People v. Csaszar , 2013 IL App (1st) 100467 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Csaszar, 2013 IL App (1st) 100467Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARTIN CSASZAR, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-10-0467
Rule 23 Order filed October 9, 2013
Rule 23 Order
withdrawn November 6, 2013
Rehearing denied November 27, 2013
Opinion filed December 4, 2013
Held The trial court’s dismissal of the postconviction petition defendant
(Note: This syllabus filed with the assistance of his retained counsel was affirmed over his
constitutes no part of the contention that his retained counsel failed to provide reasonable
opinion of the court but assistance in the postconviction proceedings, since no rule, statute, or
has been prepared by the constitutional provision requires the State to assure that defendant=s
Reporter of Decisions retained counsel’s assistance is reasonable.
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 00-CR-1274; the
Review Hon. Catherine K. Haberkorn, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Anne E. Carlson, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Miles J. Keleher, and Joan F. Frazier, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE NEVILLE delivered the judgment of the court, with
opinion.
Presiding Justice Hyman and Justice Mason concurred in the
judgment and opinion.
OPINION
¶1 After a bench trial, the trial court found Martin Csaszar guilty of solicitation of murder for
hire (720 ILCS 5/8-1.2 (West 1998)) and sentenced him to 30 years in prison. With the
assistance of retained counsel, Csaszar filed a postconviction petition in 2008. The trial court
granted the State’s motion to dismiss the petition without an evidentiary hearing. On appeal,
Csaszar argues only that his retained counsel did not provide reasonable assistance with
postconviction proceedings. Because we find that no constitutional provision, no statute, and
no rule requires the State to assure the reasonable assistance of retained counsel in
postconviction proceedings, we hold that Csaszar has not stated a cognizable claim for relief
from the trial court’s judgment. Accordingly, we affirm.
¶2 BACKGROUND
¶3 In 1997, Monica Crisan hired Csaszar to drive a truck for Livdimon Enterprise
Corporation. Csaszar’s employment ended in April 1998. Crisan invited Csaszar to come to
her home to pick up his final paycheck on May 3, 1998. Crisan deducted from Csaszar’s wages
an amount for damage to Livdimon’s truck. The amount of the paycheck upset Csaszar. After
Csaszar left Crisan’s home, Crisan called police to report that Csaszar pulled out a gun and
threatened her. Police arrested Csaszar and charged him with aggravated assault and unlawful
use of a weapon. The trial court continued proceedings on the charges through 1998 and 1999.
¶4 Csaszar found work driving a truck for Jakacki Bag and Barrel Company. There he met
James Anderson, who worked as a security officer for Jakacki. In 1999, Csaszar told Anderson
about the criminal charges Crisan initiated against him. On December 16, 1999, the day before
a hearing on the charges, Csaszar met with Anderson and Mark Shaffer. In a tape-recorded
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conversation, Csaszar gave Shaffer $500 in exchange for Shaffer’s promise to kill Crisan.
Shaffer, an undercover agent working for the Bureau of Alcohol, Tobacco and Firearms
(ATF), gave a prearranged signal to Chicago police officers once Csaszar gave him the cash.
The officers arrested Csaszar and prosecutors charged him with soliciting Shaffer and
Anderson to murder Crisan. Csaszar spoke with an officer and an assistant State’s Attorney at
the police station, but he did not sign any statement.
¶5 Before trial, defense counsel requested a behavioral clinical examination to evaluate
Csaszar’s fitness to stand trial. The trial court granted the request. The psychiatrist who
interviewed Csaszar found him fit to stand trial and legally sane at the time of the offense.
¶6 At the bench trial, Crisan testified that on May 3, 1998, after she gave Csaszar the
paycheck he considered inadequate, he pulled out a gun and pointed it at her. As she looked for
a phone, Csaszar said, “You want to call 9-1-1. *** By the time they will arrive, you’ll be
dead.” Some neighbors passed by her home, and Csaszar ran off.
¶7 Anderson testified that Csaszar asked him to kill Crisan. When Anderson refused, Csaszar
asked him to find someone else to kill Crisan. Anderson contacted an agent he knew who
worked for ATF. That agent arranged for Shaffer to pose as a hitman and for recording of
further contacts between Anderson, Shaffer and Csaszar.
¶8 Assistant State’s Attorney Fabio Valentini testified that Csaszar admitted he wanted Crisan
dead because she brought charges against him. He had the idea of hiring a hitman, and he asked
Anderson to help him.
¶9 Csaszar testified that Anderson sought out Csaszar’s company and offered to help him with
several problems. When Csaszar told Anderson about the criminal charges, Anderson
suggested killing Crisan. Anderson arranged for the hitman. Csaszar could not explain why he
met with Anderson and Shaffer, and why he said what he said in the recorded conversation.
¶ 10 The trial court found Csaszar guilty of soliciting Shaffer to murder Crisan for hire and
sentenced him to 30 years in prison. The appellate court affirmed the trial court’s judgment.
People v. Csaszar, 375 Ill. App. 3d 929 (2007).
