People v. Moore ( 2021 )

2021 IL App (1st) 190389-UNo. 1-19-0389
SECOND DIVISION
June 29, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 03 CR 11202
)
DUANE MOORE, )
) The Honorable
Defendant-Appellant. ) Kerry M. Kennedy,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: Where postconviction counsel rendered unreasonable assistance by failing to amend
defendant’s pro se postconviction petition to avoid potential waiver claims and to include the
essential elements of defendant’s claim of ineffective assistance of plea counsel, the trial court
erred in dismissing defendant’s postconviction petition. Defendant was therefore entitled to
reversal and remand for new second-stage proceedings with the appointment of new counsel.
¶2 Defendant, Duane Moore, appeals from the trial court’s second-stage dismissal of his
successive postconviction petition. On appeal, defendant argues that the dismissal of his petition
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must be reversed, because he received unreasonable assistance from postconviction counsel. For
the reasons that follow, we reverse and remand for further proceedings.
¶3 BACKGROUND
¶4 In 2003, defendant was charged with three counts of first degree murder (720 ILCS 5/9-1(a)(1)-
(3) (West 2002)), five counts of attempted first degree murder (720 ILCS 5/8-4 (West 2002); 720
ILCS 5/9-1(a)(1)), two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2 (West
2002)), six counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2002)),
and three counts of attempted aggravated vehicular hijacking (720 ILCS 5/8-4; 720 ILCS 5/18-
4(a)(5) (West 2002)).
¶5 In 2006, following a Supreme Court Rule 402 (eff. July 1, 1997) conference, defendant
pleaded guilty to count I, which alleged that he committed first degree murder when he shot and
killed Joyce Julian. According to the factual basis presented in support of the plea, on December
28, 2002, Julian went to a bar in Markham, Illinois, with a group of friends. While there, Julian’s
friends engaged in a confrontational conversation with a group of people that included defendant.
Later, Julian and her friends left the bar in a car. While they were stopped at a stoplight, defendant
got out of the vehicle that was behind them, approached the vehicle in which Julian was riding,
and fired numerous shots into the car. Two of those shots struck Julian—one in her back and one
in her neck—killing her. Defendant was 16 at the time of the offense. Pursuant to the Rule 402
discussions, the trial court sentenced defendant to 28 years’ imprisonment on count I, to be served
at 100 percent. The State nolle prossed the remaining charges against defendant. No direct appeal
was ever taken.
¶6 In 2011, defendant filed a postconviction petition alleging that his rights to due process and
fundamental fairness were violated when he pleaded guilty without understanding that the three-
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year term of mandatory supervised release was in addition to and not a part of the 28 years’
imprisonment. The trial court summarily dismissed defendant’s petition as frivolous and patently
without merit, based on the conclusion that the transcript of the plea hearing demonstrated that
defendant was properly advised of the term of mandatory supervised release. Defendant appealed
this dismissal, but then later voluntarily dismissed his appeal.
¶7 In 2014, defendant sought leave to file a petition for mandamus based on the claim that the
term of mandatory supervised release should have been included in the 28 years’ of imprisonment.
The trial court removed defendant’s petition from the call until he achieved proper service. The
record does not reflect any further action on defendant’s petition for mandamus.
¶8 In December 2015, defendant filed a successive postconviction petition. In that petition,
defendant made the following claims: (1) the State failed to file the proper motion to transfer
defendant to adult court for prosecution, which violated defendant’s due process rights and voided
all subsequent proceedings; (2) plea counsel was ineffective when he failed to advise petitioner of
his double jeopardy rights where he was charged with 19 counts that all included the use or
possession of a firearm as an essential element in violation of the one-act, one-crime rule and
where counsel failed to file a motion to dismiss the duplicative charges; (3) his due process rights
were violated where the trial court permitted him to plead guilty and thereby waive his right to
double jeopardy protection without knowing that the 19 charges violated the one-act, one-crime
rule, did not do anything to prevent defendant from being brought to trial on all 19 charges in
violation of the one-act, one-crime rule, did not admonish defendant of his right to double jeopardy
protection, and did not make a determination that defendant’s waiver of his right to double
jeopardy protection was intelligent; and (4) his guilty plea was not voluntary where plea counsel
was ineffective in failing to explain to defendant the terms and consequences of the plea agreement
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and where the trial court initiated the Rule 402 discussions, dictated the terms of the plea
agreement, and forced defendant to accept the sentence.
