People v. Generally , 2024 IL App (5th) 220360-U ( 2024 )

2024 IL App (5th) 220360-UNOTICE
NOTICE
Decision filed 02/27/24. The
This order was filed under
text of this decision may be NO. 5-22-0360
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, ) Madison County.
)
v. ) No. 11-CF-2738
)
NIGEL GENERALLY, ) Honorable
) Neil T. Schroeder,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Welch and Boie concurred in the judgment.
ORDER
¶1 Held: We reverse the second-stage dismissal of the defendant’s postconviction
petition and remand for appointment of new counsel and further proceedings.
¶2 The defendant, Nigel Generally, appeals the second-stage dismissal of his postconviction
petition. For the following reasons, we reverse the dismissal and remand for appointment of new
counsel and further proceedings.
¶3 I. BACKGROUND
¶4 The following facts are derived from the record on appeal. Some of the facts were included
in this court’s previous orders in this case, which were issued in appellate case number 5-15-0441
(People v. Generally, No. 5-15-0441 (2017) (unpublished summary order under Illinois Supreme
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Court 23(c))) and appellate case number 5-17-0265 (People v. Generally, No. 5-17-0265 (2020)
(unpublished Rule 23 order)).
¶5 On April 8, 2013, the defendant pled guilty to one count of first degree murder in exchange
for the State’s agreement to dismiss all other pending charges and to seek a sentence of no more
than 40 years’ imprisonment. At the time of the offense, the defendant was 19 years and 10 months
old. Following a June 20, 2013, sentencing hearing, the defendant was sentenced to 33 years’
imprisonment. The defendant’s motion to reconsider his sentence was denied. The defendant did
not withdraw his guilty plea, nor did he file a direct appeal.
¶6 On June 15, 2015, the defendant filed a petition for postjudgment relief pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). The defendant argued
that his sentence was void because the judge was biased against him, refused to consider the
relevant factors in mitigation, imposed a sentence that was disproportionate to that of his
codefendant, and stated that “the law will be used to revenge the victim’s death.” The defendant
sought relief in the form of a resentencing hearing. The State did not file a motion to dismiss, an
answer, or any other responsive pleading. The circuit court denied the defendant’s petition and he
appealed.
¶7 On March 28, 2017, while the above appeal was pending, the defendant filed, pro se, a
petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1
et seq. (West 2016)). Therein, the defendant alleged that his 33-year sentence was a “de facto
sentence of life without parole,” and that the sentence should be vacated. The defendant alleged
that in a previous case, this court had “relied on recent U.S. Supreme Court case law to form its
analysis of the proportionate penalties clause” in relation “to a mandatory natural life sentence.”
The defendant also alleged that pursuant to the statute under which he was sentenced, the
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sentencing judge “was precluded from considering the [defendant’s] ‘youth’ diminished
culpability because of the characteristics of youth, and the way it weakens rationales for
punishment. Not to mention other mitigating factors as well.” He asked, inter alia, to be
resentenced “in conjunction with Illinois Constitution Article 1 Section 11 proportionate penalties
clause.”
¶8 On June 8, 2017, the circuit court judge handling the case entered a written order in which
he summarily dismissed the defendant’s pro se petition, ruling that the petition was frivolous and
patently without merit because, inter alia, (1) “[t]he defendant’s age and childhood were brought
to the forefront during the sentencing, both by testimony and exhibits introduced by [the
defendant’s trial counsel],” and (2) the sentencing judge “specifically commented on taking the
defendant’s age into account and noted the various life stages the defendant would be at upon
release from prison given various length sentences,” which resulted in the defendant’s sentence
being “considerate of the defendant’s age and level of maturity at the time the offense was
committed.”
¶9 The defendant appealed the dismissal of his pro se postconviction petition. While the
appeal was pending, the defendant acknowledged that in light of the Illinois Supreme Court’s
decision in People v. Buffer, 2019 IL 122327, ¶¶ 40-41 (prison sentence of 40 years or less imposed
on juvenile offender is not a de facto life sentence), his 33-year sentence does not qualify as a
de facto life sentence. Accordingly, the defendant abandoned his arguments related to a de facto
life sentence. However, the defendant maintained that his petition nevertheless was sufficient to
survive a first-stage dismissal, arguing that the petition raised the gist of a proportionate penalties
clause claim that is independent of his now-abandoned de facto life sentence claim. In particular,
the defendant pointed to the fact that his petition raised a claim under the Illinois Constitution and
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contended that this court has held that a sentence may be disproportionate under our constitution
even if it is not a de facto life sentence. This court reversed the dismissal of the pro se
postconviction petition because the defendant “stated the gist of a constitutional claim with an
arguable basis” and remanded for appointment of counsel and further proceedings.