¶ 11 In 2006, Csaszar drafted a postconviction petition, but he never filed it. Instead, in 2007, he
hired an attorney to prepare a postconviction petition for him. He sent the attorney his draft. In
the draft, he claimed that the State tampered with the videotape of his conversation with
Shaffer and Anderson. Csaszar said, in an affidavit, that he tried to back away from the deal,
but Shaffer said that if Csaszar made him come all the way to the meeting for nothing, Shaffer
would kill Csaszar and Csaszar’s family. Csaszar said that an inexplicable light appeared on
the videotape, showing where the State cut several seconds from the conversation, despite the
lack of any gap in the time signature shown on the tape.
¶ 12 On May 28, 2008, Csaszar’s retained counsel filed a postconviction petition in which he
contended that at the time of the offense, Csaszar’s medications and depression left him unable
to understand his own actions; Csaszar was not fit to stand trial; and his trial counsel provided
ineffective assistance. Counsel for the postconviction proceedings specified four ways in
which trial counsel provided ineffective assistance: (1) counsel did not obtain an assessment of
Csaszar’s fitness to stand trial; (2) counsel did not obtain an assessment of Csaszar’s mental
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health at the time of the offense; (3) counsel did not find out whether Csaszar understood his
right to a jury trial; and (4) counsel failed to present evidence to show entrapment. Counsel
supported the petition with affidavits from Csaszar’s mother, sister, and ex-wife concerning
Csaszar’s mental health, a letter from a psychiatrist about the effects of Csaszar’s medications,
and an affidavit from Csaszar. Counsel sent Csaszar a letter in which he explained that he
omitted the allegation about tampering with the videotape because he and Csaszar’s sister
watched the videotape and saw no indication of tampering.
¶ 13 The trial court permitted the State to file a motion to dismiss the petition. The trial court
granted the motion to dismiss. Csaszar now appeals.
¶ 14 ANALYSIS
¶ 15 Csaszar does not contest the trial court’s decision to dismiss his postconviction petition.
Instead, on this appeal, he argues only that his privately retained counsel did not provide the
reasonable level of assistance required for postconviction proceedings. In particular, Csaszar
claims that competent counsel should have further investigated the claim Csaszar made in his
draft postconviction petition that the State tampered with the videotape of his conversation
with Shaffer. The State responds that Csaszar had no constitutional right to the assistance of
counsel in postconviction proceedings and no statute or rule required a reasonable level of
assistance from privately retained counsel.
¶ 16 Csaszar admits that he has no constitutional right to assistance of counsel in postconviction
proceedings. See People v. Guest, 166 Ill. 2d 381, 412 (1995). He relies on cases in which
courts have held that counsel appointed to assist a defendant with postconviction proceedings
must provide a reasonable level of assistance. See People v. Turner, 187 Ill. 2d 406, 410
(1999); People v. Davis, 156 Ill. 2d 149, 162 (1993); People v. Johnson, 154 Ill. 2d 227,
237-38 (1993); People v. Owens, 139 Ill. 2d 351, 359 (1990). In those cases, our supreme court
interpreted the responsibilities under Supreme Court Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Feb.
6, 2013)) of counsel appointed to assist defendants with postconviction petitions. Turner, 187
Ill. 2d at 410; Davis, 156 Ill. 2d at 162; Johnson, 154 Ill. 2d at 238; Owens, 139 Ill. 2d at 359.
But Rule 651(c) applies only when the petitioner files his original postconviction petition
pro se, and not when the petitioner obtains the assistance of retained counsel. People v.
Richmond, 188 Ill. 2d 376, 382-83 (1999); People v. Kegel, 392 Ill. App. 3d 538, 540-41
(2009); People v. Johnson, 314 Ill. App. 3d 444, 454 (2000).
¶ 17 Csaszar recognizes the authorities limiting the reach of Rule 651(c). However, he argues
that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) requires a
reasonable level of assistance from retained counsel. He cites in support cases in which the
court held that the Act itself, before the adoption of Rule 651, required reasonable assistance of
counsel. See People v. Wales, 46 Ill. 2d 79 (1970); People v. Ford, 40 Ill. 2d 440 (1968);
People v. Barnes, 40 Ill. 2d 383 (1968); People v. Wilson, 40 Ill. 2d 378 (1968); People v.
Tyner, 40 Ill. 2d 1 (1968); People v. Slaughter, 39 Ill. 2d 278, 285 (1968). These cases
“concer[n] the quality of representation required of counsel appointed to represent an indigent
prisoner in proceedings under the Post-Conviction Hearing Act.” Slaughter, 39 Ill. 2d at 279.
This limit on the cases comports with the Act, which establishes the State’s duty to provide
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counsel only “[i]f the petitioner is without counsel and alleges that he is without means to
procure counsel.” 725 ILCS 5/122-4 (West 2006). The Act does not mention the duties of
counsel retained by a petitioner who has the means to procure counsel.
¶ 18 Here, as in Kegel, “defendant seeks to disengage the guarantee of reasonable assistance
from the underlying right to counsel such that the former can exist independently of the latter.”
