People v. Huff , 2024 IL 128492 ( 2024 )

2024 IL 128492IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128492)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RICHARD HUFF, Appellant.
Opinion filed February 1, 2024.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and Rochford concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Richard Huff, filed a pro se postconviction petition alleging that his
natural life sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000). The petition was automatically advanced to the second stage due to the
time limit, and counsel was appointed. Appointed postconviction counsel filed a
certificate in accordance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017)
but did not amend the pro se petition. After the State filed a motion to dismiss the
petition, postconviction counsel did not file a response and instead stood on the
allegations in the pro se petition and the Rule 651(c) certificate. The Cook County
circuit court granted the motion to dismiss, and the appellate court affirmed.
Petitioner argues that he rebutted the presumption that postconviction counsel
provided reasonable assistance by showing that counsel stood on a meritless
petition, rather than moving to withdraw or amending the pro se petition. We hold
that petitioner failed to rebut the presumption of reasonable assistance, so we affirm
the dismissal of the pro se petition.
¶2 BACKGROUND
¶3 Petitioner was convicted of first degree murder in 2000 for the beating death of
his five-year-old daughter. A brief summary of the facts presented at trial is
sufficient for the purpose of determining the issue before us. On September 9, 1997,
the victim arrived home from kindergarten in the afternoon with homework, which
consisted of a page of coloring and tracing. After midnight, in the early hours of
September 10, 1997, petitioner arrived home from work, and the victim had not
completed her homework. Petitioner gave the victim 15 minutes to complete her
homework. After a few 15-minute time intervals, during which time the victim did
not complete her homework, petitioner began striking the victim on the bottom and
legs with a belt. Playing cards, which the victim had placed inside her underwear
to cushion the blows, fell out, so petitioner had the victim remove her shirt and
underwear. Petitioner instructed the victim, who was now naked, to stand in the
living room facing the wall. Petitioner then proceeded to strike the victim with the
belt three or four more times. The victim went back to the kitchen table to work on
her homework, but petitioner struck her again with the belt when her homework
was not completed in 15 minutes. Petitioner then began striking the victim with a
plastic bag wrapped with electrical tape. Petitioner continued to strike the victim at
regular intervals, during which time the victim was upset and stumbled numerous
times while trying to run away from petitioner. Petitioner stopped striking the
victim around 3:30 a.m. and then ran a bath for the victim. After the bath, petitioner
had to assist the victim in walking to her bed. A few hours later, around 9 a.m.,
petitioner found the victim on the floor of her bedroom, not breathing. Paramedics
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attempted lifesaving measures, but they were unsuccessful, and the victim was
transported to the hospital, where she was declared deceased.
¶4 The victim’s death was caused by multiple blunt traumas. The autopsy revealed
numerous recent external injuries: bruising about her head; hemorrhaging of the
eyes; bleeding on the inner surface of the lower lip; and bruising and/or abrasions
on her ears, jaw, neck, shoulder, forearms, upper arms, chest, abdomen, buttocks,
back, front and back upper thighs, calves, and shins. The victim also suffered
multiple areas of brain hemorrhaging, along with cerebral edema and hemorrhaging
in both kidneys. A jury found petitioner guilty of first degree murder.
¶5 The State sought the imposition of the death penalty on the basis that the victim
was under 12 years old and the victim’s death resulted from exceptionally brutal or
heinous behavior indicative of wanton cruelty. See 720 ILCS 5/9-1(b)(7) (West
1996). Petitioner waived his right to a jury for a determination of death eligibility,
and the trial court found petitioner eligible for the death penalty. In sentencing
petitioner, the trial court found that the victim was under 12 years old, petitioner
was over the age of 18, and the death of the victim was “exceptionally brutal and
heinous.” The trial court concluded that petitioner’s lack of criminal history was a
mitigating factor and sentenced petitioner to natural life in prison, rather than death.
¶6 Petitioner appealed his conviction and sentence, arguing, inter alia, that his
natural life sentence violated Apprendi because the sentence was based on a finding
of “exceptionally brutal and heinous” behavior made by the trial judge, rather than
a jury. The appellate court affirmed petitioner’s conviction and sentence, finding
that Apprendi did not apply to the trial court’s finding when petitioner had waived
a jury determination of death eligibility and petitioner had been found eligible for
the death penalty. Under those circumstances, the trial court is permitted to impose
a sentence of natural life without implicating Apprendi. People v. Huff, 331 Ill. App.
3d 1129 (2001) (table) (unpublished order under Illinois Supreme Court Rule 23).