¶ 10 On remand, counsel was appointed to represent the defendant. On March 22, 2022, counsel
filed a Rule 651(c) certificate and an amended postconviction petition that adopted the defendant’s
pro se claims and argued that the defendant’s sentence violated the eighth amendment and the
Illinois proportional penalties clause, because the trial court failed to take the defendant’s youth
into consideration during sentencing. Counsel supported the amended postconviction petition with
case law, Illinois statutes, policy arguments regarding the programs available to the defendant in
the Illinois Department of Corrections, and the fact that the defendant’s codefendants both received
a 20-year sentence of imprisonment, despite being older than the defendant. Three exhibits were
attached to the amended postconviction petition: the report of proceedings of the sentencing
hearing and the docket sheets for each of the two codefendant’s cases.
¶ 11 The amended postconviction petition argued, inter alia, as follows:
“11. The proportionate penalties clause of the Illinois Constitution states that ‘all
penalties shall be determined according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship.’ Ill. Const. 1970, art. 1 sec. 11.
12. In addition, the sentencing court’s failure to take the defendant’s youth into
account violated the 8th Amendment of the United States Constitution proscription of cruel
and unusual punishment. ***
13. The Sentencing Court in this matter made no meaningful consideration of the
defendant’s age. *** [A]t this point it can be argued that the Court should have given this
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case all of the consideration that a juvenile offender would be under Miller. In the particular
circumstances, it would certainly have been appropriate, but it is clear that there is no case
law in Illinois to support that argument. ***
***
15. As a result, the sentencing court violated the defendant’s State and Federal
constitutional rights. See: Miller v. Alabama.
***
16. More recently, courts of review have come to re-examine and re-emphasize the
age of offenders when considering the proportionality of a sentence for an offender over
the age of 18 but less than the age of 18 [sic]. In People v. House, IL App (1st) 11058072
N.E.3d 357 (2015) the Court specifically rejected the bright light distinction between
juvenile and adult at the age of 18. ***”
¶ 12 The State filed a motion to dismiss the amended postconviction petition. The trial court
conducted a hearing on the motion to dismiss on June 8, 2022. At the hearing, defense counsel
argued “that this case really boils down to an equal protection and due process case. The sentence
given to my client was not commensurate with the offense, and certainly is not commensurate with
the sentence given to defendants that were co-defendants.” Counsel also argued that the other issue
was the “concept of emerging adult” and the House case.
¶ 13 On June 8, 2022, the trial court entered an order granting the State’s motion to dismiss the
amended postconviction petition for reasons stated on the record. The reasons stated on the record
were as follows:
“[T]he issue is, you know, whether the petition—the allegations in the petition in light of
the trial record failed to make a substantial showing of a Constitutional violation. So the
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question is, taking this at face value, not doing any fact finding, whether or not the petition
and the attachments set forth a substantial showing of a Constitutional violation.
So, with regard to the consideration of age—[defense counsel], you attached a copy
of the sentencing hearing to your pleading and I would like to just point out some things
that were in the record.
So first on the pagination on the transcript itself, Page 5 with regard to the
Presentence Investigation, the Court indicated that he read it all and will use them, being
the PSI and the addendums, as a basis for factors in the sentence to be determined.
On Page 1 of the PSI is the Defendant’s date of birth, so it was clearly part of the
record, the Court was aware of Mr. Generally’s age. Mr. Generally himself pointed out and
argued his age on Page 40 in his statement in allocution. At the top of Page 40 he refers to
himself as a young 19-year old, unexperienced man.
On Page 61 at the top, in pronouncing the sentence the Court specifically indicated
the consideration of the defendant’s age. ***
And with regard to the cruel and unusual punishment aspect, even in light of Miller
I don’t think there’s a sufficient basis set forth in this petition to show a substantial
violation, and I likewise find the same with regard to the disproportionate penalties claim.
Mr. Generally’s sentence, although it is, you know, in the term of years substantially
longer, I don’t find that the petition sets forth the Constitutional violation and I don’t find
there’s a sufficient showing of disproportionate sentence.
***
So any other issues raised in the petition I likewise find there has not been a
substantial showing of the Constitutional violation. The Appellate Court sent it back to
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have the benefit of counsel, counsel has filed the amended petition, the Court’s considered
it, the State’s motion is granted, the petition is dismissed.”