¶9 A couple of months later, defendant also filed a petition for relief from judgment under section
2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). In that petition,
defendant argued that the trial court did not advise him that he would be required to serve the term
of mandatory supervised release, just that he could possibly be sentenced to a term of mandatory
supervised release. The State filed a motion to dismiss defendant’s petition for relief from
judgment.
¶ 10 The trial court appointed counsel to represent defendant. Although it is not clear from the
record whether the trial court intended to appoint counsel to represent defendant with respect to
both his successive postconviction petition and his petition for relief from judgment, counsel
undertook to represent defendant on both. On May 25, 2018, counsel filed a certificate pursuant
to Supreme Court Rule 651(c) (eff. July 1, 2017), certifying that he had consulted with defendant
on numerous occasions to ascertain his contentions of deprivations of constitutional rights in his
successive postconviction petition, reviewed the record related to defendant’s conviction, and
examined defendant’s pleadings and determined that they adequately presented defendant’s claims
of deprivations of constitutional rights.
¶ 11 The State then filed a motion to dismiss defendant’s successive postconviction petition. In that
motion, the State argued that defendant waived any claims of trial court error by failing to raise
them on direct appeal, defendant failed to demonstrate that juvenile transfer applied to him,
defendant waived his claim of ineffective assistance of plea counsel by pleading guilty, defendant
failed to demonstrate how plea counsel subjected him to double jeopardy where he plead guilty to
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and was convicted of only a single count of first degree murder, and defendant failed to
demonstrate that he was prejudiced by plea counsel’s alleged ineffectiveness.
¶ 12 On November 16, 2018, the trial court held a hearing. At that hearing, the State opened by
arguing its motion to dismiss defendant’s successive postconviction petition. When given the
opportunity to respond, defense counsel stated that defendant stood on his petition, but then went
on to argue the mandatory supervised release contention raised in defendant’s petition for relief
from judgment. After the State responded to the mandatory supervised release argument, defense
counsel stated that defendant had made him aware of a new case related to the mandatory
supervised release contention and asked the trial court to consider it. The trial court agreed to
continue the hearing to allow defense counsel the opportunity to provide a copy of the case to the
trial court.
¶ 13 On December 14, 2018, the hearing resumed. In opening, the State noted that they were in the
middle of “second-stage argument,” but then went on to argue that the case defendant presented
did not apply, because the transcript of the plea hearing demonstrated that defendant was properly
admonished regarding the mandatory supervised release. Defense counsel chose to rest on the
arguments he made at the previous hearing. The trial court then granted the State’s motion to
dismiss, stating as follows:
“All right. As to the State’s motion, I am going to grant their Motion to Dismiss. There
is no substantive showing of a Constitutional violation. The MSR—which is what he was
concerned with—was explained to him, and he was told. So off call.”
The common law record does not contain any written orders regarding the disposition of the State’s
motions to dismiss defendant’s petition for relief from judgment and successive postconviction
petition. It does, however, contain two “Criminal Disposition Sheets” for December 14, 2018.
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The first states that the case law presented by defendant did not apply, defendant was admonished
regarding the mandatory supervised release, the State’s motion to dismiss was granted, there was
no substantive showing of a constitutional violation, and the matter was taken off the call. The
second simply states that the State’s motion to dismiss was granted and that the matter was taken
off the call.
¶ 14 Defendant then instituted this timely appeal.
¶ 15 ANALYSIS
¶ 16 On appeal, defendant argues that we should reverse the trial court’s dismissal of his successive
postconviction petition and remand for new second-stage proceedings, because the assistance he
received from postconviction counsel was unreasonable. More specifically, defendant contends
that postconviction counsel’s assistance was unreasonable in that counsel failed to amend his pro
se petition to (1) explain the specific unreasonable actions that were taken by plea counsel and
what surprised defendant about his plea, (2) attach an affidavit from defendant detailing what plea
counsel told him and why he pleaded guilty, (3) clarify the basis for defendant’s claims, (4) include
the necessary elements of defendant’s claim of ineffective assistance of plea counsel, (5) rebut the
State’s claims of waiver, and (6) raise additional claims related to the sentencing of juveniles.
Defendant also argues that if postconviction counsel found the claims in defendant’s pro se petition
to be frivolous, he was obligated to withdraw as counsel, rather than simply stand on defendant’s
pro se petition. Defendant makes no contentions on appeal related to his petition for relief from
judgment.