¶7 Thereafter, in 2005, petitioner filed a pro se petition for relief from judgment
pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
1401 (West 2004)), again asserting that his extended-term sentence was
unconstitutional under Apprendi. The circuit court granted the State’s motion to
dismiss, finding that the petition under section 2-1401 of the Code was untimely
and that the sentencing claims were barred by the doctrine of res judicata. The
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appellate court affirmed, reiterating that on direct appeal it had already held that,
when a defendant is found eligible for the death penalty, the trial court may impose
a natural life sentence without implicating Apprendi. People v. Huff, 367 Ill. App.
3d 1091 (2006) (table) (unpublished order under Illinois Supreme Court Rule 23).
¶8 Petitioner filed the instant pro se postconviction petition pursuant to the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) on July 19,
2016, again contending that his natural life sentence, based on the trial judge’s
finding that the offense was “exceptionally brutal and heinous,” was
unconstitutional under Apprendi. Anticipating the procedural bars to his petition,
petitioner asserted that the law had evolved since his direct appeal, so his claim was
not barred by res judicata and the court should reconsider his claim. Petitioner also
acknowledged that his petition was untimely but addressed that ground for
dismissal by arguing that his sentence was void and the challenge could be raised
at any time.
¶9 The petition was automatically advanced to second-stage proceedings without
review by the circuit court, and counsel was appointed. Appointed counsel filed a
Rule 651(c) certificate stating that she had (1) consulted with petitioner by phone,
mail, electronic means, or in person to ascertain his contentions of deprivations of
constitutional rights; (2) obtained and examined the record of proceedings prior to
and including the trial and sentencing in the case; (3) read and researched the issues
presented in petitioner’s pro se petition; and (4) not prepared a supplemental
petition because the pro se petition “adequately set[ ] forth the petitioner’s claim of
deprivation of his constitutional rights.” The State filed a motion to dismiss,
alleging that the petition was untimely, the claim was barred by res judicata, and,
if there was an Apprendi violation, petitioner was not prejudiced. At the hearing on
the motion to dismiss, postconviction counsel stated that she would not be making
any additional arguments, but rather she would rest on her Rule 651(c) certificate
and the arguments made by petitioner in the pro se petition. Counsel also waived
petitioner’s appearance at the hearing. The circuit court granted the motion to
dismiss, finding that petitioner’s Apprendi claim was barred by res judicata.
¶ 10 On appeal, petitioner argued that, because his pro se petition was deficient on
its face, postconviction counsel acted unreasonably by neither amending the
petition nor moving to withdraw if she believed his petition could not be cured by
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an amendment. The appellate court affirmed the dismissal, holding that petitioner
failed to rebut the presumption that his postconviction counsel rendered reasonable
assistance by substantial compliance with Rule 651(c). 2022 IL App (1st) 201278-
U, ¶ 30. The court rejected petitioner’s argument that postconviction counsel was
required to either amend the pro se petition and respond to the State’s motion to
dismiss or, if no amendment was available, withdraw from the case. The appellate
court acknowledged that one of the requirements of Rule 651(c) was to make any
amendments necessary for the adequate presentation of petitioner’s claims, but
amendments that would only further a frivolous or patently nonmeritorious claim
were not “necessary” within the meaning of the rule. Id. ¶ 27 (citing People v.
Greer, 212 Ill. 2d 192, 205 (2004)). The court held that, while prior case law
“authorize[d] withdrawal of postconviction counsel where the petition cannot be
amended to state a meritorious claim, it nowhere create[d] a per se requirement that
counsel must withdraw instead of complying with Rule 651(c) (eff. July 1, 2017)
and standing on the pro se petition.” Id. ¶ 36. The appellate court concluded that
postconviction counsel’s decision to rest on the pro se petition, when no
amendment was available, did not rebut the presumption of reasonable assistance.
Id. ¶ 40.
¶ 11 We granted petitioner’s petition for leave to appeal, which asks this court to
resolve a split among the appellate districts over whether postconviction counsel,
if they believe a pro se petition is frivolous, must move to withdraw or whether
counsel has a choice between withdrawing or standing on the pro se petition.
¶ 12 ANALYSIS
¶ 13 The issue before us is whether postconviction counsel’s decision to file a Rule
651(c) certificate and stand on petitioner’s pro se postconviction petition, rather
than either amending the petition or moving to withdraw, rebutted the presumption
of reasonable assistance. Our review of a circuit court’s dismissal of a
postconviction petition at the second stage is de novo, as is our review of the proper
interpretation of a supreme court rule. People v. Suarez, 224 Ill. 2d 37, 41-42
(2007).