Kegel, 392 Ill. App. 3d at 541. Like the Kegel court, we find no authority in either the Act or
case law to support the claim that the State must assure that a defendant obtains from retained
counsel reasonable assistance in postconviction proceedings. We find that the State has no
duty to provide counsel, and no duty to provide reasonable assistance of counsel, for any
petitioner able to hire his own counsel. See 725 ILCS 5/122-1 et seq. (West 2006).
¶ 19 In a footnote to his brief, Csaszar argues that the General Assembly’s decision to afford
indigent petitioners reasonable assistance of counsel, but not to assure reasonable assistance to
postconviction petitioners who hire their own attorneys, violates his right to equal protection of
the laws. “In applying the Equal Protection Clause to most forms of state action, we thus seek
only the assurance that the classification at issue bears some fair relationship to a legitimate
public purpose.” Plyler v. Doe, 457 U.S. 202, 216 (1982) “Support of the poor has long been
recognized as a public purpose [citation].” Carmichael v. Southern Coal & Coke Co., 301 U.S.
495, 515 (1937). States do not violate the equal protection clause when they provide benefits to
indigents that they do not provide to persons with sufficient means to purchase the benefits.
Carmichael, 301 U.S. at 515. The classification of prisoners as indigent or non-indigent, and
the provision of counsel only to the indigent, bears a fair relationship to a legitimate public
purpose of providing assistance of counsel for postconviction petitioners unable to retain
private counsel. See Plyler, 457 U.S. at 216. The State’s decision to provide competent counsel
only for indigent defendants, while leaving postconviction petitioners who can afford counsel
responsible for finding competent counsel, does not violate the right of the nonindigent to
equal protection of the laws.
¶ 20 Csaszar cites People v. Hayes, 49 Ill. 2d 298 (1971), Cuyler v. Sullivan, 446 U.S. 335(1980), and McCoy v. Court of Appealsof Wisconsin, District 1, 486 U.S. 429 (1988), as
authority requiring the State to ensure the competent assistance of privately retained counsel
for postconviction proceedings. In Hayes, the postconviction petitioner alleged that the
counsel he retained to assist with postconviction proceedings failed to provide reasonable
assistance. The Hayes court rejected the claim without addressing the issue of whether the
State bears any responsibility for assuring that a postconviction petitioner obtains reasonable
assistance from counsel the petitioner hired. Hayes, 49 Ill. 2d at 302-04. The Cuyler Court held
only that the constitutional right to effective assistance of counsel at trial applied to both
appointed and retained counsel. Cuyler, 446 U.S. at 344-45. The constitution does not require
assistance of counsel for postconviction proceedings. See Guest, 166 Ill. 2d at 412.
¶ 21 Finally, Csaszar quotes the McCoy Court, which said:
“Every advocate has essentially the same professional responsibility whether he or she
accepted a retainer from a paying client or an appointment from a court. The appellate
lawyer must master the trial record, thoroughly research the law, and exercise
judgment in identifying the arguments that may be advanced on appeal. In preparing
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and evaluating the case, and in advising the client as to the prospects for success,
counsel must consistently serve the client’s interest to the best of his or her ability.”
McCoy, 486 U.S. at 438.
Nothing in McCoy suggests that the State bears responsibility for assuring that the client
receives reasonable assistance from his privately retained attorney.
¶ 22 In accord with Kegel and McCoy, we find that the attorney has a duty to provide the
petitioner with a reasonable level of assistance with postconviction proceedings. Kegel, 392 Ill.
App. 3d at 541. The Kegel court held:
“An attorney who fails to provide competent representation is potentially subject to
disciplinary action as well as to liability for professional malpractice.
*** We note, however, that our holding does not necessarily foreclose defendant
from raising *** in a subsequent petition under the Act [the issue he sought to raise as
proof that his retained counsel failed to provide reasonable assistance]. To do so,
however, defendant will have to obtain leave from the trial court by establishing both
cause for his failure to raise the issue in his first petition and prejudice resulting from
that failure. 725 ILCS 5/122-1(f) (West 2006). We express no view on whether the
quality of postconviction counsel’s performance could establish cause or whether it
resulted in any prejudice.” (Emphasis in original.) Kegel, 392 Ill. App. 3d at 541-42.
¶ 23 We find the reasoning of Kegel fully applicable here. Csaszar may seek recourse against
his attorney for the attorney’s alleged failings and he may bring a successive postconviction
petition, in which he argues that his retained counsel’s failings show cause for his failure to
raise meritorious issues in his initial postconviction petition. Like the Kegel court, we express
no opinion as to whether postconviction counsel’s alleged failings can establish cause for the
failure of the initial postconviction petition to raise the issues Csaszar seeks to raise.
¶ 24 CONCLUSION
¶ 25 Because the Act does not require reasonable assistance of retained counsel, we find that
Csaszar has not stated a cognizable claim for relief on this appeal. Csaszar does not challenge
the trial court’s decision to dismiss the postconviction petition he filed with the assistance of
retained counsel. Accordingly, we affirm the trial court’s judgment.
¶ 26 Affirmed.
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