Thereafter, the defendant filed a timely notice of appeal.
¶ 14 II. ANALYSIS
¶ 15 It is well established that most petitions filed under the Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2020)) are filed by pro se defendants with limited legal knowledge.
See, e.g., People v. Allen, 2015 IL 113135, ¶ 24. In those situations, when a petition for
postconviction relief advances—as did the petition in this case—to the second stage of
proceedings, a pro se defendant is entitled to the appointment of counsel to assist the defendant.
People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. Appointed counsel may file an amended
petition, and the State may file a motion to dismiss or an answer. Id. If the petition makes a
substantial showing of a constitutional violation, it will be advanced to the third stage of
proceedings, which ordinarily involves an evidentiary hearing on the defendant’s claims. Id.¶ 16 The source of the defendant’s right to counsel at the second stage of proceedings is
statutory rather than constitutional, and as a result, the level of assistance guaranteed is not the
same as the level of assistance constitutionally mandated at trial or on direct appeal; instead, the
level of assistance required is reasonable assistance. Id. ¶ 29. To provide reasonable assistance at
the second stage of proceedings, appointed postconviction counsel is required to perform the three
duties set forth in Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Id. ¶ 30. Appointed
counsel must (1) consult with the defendant to determine the claims the defendant wants to raise,
(2) examine the appropriate portions of the record, and (3) make any amendments to the petition
that are necessary in order to adequately present the defendant’s claims to the circuit court, which
often means that counsel must shape the defendant’s claims into proper legal form. Id.
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¶ 17 The filing, by appointed postconviction counsel, of a certificate of compliance with Rule
651(c) creates a rebuttable presumption that counsel has provided the statutorily-required
reasonable level of assistance at the second stage of proceedings. Id. ¶ 31. We review de novo the
question of whether appointed counsel provided the reasonable level of assistance that is required.
Id. If we determine that appointed postconviction counsel failed to provide reasonable assistance,
we will remand for further second-stage proceedings on the petition, with new counsel to be
appointed to represent the defendant on remand. Id. ¶ 53.
¶ 18 As we undertake our de novo review of whether postconviction counsel provided
reasonable assistance, we remain mindful of the fact that substantial compliance with Rule 651(c)
is sufficient. See, e.g., People v. Profit, 2012 IL App (1st) 101307, ¶ 18. We also remain mindful
of the fact that the presumption of reasonable assistance that arises with the filing of a Rule 651(c)
certificate may be rebutted by the record. People v. Russell, 2016 IL App (3d) 140386, ¶ 10. The
failure to make a routine amendment, such as an amendment adding a claim of ineffective
assistance of appellate counsel in order to prevent the dismissal of a petition on the basis of waiver
or forfeiture, is an example of conduct on the part of postconviction counsel that rebuts the
presumption of reasonable assistance. Id. ¶ 11. There is no requirement that a defendant make a
positive showing that appointed counsel’s failure to comply with Rule 651(c) caused prejudice,
because if appointed postconviction counsel failed to fulfill the duties of Rule 651(c), remand is
required, regardless of whether the claims raised by the defendant in the petition had merit. Id.
¶ 12. Likewise, appointed counsel’s failure to comply with the rule generally will not be excused
on the basis of harmless error, because a reviewing court will not engage in speculation as to
whether the circuit court would have dismissed the petition at the second stage had counsel
complied with the rule. Id.8
¶ 19 In this case, appellate counsel for defendant argues that the record on appeal rebuts the
presumption of reasonable assistance that arose when appointed counsel filed a certificate of
compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), because (1) counsel
argued the eighth amendment issue that had previously been abandoned in light of the Illinois
Supreme Court’s decision in People v. Buffer, 2019 IL 122327, ¶¶ 40-41 (prison sentence of 40
years or less imposed on juvenile offender not a de facto life sentence), (2) counsel relied upon the
First District decision in People v. House, 2015 IL App (1st) 110580, which was vacated by our
supreme court on November 28, 2018, and (3) counsel failed to identify or attach any supporting
evidence to establish that at the time of the offense the defendant was an emerging adult and
counsel sought to produce such evidence at an evidentiary hearing when this evidence must be
presented before the petition could move to the third stage.