¶ 17 A criminal defendant does not have a constitutional right to counsel in postconviction
proceedings; instead, the right to counsel in such proceedings is purely statutory. People v Suarez,
224 Ill. 2d 37, 42 (2007); see also 725 ILCS 5/122-4 (West 2014). Accordingly, the level of
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assistance to which a criminal defendant is entitled in a postconviction proceeding is governed by
the Post-Conviction Hearing Act (“Act”) (725 ILCS 5/122-1 et seq. (West 2014)). Suarez, 224 Ill.
2d at 42. Under the Act, defendants are entitled to a reasonable level of assistance. Id. To that
end, Supreme Court Rule 651(c) imposes three duties on postconviction counsel that must be met
to render reasonable assistance: (1) consult with the defendant to ascertain the defendant’s
contentions of deprivation of constitutional rights, (2) examine the record of proceedings, and (3)
make any amendments to the defendant’s pro se petition that are necessary to adequately present
the defendant’s contentions. Suarez, 224 Ill. 2d at 42. Where postconviction counsel files a Rule
651(c) certificate certifying that he fulfilled each of these duties, a rebuttable presumption that
postconviction counsel rendered reasonable assistance is created. People v. Wallace, 2018 IL App
(5th) 140385, ¶ 31. Whether postconviction counsel provided reasonable assistance to defendant
is reviewed de novo. Id.¶ 18 As articulated above, defendant alleges that postconviction counsel in this matter failed to
provide reasonable assistance in a number of respects. We conclude that postconviction counsel
failed to make the necessary amendments to adequately present defendant’s claims when he failed
to amend defendant’s pro se petition to avoid potential waiver claims and to include all of the
essential elements of his claim of ineffective assistance of plea counsel. Postconviction counsel’s
failure in this respect warrants reversal and remand for new second-stage proceedings with the
appointment of new counsel.
¶ 19 With respect to potential waiver claims, defendant points out that in its motion to dismiss, the
State argued that he waived his claim of ineffective assistance of plea counsel by virtue of his
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guilty plea. 1 Although postconviction counsel, at the time that he filed his Rule 651(c) certificate,
could not have known precisely what the State might argue in a motion to dismiss, the principle
that a guilty plea waives all non-jurisdictional defects, including claims of ineffective assistance
of counsel, is well known and established. See People v. Ivy, 313 Ill. App. 3d 1011, 1017 (2000).
The only exception is that a defendant may allege ineffective assistance of trial counsel caused his
guilty plea to be involuntary and unintelligent. People v. Smith, 383 Ill. App. 3d 1078, 1085
(2008).
¶ 20 Here, defendant raised two claims of ineffective assistance of plea counsel in his pro se
petition: (1) ineffectiveness in failing to advise defendant of his double jeopardy rights and to file
a motion to dismiss duplicative charges and (2) ineffectiveness in failing to explain the terms and
consequences of the plea agreement, thereby rendering his guilty plea involuntary. Although
defendant, on his own accord, alleged that the latter claim of ineffectiveness resulted in his guilty
plea being involuntary, he did not make any such allegation with respect to the former claim of
ineffectiveness. Accordingly, absent amendment, that claim of ineffectiveness was subject to
dismissal on the basis that it was waived by defendant’s guilty plea. On the other hand, had
postconviction counsel amended defendant’s pro se petition to allege that plea counsel’s failure to
advise defendant that he could not be convicted of and sentenced on all of the charged offenses
1
We note that neither this contention nor any of the other arguments raised by the State in its
motion to dismiss defendant’s successive postconviction petition were directly addressed by the
trial court during the hearings on the matter. Rather, it appears that the trial mistook defendant’s
contentions in his successive postconviction petition for the contentions in his petition for relief
from judgment and, as a result, dismissed defendant’s successive postconviction petition based on
the conclusion that the claim raised in defendant’s petition for relief from judgment lacked merit.
Because we reverse and remand for new second-stage proceedings based on the conclusion that
defendant did not receive the reasonable assistance of postconviction counsel, we need not address
the potential question of whether the trial court’s dismissal of defendant’s successive
postconviction petition without addressing the grounds raised in it warrants reversal.
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rendered his guilty plea involuntary or unintelligent, defendant’s claim of ineffectiveness in this
respect would not be subject to waiver. This failure of postconviction counsel to amend
defendant’s pro se petition so as to avoid a claim of waiver by the State constitutes unreasonable
assistance. See People v. Turner, 187 Ill. 2d 406, 413-14 (1999) (counsel’s failure to amend the
defendant’s pro se postconviction petition to overcome waiver was unreasonable); People v.
