People v. Nitz ( 2021 )

NOTICE
2021 IL App (5th) 190320-UNOTICE
Decision filed 11/30/21. The
This order was filed under
text of this decision may be
NO. 5-19-0320 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 88-CF-162
)
RICHARD C. NITZ, ) Honorable
) Jeffrey A. Goffinet,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justice Welch concurred in the judgment.
Justice Wharton specially concurred.
ORDER
¶1 Held: The trial court did not err in finding that postconviction counsel complied
with the requirements of Illinois Supreme Court Rule 651(c) (eff. Feb. 6,
2013) where counsel consulted with the defendant to ascertain his
contentions of deprivation of constitutional rights, reviewed the portions of
the record relevant to the defendant’s contentions, and amended the
defendant’s petition to add a claim of ineffective assistance of counsel.
¶2 The defendant appeals from the trial court’s order finding that postconviction
counsel, Aviva Futorian, complied with the requirements of Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013) and the court’s reentry of the order denying the defendant’s
successive petition for postconviction relief. For the reasons that follow, we affirm.
1
¶3 BACKGROUND
¶4 The defendant, Richard Nitz, was convicted of first degree murder following an
initial trial in 1988 and a retrial in 1998. At the defendant’s retrial, the trial court conducted
an individual voir dire examination of each potential juror. Bart Masters was one of those
jurors. Bart stated that he was away in the military at the time of the murder and did not
personally know anything about the case aside from what he had heard on television and
read in a newspaper article. He further stated that he never talked to anyone about the case
or heard the case discussed in his presence. Bart indicated that he could set aside
information he received outside the courtroom and decide the case only on the evidence
presented at trial. Bart also indicated that he would give the defendant the presumption of
innocence. Upon further questioning, Bart confirmed that his brother, Brett Masters, was
part of a group of campers who found the victim’s body. Bart stated that Brett had
“mentioned something” about this, but Bart “didn’t think nothing of it.” Ultimately, Bart
was selected to serve on the defendant’s jury and was the jury foreman.
¶5 The defendant was found guilty of first degree murder and sentenced to life
imprisonment. At sentencing, the trial court stated, “The court believes that Mr. Nitz was
dangerous when he murdered [the victim] and is still dangerous.” Following the sentencing
hearing, Bart sent a letter to the trial judge. The trial judge read the first line of the letter,
realized it was from a juror, and gave the letter to another circuit judge who placed it under
seal in the court file. In that letter, Bart stated, “I recently learned of the sentence that you
handled [sic] down in this case. I too, thought that Mr. Nitz was a danger to society 10
years ago and is still a threat.”
2
¶6 Thereafter, without any knowledge regarding the letter, the defendant filed a motion
to reduce or modify his sentence, as well as a motion to reconsider the defendant’s posttrial
motion for a new trial. On October 7, 1998, the trial judge held a conference call with the
State and trial counsel, John O’Gara, 1 prior to the hearing on the defendant’s
postsentencing motions. The record reveals that during this conference call, the trial judge
informed O’Gara and the State about the letter the judge had received from Bart. At that
time, the trial judge had not read the letter. The record further indicates that copies of the
letter were made and delivered to O’Gara and the State prior to the hearing on the
defendant’s postsentencing motions. During the hearing, O’Gara did not seek to amend the
defendant’s motion to reconsider or make any argument regarding the Bart Masters letter.
The trial court denied the defendant’s postsentencing motions, and the defendant appealed.
¶7 On appeal, the defendant argued, inter alia, that the Bart Masters letter indicated
predisposition, bias, or prejudice during voir dire. This was the first time the defendant
raised an issue regarding the Bart Masters letter. This court affirmed the defendant’s
conviction but modified his sentence to a 60-year prison term in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). People v. Nitz, 319 Ill. App. 3d 949 (2001). In an unpublished
portion of the opinion, this court found that the language in the letter merely parroted
comments made by the trial judge at the defendant’s sentencing and provided no basis to
believe that Bart had lied during voir dire. Nitz, 319 Ill. App. 3d at 957 (unpublished text
under Supreme Court Rule 23).
1
The record reveals that the defendant was represented by both O’Gara and Futorian at his retrial
and that O’Gara was lead counsel.