¶ 14 Petitioner argues that the pro se petition was frivolous as written and required
dismissal during second-stage proceedings absent an amendment to state a
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nonfrivolous claim. Petitioner argues that, when a petition only makes frivolous
claims, postconviction counsel has only two choices: (1) amend the pro se petition
or (2) move to withdraw under Greer. Petitioner contends that postconviction
counsel did not have the choice to rest on the frivolous pro se petition. By resting
on the frivolous pro se petition, postconviction counsel acted unethically, silenced
petitioner, and nullified petitioner’s opportunity to flesh out his pro se claims.
Petitioner argues that his showing that postconviction counsel rested on the petition
rebutted the presumption of reasonable assistance, requiring remand for further
second-stage proceedings with newly appointed counsel. Petitioner relies on
several appellate court decisions in support of his argument, which state that if
postconviction counsel finds all the claims in the pro se petition to be frivolous or
patently without merit, counsel must file a motion to withdraw. See, e.g., People v.
Shortridge, 2012 IL App (4th) 100663, ¶ 13; People v. Elken, 2014 IL App (3d)
120580, ¶ 36; People v. Moore, 2018 IL App (2d) 170120, ¶ 33.
¶ 15 The State argues that petitioner failed to rebut the presumption of reasonable
assistance that was created by the filing of counsel’s Rule 651(c) certificate.
Postconviction counsel performed the duties described in Rule 651(c). The fact that
petitioner’s claim was weak or ultimately without legal merit did not render
counsel’s performance unreasonable. The State contends that Greer only holds that
postconviction counsel may withdraw under the Act when counsel feels ethically
compelled to do so. The State contends that Greer does not hold that counsel
provides unreasonable assistance when counsel declines to withdraw when faced
with a frivolous petition but, in any event, there was no indication that
postconviction counsel believed the petition to be frivolous. The State relies on
several appellate court decisions that state that if postconviction counsel finds all
the claims in a pro se petition to be frivolous and that it cannot be amended to state
a nonfrivolous claim, counsel has the option of standing on the pro se petition or
withdrawing as counsel. See, e.g., People v. Malone, 2017 IL App (3d) 140165,
¶ 10; People v. Dixon, 2018 IL App (3d) 150630, ¶ 22; People v. Pace, 386 Ill.
App. 3d 1056, 1062 (4th Dist. 2008).
¶ 16 Under the particular facts of this case, we find it unnecessary to reach the issue
upon which the appellate districts are split, i.e., whether postconviction counsel
may stand on a pro se petition that counsel knows to be frivolous. As will be
discussed further below, there is no indication that postconviction counsel found
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petitioner’s claim to be frivolous. Therefore, we will address whether petitioner
rebutted the presumption of reasonable assistance where there was no indication
that postconviction counsel knew the claim to be frivolous.
¶ 17 I. Post-Conviction Hearing Act
¶ 18 The Act provides a procedural mechanism for a convicted criminal defendant
to assert “that *** in the proceedings which resulted in his or her conviction there
was a substantial denial of his or her rights under the Constitution of the United
States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2016);
People v. Dupree, 2018 IL 122307, ¶ 28. Proceedings under the Act are not a
continuation of nor an appeal from the original case but consist of a collateral attack
on the criminal conviction. People v. Harris, 224 Ill. 2d 115, 124 (2007). The
collateral attack is limited in scope to constitutional matters that have not been, and
could not have been, previously adjudicated. Id. “Any issues that could have been
raised on direct appeal, but were not, are procedurally defaulted, and any issues that
have previously been decided by a reviewing court are barred by res judicata.” Id.at 124-25 (citing People v. Rissley, 206 Ill. 2d 403, 412 (2003)).
¶ 19 We begin with a brief review of the legal principles governing proceedings
under the Act. The Act provides a three-stage process for adjudicating
postconviction petitions. People v. Custer, 2019 IL 123339, ¶ 29. At the first stage,
the circuit court is directed to independently assess the petition and dismiss the
petition if the court determines that the petition is “frivolous” or “patently without
merit.” 725 ILCS 5/122-2.1(a)(2) (West 2016). A postconviction petition advances
beyond the first stage in one of two ways. First, it advances if it is reviewed by the
circuit court as mandated by the Act and is not dismissed as frivolous or patently
without merit. People v. Urzua, 2023 IL 127789, ¶ 32. Alternatively, a
postconviction petition advances to the second stage if the circuit court fails to rule
on the petition within the 90-day period required by the Act. Id.; 725 ILCS 5/122-
2.1(a) (West 2016)). It is at the second stage that an indigent defendant may request
appointment of counsel and that the State answers or moves to dismiss the petition.
