCS 5/19-3 (West 2010)) and one count of theft over $500 (720 ILCS 5/16­
1(a)(1) (West 2010)). In March 2012, the trial court sentenced defendant to a total of 17 years'
imprisonment—10 years on the residential-burglary counts, to be served consecutively to 7 years
on the theft count. In April 2012, defendant filed a motion to withdraw his guilty plea and vacate
his sentence, but the trial court dismissed it as untimely. Defendant's appeal of the court's order
was later dismissed by this court. People v. Mason, No. 4-12-0559 (Dec. 7, 2012) (letter order
dismissing appeal on defendant appellant's motion).
¶7 B. Petition for Postconviction Relief
¶8 In August 2012, defendant, pro se, filed an original and then an amended
postconviction petition. In his amended petition, defendant asked the trial court to substitute the
amended petition for the original petition. Defendant's amended petition alleged trial counsel
provided ineffective assistance of counsel, in part, by failing to (1) investigate and interview
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witnesses; (2) obtain certain evidence; and (3) retrieve defendant's credit card from the jail for
the purpose of defendant hiring private counsel, despite agreeing to do so on the record.
¶9 1. Appointment of Postconviction Counsel
¶ 10 In November 2012, the trial court found defendant had met his burden of stating
the gist of a constitutional claim and appointed the public defender's office to represent
defendant. In January 2014, defendant's appointed postconviction counsel filed a certificate of
compliance pursuant to Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), rather than the
required certificate under Rule 651(c). Therein, postconviction counsel stated he had reviewed
defendant's pro se motion, consulted with defendant by mail and phone to ascertain his
contentions of error in the plea and sentencing hearings, and ascertained no amendments to
defendant's pro se motion were necessary to present defendant's contentions of error at the plea
and sentencing proceedings.
¶ 11 Later that month, the trial court received a letter from defendant, asking for the
appointment of new counsel. He alleged postconviction counsel had ignored his letters, and
when they spoke on the phone in November 2013, defendant found postconviction counsel to
lack knowledge of his case.
¶ 12 2. The Motion To Dismiss
¶ 13 In February 2014, the State filed a motion to dismiss defendant's amended
postconviction petition, asserting the claims were unsupported by the record. Later that month,
postconviction counsel filed a response to the motion to dismiss, arguing defendant provided a
substantial showing of a constitutional violation.
¶ 14 In April 2014, the trial court held a hearing on the State's motion to dismiss. Prior
to commencing the hearing, however, the court allowed defendant to address the January 2014
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letter he sent requesting the appointment of new counsel. Defendant admitted he had consulted
with postconviction counsel but not "in the way that [he] should have." Further, defendant said
he was unaware postconviction counsel had adopted his amended pro se petition. Defendant
stated he had information he had hoped postconviction counsel would add to the petition but
agreed with counsel's assessment that the information only went to the sufficiency of the
evidence, not the hearing on the motion to dismiss.
¶ 15 Given the nature of defendant's concerns, the prosecutor suggested postconviction
counsel be given additional time to consult with defendant, and the trial court agreed. However,
both postconviction counsel and defendant stated they were ready to proceed. Following the
presentation of evidence, the court granted the State's motion to dismiss.
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant asserts he received (1) unreasonable assistance from
postconviction counsel and (2) ineffective assistance from trial counsel. We begin by addressing
defendant's assertion that postconviction counsel failed to file a certificate in compliance with
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
¶ 19 A defendant's right to postconviction counsel is wholly statutory. People v.
Perkins, 229 Ill. 2d 34, 42, 890 N.E.2d 398, 402 (2007). "Therefore, a petitioner is entitled only
to the level of assistance required" under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2012)). Perkins, 229 Ill. 2d at 42, 890 N.E.2d at 402. Under the Act, a
defendant is entitled only to reasonable assistance of counsel. Id.; see also People v. Pendleton,
223 Ill. 2d 458, 472, 861 N.E.2d 999, 1007 (2006). Reasonable assistance of counsel is
premised on counsel's compliance with Rule 651(c). See id. at 42, 890 N.E.2d at 403. Although
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strict compliance is not necessary, postconviction counsel must substantially comply with Rule
651(c). Our review is de novo. People v. Bell, 2014 IL App (3d) 120637, ¶ 9, 16 N.E.3d 910.
