People v. Howard ( 2020 )

NOTICE
2020 IL App (5th) 170119-U NOTICE
Decision filed 06/04/20. The This order was filed under
text of this decision may be Supreme Court Rule 23 and
NO. 5-17-0119
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party 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, ) Bond County.
)
v. ) No. 14-CF-52
)
JEREMIAH C. HOWARD JR., ) Honorable
) John Knight,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Overstreet and Boie concurred in the judgment.
ORDER
¶1 Held: Because the defendant and the State are correct that the circuit court erred
when it summarily dismissed the defendant’s petition for postconviction
relief at the first stage of proceedings, we reverse the order of the circuit court
of Bond County and remand for the appointment of counsel for the
defendant, and for further proceedings on the defendant’s petition.
¶2 The defendant, Jeremiah C. Howard Jr., appeals the summary dismissal, at the first
stage of proceedings, of his petition for postconviction relief (the petition). For the
following reasons, we reverse the dismissal and remand for the appointment of counsel and
for further proceedings.
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¶3 I. BACKGROUND
¶4 The facts necessary to our disposition of this appeal follow. The defendant was
convicted, following a jury trial, of, inter alia, the offenses of identity theft of three or more
individuals and aggravated identity theft of three or more individuals. A direct appeal from
the convictions was filed. On March 2, 2017, after the defendant’s appellate counsel had
filed his opening brief in the direct appeal, but while the direct appeal still was pending,
the defendant, acting pro se, filed the petition, along with an affidavit of the defendant, an
application to defend as a poor person, and a motion for the appointment of counsel. In the
petition, the defendant alleged that he received ineffective assistance of appellate counsel
due to appellate counsel’s failure to raise eight claims the defendant believed should have
been raised in the direct appeal. We will discuss those of the claims that are of relevance
to this appeal in more detail in the analysis section, below.
¶5 One week later, on March 9, 2017, the circuit court entered an order in which it
ruled that because the defendant’s direct appeal was at that time still pending, the “claims
and arguments” of the defendant’s appellate counsel were not “finalized or completed.”
The order pointed to the Illinois Supreme Court’s decision in People v. Harris, 224 Ill. 2d
115 (2007), for the proposition that if a direct appeal is still pending, a claim of ineffective
assistance of appellate counsel is wholly speculative and therefore is frivolous and patently
without merit. The circuit court ruled that in this case, the petition was “based upon
predicted occurrences and outcomes, not established facts, and *** therefore frivolous and
patently without merit due to its purely anticipatory nature.” Accordingly, the circuit court
summarily dismissed the petition. This timely appeal followed. Subsequently, in the
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defendant’s direct appeal, this court affirmed the defendant’s convictions and sentences,
finding no merit to the defendant’s claim that his conviction for the charge of identity theft
of three or more individuals should be vacated under the “one-act, one-crime” doctrine.
People v. Howard, 2018 IL App (5th) 150019-U, ¶¶ 11-13.
¶6 II. ANALYSIS
¶7 This court reviews de novo the first-stage, or summary, dismissal of a petition for
postconviction relief. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage of
proceedings on such a petition, a defendant “need only present a limited amount of detail
in the petition.” Id. As the Hodges court noted, “[b]ecause most petitions are drafted at this
stage by defendants with little legal knowledge or training,” reviewing courts will view
“the threshold for survival as low.” Id. A defendant need only state the “gist” of a
constitutional argument, a requirement that is met if a defendant alleges “enough facts to
make out a claim that is arguably constitutional for purposes of invoking the Act,” even if
the petition as drafted at the first stage “lacks formal legal arguments or citations to legal
authority.” Id. The trial court may dismiss a petition at the first stage as “frivolous or
patently without merit only if the petition has no arguable basis either in law or in fact.” Id.
at 11-12. Moreover, “[w]here defendants are acting pro se, courts should review their [first-
stage] petitions ‘with a lenient eye, allowing borderline cases to proceed.’ ” Id. at 21(quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983)).
¶8 On appeal, the defendant in this case contends the petition presented the gist of
constitutional claims that (1) he received ineffective assistance of trial and appellate
counsel where both counsel failed to argue that the defendant’s right to due process was
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violated when he had to wear a remotely-operated “shocking leg restraint” during the fourth
day of trial, (2) he was denied his fundamental right to testify because trial counsel
allegedly did not allow him to testify at trial, (3) appellate counsel was ineffective for
failing to raise on direct appeal that the jury was improperly instructed as to the meaning
of “organized gang,” which was an element of aggravated identity theft, the most serious
offense with which he was charged, and (4) the State failed to prove him guilty beyond a
reasonable doubt of aggravated identity theft. The defendant also contends the circuit court
misapprehended, and read too broadly, the relevant law as stated in People v. Harris, 224
Ill. 2d 115 (2007), and as a result the circuit court incorrectly asserted that simply because
a direct appeal was pending, the petition’s ineffective assistance of appellate counsel
arguments were subject to summary dismissal. The defendant argues, to the contrary, that
because in this case the defendant’s appellate counsel had already filed his opening brief
by the time the defendant filed his petition, the defendant was aware of what issues could
be raised on direct appeal, because appellate counsel had forfeited any additional issues by
not raising them in his opening brief. According to the defendant, this is a key distinction
from the procedural posture of Harris, because in Harris no direct appeal briefs had been
filed at the time the defendant raised his ineffective assistance of appellate counsel claims
in his petition for postconviction relief, and accordingly it was not yet possible to determine
which claims appellate counsel would or would not raise in the direct appeal.
¶9 The State agrees with the defendant’s reasoning that this case is procedurally
different from Harris to such a significant extent that the circuit court erred in relying upon
Harris when rendering its decision in this case. The State also agrees that at least one of
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the defendant’s claims in the petition “etches out the bare minimum of a claim necessary
to” survive a summary dismissal. The State alleges infirmities with regard to certain other
aspects of the petition, but acknowledges that in Illinois, binding precedent of relevance to
petitions for postconviction relief requires that if any claim in a petition should not have
been dismissed, the entire petition must advance to the second stage of proceedings, so that
appointed counsel may amend the petition to fully develop and present meritorious legal
claims.
¶ 10 We agree with the defendant, and the State, that summary dismissal of the petition
was improper, for the reasons cited, and explained, by the parties. Accordingly, the entire
petition must advance to the second stage of proceedings. See, e.g., People v. Johnson, 377
Ill. App. 3d 854, 858, 860 (2007) (if any claims in petition not subject to summary
dismissal, entire petition must be docketed for second-stage proceedings); see also, e.g.,
People v. Henderson, 2014 IL App (2d) 121219, ¶ 41 (same). At this point, of course, the
defendant has not fully developed his arguments. If, after consultation with appointed
counsel at the trial court level on remand, the defendant wishes to persist in his claims, he
should have the opportunity to file an amended petition (see, e.g., People v. Boclair, 202
Ill. 2d 89, 100 (2002)), and the State should have the opportunity to respond thereto.
¶ 11 III. CONCLUSION
¶ 12 For the foregoing reasons, we reverse the first-stage dismissal of the defendant’s
petition for postconviction relief, and remand for appointment of counsel to represent the
defendant, and for further proceedings.
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¶ 13 Reversed and remanded.
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