3
¶8 On April 9, 2002, while the appeal of his second trial was still being considered by
the reviewing courts, the defendant filed, pursuant to the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2000)), a “Pro Se Petition for Post-Conviction
Relief and Request for Appointment of Counsel” (pro se petition). In his pro se petition,
the defendant made various claims of constitutional deprivation, including juror bias. In
one claim, the defendant alleged that Bart lied during voir dire. The defendant asserted:
“Mr. Masters’ letter *** indicates that he answered falsely on voir dire about
a matter affecting potential bias or prejudice. Although Masters claimed not
to know anything about the case from 1988 and not to have formed an
opinion about the guilt of Mr. Nitz, his post-trial letter to [the trial judge]
indicates that he had already formed an opinion before trial, and had lied
about it in voir dire when he said that he ‘thought that Mr. Nitz was a danger
to society 10 years ago and is still a threat.’ ”
The next day, the trial court summarily dismissed the defendant’s pro se petition. The
defendant appealed, and this court affirmed the lower court’s ruling. People v. Nitz, 354
Ill. App. 3d 1186 (2005) (table) (unpublished order under Supreme Court Rule 23).
¶9 On December 3, 2003, our supreme court issued a supervisory order directing this
court to vacate its judgment in People v. Nitz, 319 Ill. App. 3d 949 (2001), and reconsider
our decision regarding the defendant’s sentence in light of subsequent supreme court cases
addressing Apprendi. People v. Nitz, 206 Ill. 2d 637 (2003) (supervisory order). On March
5, 2004, this court issued an unpublished order finding that any Apprendi error was
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harmless beyond a reasonable doubt. People v. Nitz, 345 Ill. App. 3d 1167 (2004) (table)
(unpublished order under Supreme Court Rule 23).
¶ 10 On May 26, 2004, our supreme court issued a second supervisory order directing
this court to enter one published decision disposing of all issues in the defendant’s appeal.
People v. Nitz, 209 Ill. 2d 594 (2004) (supervisory order). On November 4, 2004, this court
affirmed the defendant’s conviction and once again sentenced the defendant to a 60-year
prison term based on this court’s Apprendi analysis. People v. Nitz, 353 Ill. App. 3d 978(2004). In an unpublished portion of the opinion, this court restated its holding that the
language in the Bart Masters letter merely parroted comments made by the trial judge at
the defendant’s sentencing and provided no basis to believe that Bart had lied during
voir dire. Nitz, 353 Ill. App. 3d at 985 (unpublished text under Supreme Court Rule 23).
¶ 11 On April 20, 2006, the supreme court affirmed the defendant’s conviction but
overturned this court’s modification of sentence. The supreme court reimposed the trial
court’s sentence of life imprisonment. In its opinion, the supreme court addressed the juror
bias argument that was in part based on the Bart Masters letter. The supreme court found
that any argument regarding the Bart Masters letter was procedurally defaulted because the
defendant had an opportunity to raise the matter with the trial court at the hearing on
October 7, 1998, but failed to do so. People v. Nitz, 219 Ill. 2d 400, 423-24 (2006).
¶ 12 On November 13, 2007, the defendant filed a “Motion for Leave to File Second
Petition for Post-Conviction Relief and Other Appropriate Relief” (motion for leave to file
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a successive petition). 2 In this motion, the defendant contended that our supreme court’s
ruling that any issue concerning the Bart Masters letter was procedurally defaulted voided
the prior decisions of this court and gave rise to a claim of ineffective assistance of counsel.
The defendant requested that he be allowed to file a successive petition for postconviction
relief presenting the claims set forth in the defendant’s pro se petition. The defendant also
sought to add a claim of ineffective assistance of trial counsel because O’Gara did not raise
any issue regarding the Bart Masters letter with the trial court when O’Gara became aware
of the letter. The motion was signed by Futorian but also listed attorney Charles Schiedel
as counsel for the defendant. The trial court denied the defendant’s motion for leave to file
a successive petition, and the defendant appealed.
¶ 13 On appeal, this court found that an evidentiary hearing was the appropriate
procedure to determine the relevancy of the Bart Masters letter and whether Bart testified
falsely during voir dire when he claimed that he would be impartial and afford the
defendant the presumption of innocence. This court reversed the trial court’s denial of leave
to file a successive postconviction petition and remanded the cause for further proceedings.
People v. Nitz, 399 Ill. App. 3d 1252 (table) (2010).
¶ 14 On remand, the trial court held an evidentiary hearing on May 27, 2011. The
defendant was represented by three attorneys, Futorian, Schiedel, and Timothy Capps. Bart
2
On July 9, 2007, the defendant had filed a “Motion for Leave to File Second Petition for Post-
Conviction Relief” which had a copy of the defendant’s original pro se petition attached. The motion
contended that the supreme court’s finding concerning the Bart Masters letter was incorrect because the
letter had not been made available to trial counsel before the October 7, 1998, motion hearing. Following a
hearing, counsel withdrew the July 2007 motion after realizing the record contradicted the allegations in
the motion.