Schlosser, 2012 IL App (1st) 092523, ¶¶ 23-24 (same); see also People v. Perkins, 229 Ill. 2d 34,
44 (2007) (“An adequate or proper presentation of a petitioner’s substantive claims necessarily
includes attempting to overcome procedural bars, including timeliness, that will result in dismissal
of a petition if not rebutted.”).
¶ 21 Although not explicitly raised by defendant, we also observe that the State argued that the trial
court errors alleged by defendant in his pro se petition were waived because they could have been
raised on direct appeal. See People v. Adams, 338 Ill. App. 3d 471, 475 (2003) (“In post-conviction
proceedings, all issues *** which could have been presented but were not are deemed waived.”).
This waiver, however, like the potential waiver discussed above, could have easily been avoided
by postconviction counsel’s amendment of defendant’s pro se petition to allege that appellate
counsel was ineffective for failing to raise the trial court’s alleged errors on direct appeal. His
failure to do so was unreasonable. See Turner, 187 Ill. 2d at 413 (postconviction counsel’s failure
to amend the defendant’s pro se petition to allege ineffective assistance of appellate counsel to
avoid waiver was unreasonable).
¶ 22 In addition to failing to amend defendant’s pro se petition to avoid the application of waiver,
postconviction counsel also failed to amend defendant’s petition to allege all of the essential
elements of his claims of ineffective assistance of plea counsel. When a defendant claims that his
guilty plea was not voluntarily or intelligently made because his counsel was ineffective, his claim
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is assessed under the ordinary standard applied to claims of ineffective assistance of counsel,
namely, defendant must demonstrate that counsel’s performance fell below an objective standard
of reasonableness and that he was prejudiced by counsel’s deficient performance. People v. Hall,
217 Ill. 2d 324, 334-35 (2005). Under these circumstances, however, defendant’s allegations of
prejudice must consist of more than just a claim that, absent counsel’s substandard performance,
defendant would not have pleaded guilty and would have insisted on going to trial. Id. at 335.
Defendant must also either allege that he is innocent of the charged offense or articulate a plausible
defense that could have been presented at trial. Id. at 335-36.
¶ 23 In his pro se petition, defendant alleged that his guilty plea was not voluntary because plea
counsel was ineffective in failing to advise him of the terms and consequences of the plea
agreement. He also alleged that in the trial court, he maintained his innocence as to the 18 charges
to which he did not plead guilty. He made no allegation, however, that he was actually innocent
of the first-degree murder charge to which he pleaded guilty, and he did not articulate any defense,
plausible or otherwise, that could have been presented at trial. Accordingly, defendant’s pro se
petition did not contain all of the essential elements of his claim of ineffective assistance of
counsel. Postconviction counsel did not amend to correct these deficiencies in defendant’s pro se
petition, and the failure to do so was unreasonable. See Turner, 187 Ill. 2d at 413-14(postconviction counsel’s failure to amend the defendant’s petition to include all of the essential
elements of the defendant’s claim of ineffective assistance of counsel constituted unreasonable
assistance).
¶ 24 We note that defendant argues additional respects in which postconviction counsel should have
amended his pro se petition, including adding a number of claims that defendant did not include
in his pro se petition. Because postconviction counsel’s failure to amend defendant’s pro se
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petition to avoid waiver and to include all of the essential elements of a claim of ineffective
assistance alone is enough to require reversal and remand, we need not address each and every
claim of unreasonableness raised by defendant. Our choice to not address them, however, should
not be interpreted as any reflection of our opinion on the merit of those contentions.
¶ 25 In sum, because postconviction counsel rendered unreasonable assistance to defendant when
he failed to amend defendant’s pro se petition to overcome claims of waiver or to include the
essential elements of defendant’s claim of ineffective assistance of plea counsel, we reverse the
trial court’s dismissal of defendant’s petition, and remand for new second-stage proceedings with
the appointment of new counsel. See People v. Nitz, 2011 IL App (2d) 100031, ¶¶ 19, 21 (where
postconviction counsel rendered unreasonable assistance by failing to amend the defendant’s pro
se petition to adequately present his claims, the dismissal of the defendant’s petition was reversed
and the matter remanded for further proceedings with the appointment of new counsel).
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed, and
the matter is remanded for further proceedings consistent with this decision.
¶ 28 Reversed and remanded.
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