¶ 20 Under Rule 651(c), postconviction counsel must file a certificate indicating he
"has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or
her contentions of deprivation of constitutional rights, has examined the record of the
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." Ill. S. Ct. R. 651(c) (eff. Feb.
6, 2013).
¶ 21 In this case, postconviction counsel filed a certificate pursuant to Rule 604(d),
which is required when a defendant seeks to withdraw his guilty plea. A certificate filed under
Rule 604(d) requires the attorney to affirm he "has consulted with the defendant either by phone,
mail, electronic means or in person to ascertain defendant's contentions of error in the sentence
and the entry of the plea of guilty, has examined the trial court file and both the report of
proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has
made any amendments to the motion necessary for adequate presentation of any defects in those
proceedings." Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).
¶ 22 While similar in nature, Rule 604(d) and Rule 651(c) certificates contain
noticeable differences. Under Rule 604(d), the attorney's certificate requires only that the
attorney consult with defendant and review the records with respect to the plea and sentencing
proceedings. Conversely, under Rule 651(c), the attorney's certificate requires the attorney to
consult with defendant regarding any contentions of deprivation of constitutional rights, and he
must review the record of proceedings. In other words, a Rule 604(d) certificate is more limited
in scope than a Rule 651(c) certificate.
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¶ 23 In People v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 14, 968 N.E.2d 1170,
postconviction counsel filed a certificate with a caption indicating it was filed pursuant to Rule
604(d). However, the court noted the contents of the certificate were consistent with the
requirements of Rule 651(c) where the certificate stated postconviction counsel "attempted to
consult with defendant, reviewed the court file and record of proceedings, and made any
necessary amendments." Id. Moreover, in Kirkpatrick, postconviction counsel made
representations on the record that he had spoken and corresponded with the defendant and
discussed potential changes to the pro se petition. Id.¶ 24 Here, unlike in Kirkpatrick, postconviction counsel did not merely mislabel the
caption of his certificate; rather, the language contained within the certificate mirrors the precise
language of Rule 604(d). Although the claims in defendant's pro se postconviction petition
revolved mostly around his guilty plea and sentencing, some of his claims required
postconviction counsel to consider the records from other proceedings. Thus, the certificate filed
by postconviction counsel fails to demonstrate he reviewed the transcripts of all the trial court
proceedings or spoke with defendant about his contentions of constitutional deprivation outside
of the plea and sentencing hearings.
¶ 25 Moreover, unlike Kirkpatrick, we have no statements on the record from
postconviction counsel clarifying whether he spoke with defendant about his claims of
constitutional deprivation or reviewed the necessary records. The purpose of a Rule 651(c)
certificate " 'is to ensure that all indigents are provided proper representation when presenting
claims of constitutional deprivation' " filed under the Act. People v. Suarez, 224 Ill. 2d 37, 47,
862 N.E.2d 977, 982 (2007) (quoting People v. Brown, 52 Ill. 2d 227, 230, 287 N.E.2d 663, 665
(1972)). Without assurances from the record that postconviction counsel fulfilled his duty under
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Rule 651(c) rather than under Rule 604(d), we conclude postconviction counsel's certificate
failed to substantially comply with Rule 651(c). Where a certificate is deficient, the appropriate
remedy is to reverse the judgment of the trial court and remand this cause for compliance with
Rule 651(c). See People v. Stone, 364 Ill. App. 3d 930, 935, 848 N.E.2d 223, 228 (2006). We
therefore reverse the trial court's judgment and remand the case for further second-stage
proceedings under the Act. Defendant should be appointed new counsel, who shall file a new
certificate pursuant to Rule 651(c).
¶ 26 Because we are remanding this case for compliance with Rule 651(c), we need
not address defendant's remaining contentions of error.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we reverse the trial court's judgment and remand for
further second-stage proceedings under the Act.
¶ 29 Reversed and remanded.
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