6
was called as a witness and questioned by Capps. Bart testified and explained that he was
selected as the jury foreman; that he learned his brother Brett found the victim’s body; that
Bart had not discussed the discovery of the victim’s body with Brett; what Bart meant when
he wrote the letter to the trial judge; and that Bart did not have any preconceived notions
about the defendant’s guilt before he heard the evidence at trial.
¶ 15 At the conclusion of Bart’s testimony, the trial court found Bart to be a credible
witness. The court also found that the evidence established that Bart testified truthfully
during voir dire that he would be fair and impartial and that he would give the defendant
the presumption of innocence. The trial court denied the relief requested in the successive
petition. The defendant appealed.
¶ 16 On appeal, the defendant raised an issue of whether his postconviction counsel
failed to provide reasonable assistance for not adequately questioning Bart about any bias
he harbored toward the defendant. The defendant argued that Bart’s brother, Brett, was a
remote suspect. Bart also had another brother, Mark Masters. 3 The defendant alleged that
Mark was associated with, and had a motive to murder, the victim. The defendant further
alleged that Bart’s brothers were two very good reasons for Bart to try to ensure that his
family’s name and honor would be exonerated, and that he had the opportunity to attain
that exoneration by convicting the defendant.
3
The common law record contains numerous police reports which included an interview of Mark.
The report indicated that Mark was familiar with the victim but was unable to provide any relevant
information about the case.
7
¶ 17 At the State’s request, this court allowed the State to supplement the record with a
Rule 651(c) certificate prepared by Futorian. Her certificate provided that she had
consulted with the defendant by telephone to ascertain his contentions of deprivation of
constitutional rights, examined the record of proceedings at trial, and prepared the
defendant’s petition in a manner that provided an adequate presentation of his contentions
of error. The defendant challenged the veracity of Futorian’s representations with his own
affidavit. The defendant also filed affidavits from Futorian and Schiedel which detailed
their lack of knowledge as to Mark’s police interview. The defendant requested a limited
remand so that the dispute could be resolved.
¶ 18 After determining that a limited remand was appropriate, this court ruled as follows:
“If the trial court finds that postconviction counsel adequately complied with
Rule 651(c) in consulting with the defendant, reviewing the record, and
amending the petition, no additional proceedings will be necessary and an
order should again be entered denying the successive postconviction petition.
If, however, the court finds that postconviction counsel did not comply with
Rule 651(c), the defendant should be allowed to plead anew and a new
hearing should be conducted on the successive postconviction hearing.”
People v. Nitz, 2013 IL App (5th) 110271-U, ¶ 36.
¶ 19 On remand, pursuant to this court’s directive, the trial court held a hearing. Futorian
was called as a witness and testified that she began representing the defendant in 1992 for
his postconviction petition following his first trial. When questioned about the defendant’s
successive petition, Futorian testified that she talked with the defendant on the phone “at
8
least five times, maybe ten” and discussed his concerns, including Bart and his letter.
Regarding her review of the record, Futorian testified that she read the common law record
“very thoroughly in 1992-’93” but did not read it carefully before the defendant’s retrial or
“before the postconviction petition.” Regarding the amendment to the defendant’s pro se
petition, Futorian testified that in addition to the claims raised by the defendant in his pro se
petition, she added a claim regarding ineffective assistance of trial counsel because O’Gara
failed to raise the issue of the Bart Masters letter with the trial court. Futorian also testified
that she was unaware of Mark’s police interview at the time of the May 27, 2011,
evidentiary hearing. Futorian indicated that had she known about Mark’s interview, Bart
would have been questioned about his brother, Mark. Futorian further indicated that the
issue concerning Mark was not discovered until the defendant’s appellate attorney raised
the issue in the appellate court (see Nitz, 2013 IL App (5th) 110271-U). The defendant did
not testify.
¶ 20 On January 30, 2017, the trial court issued an order finding that Futorian complied
with Rule 651(c) and reentered the order denying the relief requested in defendant’s
successive petition. The trial court specifically found that Futorian had examined the
pertinent portions of the record, had amended the defendant’s pro se petition as necessary,
and had consulted with the defendant regarding his contentions of error no less than five
times by telephone. The defendant appealed.
¶ 21 On appeal, this court vacated the trial court’s judgment and remanded because the
trial court had required the defendant to proceed pro se at the previous limited remand
hearing. This court did not address the defendant’s alternative argument that the trial court
9
erroneously concluded that Futorian complied with Rule 651(c). People v. Nitz, 2018 IL
App (5th) 170074-U.