¶ 20 The State counters that the defendant is foreclosed from claiming any error due to entering
into a partially-negotiated guilty plea and that the defendant’s proportional penalties claim is
barred by waiver and res judicata. Further, the State argues that if the aforementioned procedural
defaults are overlooked, the defendant received reasonable assistance of counsel. The State argues
that the defendant’s claims premised on Miller were meritless.
¶ 21 In reply, appellate counsel for the defendant argues that pursuant to the Illinois Supreme
Court’s decision in People v. Addison, 2023 IL 127119, ¶ 42, “when appointed counsel does not
adequately fulfill his or her duties under Rule 651(c), a remand is required regardless of whether
the petition’s claims have merit.” We agree. On April 20, 2023, the Illinois Supreme Court issued
its opinion in People v. Addison, 2023 IL 127119. The court’s majority decision in Addison
reiterated the longstanding general legal principles cited by this court above, then expressly stated,
with regard to compliance with Rule 651(c), “[w]e fail to see how it can be reasonable assistance
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of counsel for an attorney to identify claims worth pursuing but then fail to shape them into proper
form.” Id. ¶ 26. The Addison majority thereafter reiterated that when postconviction counsel fails
to comply with Rule 651(c), such as by failing to shape claims into proper legal form, “our case
law dictates that the cause should be remanded without a consideration of whether the petition’s
claims have merit.” Id. ¶ 33. The Addison majority rejected the State’s argument that the
aforementioned case law applies only when postconviction counsel has failed to file a certificate
of compliance with Rule 651(c). Id. ¶¶ 34-38. The Addison majority ultimately held that
“[p]ostconviction counsel did not comply with Rule 651(c), because she failed to shape
defendant’s claims into proper form,” and that, accordingly, the defendant had “rebutted the
presumption of reasonable assistance that arose from postconviction counsel’s Rule 651(c)
certificate.” Id. ¶ 44. The Addison majority further held that “the appellate court correctly
remanded the cause for compliance with Rule 651(c) without considering whether the claims in
the petition were meritorious.” Id.
¶ 22 In the present case, appointed counsel violated Rule 651(c) by failing to shape the claim
into proper form, because, inter alia, counsel failed to allege specific facts in support of the
emerging adult claim as required by the Illinois Supreme Court case of People v. House, 2021 IL
125124, and advanced arguments on an eighth amendment claim that had previously been
abandoned following the Illinois Supreme Court’s decision in People v. Buffer, 2019 IL 122327.
These shortcomings doomed the defendant’s claim to failure at the second stage of proceedings
regardless of whether the claim potentially had merit and cannot be said to constitute compliance
with Rule 651(c). See, e.g., People v. Dixon, 2018 IL App (3d) 150630, ¶¶ 15-27 (failure to
(1) allege specific facts (rather than conclusory allegations), (2) support those facts with
documentation such as affidavits, or (3) allege prejudice, when bringing claim of ineffective
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assistance of counsel, renders postconviction petition “not in an appropriate legal form to present
the defendant’s claims to the [circuit] court” and rebuts the presumption of compliance with Rule
651(c)). Accordingly, the defendant has rebutted the presumption of reasonable assistance that
arose from appointed counsel’s filing of a certificate of compliance with Rule 651(c). We therefore
reverse the dismissal of the petition and remand for further proceedings with new counsel.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we reverse the order of the circuit court of Madison County that
dismissed the petition, and we remand for further second-stage proceedings with new counsel. We
direct both appellate counsel to provide copies of their briefs to circuit court counsel (including
new postconviction counsel), and to the circuit court. People v. Bell, 2018 IL App (4th) 151016,
¶ 37. We reiterate that it is well established that postconviction counsel is prohibited from
amending a petition to advance claims in the circuit court that counsel determines are frivolous
and patently without merit. See, e.g., People v. Greer, 212 Ill. 2d 192, 209 (2004). Illinois courts
of review have made it clear what counsel must do if, after the circuit court advances a petition to
the second stage because the circuit court believes that the petition is not frivolous or is not patently
without merit, counsel subsequently determines that it is. See, e.g., People v. Kuehner, 2015 IL
117695, ¶¶ 20-22, 24, 27; see also, e.g., Dixon, 2018 IL App (3d) 150630, ¶¶ 21-22 (if counsel
finds claims in petition are frivolous or patently without merit, the appropriate procedure is to stand
on pro se petition or seek to withdraw as counsel). We remind new postconviction counsel of these
principles of law and admonish new counsel to adhere to them when considering what claims, if
any, legitimately may be advanced in this case.
¶ 25 Reversed and remanded with directions.
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