¶ 22 On June 14, 2019, the trial court held a second hearing on whether Futorian had
complied with Rule 651(c). Futorian again testified that she thoroughly reviewed the record
when she began representing the defendant in postconviction proceedings in 1992. Futorian
was also the second chair in the defendant’s retrial. Futorian stated that before the
defendant’s retrial, she believed that she read the transcript of the defendant’s first trial.
She further stated that she did not read the police files or “go over what [she] had gone
over in *** 1992.” Futorian confirmed that she was appointed as postconviction counsel
for the defendant in 2002 or 2003. Futorian testified that she did not recall reviewing any
of the record aside from the transcript of the retrial between 2002 and the filing of the
motion for leave to file a successive petition in 2007. Futorian further testified that when
she learned of the Bart Masters letter, she reviewed the transcript of Bart’s voir dire.
Regarding Mark’s police interview, Futorian admitted that had she been aware of the
interview, she would have provided that information to Capps when he examined Bart at
the evidentiary hearing on May 27, 2011. Finally, Futorian confirmed that she consulted
with the defendant to ascertain his contentions of constitutional deprivation and prepared
the motion for leave to file a successive petition to address those issues. The defendant did
not testify.
¶ 23 On June 19, 2019, the trial court entered an order finding that Futorian had testified,
unrebutted, to her regular communications with the defendant. The trial court further found
that Futorian amended the defendant’s pro se petition by filing the motion for leave to file
10
a successive petition, with a copy of the proposed successive petition attached. The trial
court also found that Futorian had adequately examined the record. The trial court noted
that Futorian was a credible witness and that no contrary evidence was offered. The trial
court concluded that Futorian complied with the requirements of Rule 651(c) and reentered
the order denying the relief requested in the defendant’s successive petition. This appeal
followed.
¶ 24 ANALYSIS
¶ 25 The defendant was granted a limited remand hearing so that a proper record could
be made regarding the assertions made by Futorian in her Rule 651(c) certificate. Here, the
defendant contends that Futorian failed to comply with Rule 651(c) and provide reasonable
assistance in that she failed to review the relevant portions of the record and failed to amend
the defendant’s pro se petition “to fully present the claim that juror foreman Bart Masters
lied to get on the jury.” We disagree.
¶ 26 A defendant has no constitutional right to counsel in postconviction proceedings,
and is guaranteed only the level of assistance provided for by the Act. People v. Johnson,
2018 IL 122227, ¶ 16. While the Act does not explicitly provide for any particular level of
assistance, it is well settled that defendants are only entitled to a reasonable level of
assistance. Johnson, 2018 IL 122227, ¶ 16. To that end, Rule 651(c) outlines the specific
duties of postconviction counsel who represent defendants in amending their pro se
petitions. Under Rule 651(c), postconviction counsel must file a certificate stating that
counsel has (1) consulted with the defendant to ascertain his or her contentions of
deprivation of constitutional rights, (2) examined the record of the proceedings at the trial,
11
and (3) amended the defendant’s pro se petition, if necessary, to ensure the defendant’s
contentions are adequately presented. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Strict
compliance with Rule 651(c) is not required, rather substantial compliance is sufficient.
People v. Richardson, 382 Ill. App. 3d 248, 257 (2008).
¶ 27 Postconviction counsel’s filing of a Rule 651(c) certificate gives rise to a rebuttable
presumption that counsel provided reasonable assistance. People v. Profit, 2012 IL App
(1st) 101307, ¶ 19. It is the defendant’s burden to overcome this presumption by
demonstrating counsel’s failure to substantially comply with the requirements of Rule
651(c). Profit, 2012 IL App (1st) 101307, ¶ 19. Review of whether postconviction counsel
substantially complied with Rule 651(c) is de novo. People v. Bass, 2018 IL App (1st)
152650, ¶ 13.
¶ 28 At the outset, we note that in this appeal, the defendant has not argued that Futorian
failed to consult with the defendant to ascertain his asserted deprivations of constitutional
rights. Indeed, Futorian’s testimony establishes that she consulted with the defendant
multiple times. The defendant contends, however, that Futorian failed to comply with Rule
651(c) because she did not review the common law record in preparation of the defendant’s
motion for leave to file a successive postconviction petition which, in turn, led to a failure
to amend the defendant’s pro se petition to address Mark’s police interview. The defendant
argues that evidence concerning Mark’s involvement in the case “would have more fully
presented the claim that Bart lied and was necessary to properly examine Bart’s potential
motive to lie to get on the jury.”
12
¶ 29 Postconviction counsel is only required to investigate and properly present the
defendant’s claims. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). Postconviction
counsel is not required to comb the record for issues not raised in the defendant’s pro se
postconviction petition. People v. Rials, 345 Ill. App. 3d 636, 641 (2003). A postconviction
petitioner is not entitled to the advocacy of counsel for the purposes of exploration,
investigation, and formulation of potential claims. People v. Davis, 156 Ill. 2d 149, 163
(1993). While postconviction counsel may conduct a broader examination of the record,
and may raise additional claims if counsel so chooses, counsel has no obligation to do so.
Pendleton, 223 Ill. 2d at 476.
¶ 30 The defendant’s pro se petition asserted that the Bart Masters letter indicated that
Bart answered falsely during voir dire about a matter affecting potential bias or prejudice.
Futorian’s testimony establishes that she reviewed the Bart Masters letter and the transcript
of Bart’s voir dire to prepare for the motion for leave to file a successive petition. The
motion contained a request that the trial court allow the filing of a successive petition
setting forth the claims in the defendant’s original pro se petition. The motion for leave to
file a successive petition was crafted to add a claim of ineffective assistance of counsel for
O’Gara’s failure to raise the Bart Masters letter issue with the trial court.
¶ 31 The record establishes that Futorian substantially complied with the mandates of
Rule 651(c) as it related to the defendant’s claim—that the Bart Masters letter indicated
predisposition, bias, or prejudice. Futorian consulted with the defendant to ascertain his
alleged deprivations of his constitutional rights; reviewed the relevant portions of the
13
record related to the defendant’s contentions; and made a necessary amendment to the
pro se petition by seeking to add a claim of ineffective assistance of counsel.
¶ 32 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 33 Affirmed.
¶ 34 JUSTICE WHARTON, specially concurring:
¶ 35 I agree with the majority that Futorian complied with the requirements of Rule
651(c) in representing the defendant in proceedings on his second postconviction petition.
As the majority correctly points out, the right to postconviction counsel is a matter of
legislative grace, not a constitutional right. People v. Hardin, 217 Ill. 2d 289, 299 (2005).
For this reason, postconviction petitioners are entitled only to the level of assistance
guaranteed under the Post-Conviction Hearing Act—that of reasonable assistance.
Johnson, 2018 IL 122227, ¶ 16. Because Futorian provided the level of assistance
mandated under the Act, I concur with the result reached by the majority. I write separately
to express my belief that the required “reasonable” level of assistance is not well-suited to
the unusual circumstances of this case—where postconviction counsel also represented the
defendant at trial.
¶ 36 Here, Futorian represented the defendant in proceedings on his previous, successful
postconviction petition. She then represented him in his second trial. At that time, she was
obligated to provide representation meeting the constitutionally-mandated standard of
effective assistance. She concedes that she did not fully review the existing record in
14
preparing for that trial. Such review likely would have revealed the fact that Mark Masters
was interviewed by police investigating the murder. Had Bart Masters’s relationship to
both Mark and Brett been fully investigated, Bart could have been more thoroughly
questioned during voir dire, which mostly likely would have led to him being excused. The
lower standard of representation applicable in postconviction proceedings thus potentially
shields an attorney’s mistakes during trial from review.
¶ 37 A second reason that the reduced standard of representation applicable in a
postconviction proceedings is ill-suited to the circumstances of this case is that it deprives
a defendant of the benefit of a prior trial attorney’s familiarity with the trial proceedings.
Here, the defendant alleged in his pro se petition only that Bart Masters’s letter
demonstrated that he had a preconceived view of the defendant’s guilt. It is generally
reasonable for postconviction counsel to review only those portions of the record necessary
to adequately present that specific claim. See Pendleton, 223 Ill. 2d at 472. However, where
postconviction counsel also served as trial counsel, that attorney should be more familiar
with what occurred at trial. Under such circumstances, it may not be reasonable to overlook
additional issues that counsel is—or should be—aware of. Yet, counsel is not required to
raise such issues.
¶ 38 For these reasons, I believe that the standard of reasonable assistance, including the
limited duty to review only so much of the record as is necessary to present the specific
claims raised by the defendant in a pro se petition, is at odds with the level of representation
an attorney in Futorian’s position realistically should be able to provide under the
circumstances of this case. However, unless and until the legislature amends the Post-
15
Conviction Hearing Act to address this unusual set of circumstances, postconviction
counsel need only comply with Rule 651(c) in order to provide reasonable assistance.
Because I believe Futorian satisfied the rule’s requirements, I concur in the majority’s
opinion in spite of my misgivings over the appropriateness of this standard under the
circumstances of this case.
16