725 ILCS 5/122-4, 122-5 (West 2016). If the allegations in the petition, supported
by “affidavits, records, or other evidence” make a substantial showing of a
deprivation of constitutional rights, the petition will advance to a third stage for an
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evidentiary hearing. Id. § 122-2; Harris, 224 Ill. 2d at 126.
¶ 20 II. Reasonable Assistance Under the Act
¶ 21 There is no constitutional right to counsel in proceedings under the Act; rather,
the right to counsel is “a matter of legislative grace,” derived from the Act. Custer,
2019 IL 123339, ¶ 30. The standard under the Act is that a petitioner is entitled to
reasonable assistance of counsel, which is “a standard that is significantly lower
than the one mandated at trial by our state and federal constitutions.” Id. We have
explained that this lesser level of assistance is rational because of the different
posture of postconviction proceedings. People v. Addison, 2023 IL 127119, ¶ 19.
While a defendant is presumed innocent prior to trial, a postconviction petitioner
has already been stripped of the presumption of innocence. Id. Since the petitioner,
rather than the State, initiates the proceeding by claiming that constitutional
violations occurred at trial, counsel’s role is to “shape their complaints into the
proper legal form and to present those complaints to the court” rather than to
“protect postconviction petitioners from the prosecutorial forces of the State.” Id.¶ 22 To ensure that postconviction petitioners receive reasonable assistance, Rule
651(c) delineates specific duties that postconviction counsel must undertake in
postconviction proceedings. Suarez, 224 Ill. 2d at 42. Counsel is required to certify
that counsel has consulted with the petitioner to ascertain his contentions of
deprivation of constitutional rights, examined the record of the proceedings and the
trial, and made any amendments to the pro se petition that are necessary to
adequately present the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1,
2017); Custer, 2019 IL 123339, ¶ 32. Amendments that would “only further a
frivolous or patently nonmeritorious claim *** are not ‘necessary’ ” under Rule
651(c). Greer, 212 Ill. 2d at 205. Counsel’s certification that he or she complied
with those duties creates a rebuttable presumption that counsel provided the
petitioner “a reasonable level of assistance.” Urzua, 2023 IL 127789, ¶ 54.
¶ 23 Petitioner acknowledges that his postconviction counsel filed a Rule 651(c)
certificate. Consequently, counsel is presumed to have provided reasonable
assistance, and the burden is on petitioner to rebut that presumption. See Addison,
2023 IL 127119, ¶ 21. Petitioner contends that he rebutted the presumption by
showing that postconviction counsel did not make all necessary amendments to the
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pro se petition. Alternatively, petitioner argues that he rebutted the presumption
because, if postconviction counsel could not amend the pro se petition and the
petition was frivolous, then appointed counsel had an obligation to withdraw.
¶ 24 Postconviction counsel certified that she made any amendments to the pro se
petition that were necessary to adequately present petitioner’s Apprendi claim. It is
presumed from the lack of an amendment that there were none to be made. See
People v. Perkins, 229 Ill. 2d 34, 50 (2007). Notably, petitioner does not identify
any necessary amendments to his pro se petition that could have been made by
counsel to allow the petition to survive dismissal. Rather, he argues on appeal that
his Apprendi claim is frivolous.
¶ 25 On that basis—that his Apprendi claim is frivolous and could not be amended
to state a claim—petitioner argues that postconviction counsel could not present the
pro se claim to the court and had to withdraw as counsel. The State responds that
counsel was only required to make the amendments necessary to shape petitioner’s
claims into the proper legal form but was not required to make frivolous
amendments or find new claims beyond those identified by petitioner. Counsel’s
Rule 651(c) certificate created the presumption that no amendments were available.
Petitioner failed to rebut the presumption by identifying anything in the record that
shows that counsel failed to make a necessary amendment or suggesting any
amendments counsel could have made. Also, the State contends that Greer and the
rules of ethics do not prevent counsel from bringing claims that counsel believes
are meritless; instead, counsel is prevented from bringing patently without merit or
frivolous claims. Nothing in the record suggests that counsel believed that the
petition was frivolous, such that she would be ethically bound to withdraw.
¶ 26 III. Greer
¶ 27 We begin by reviewing our decision in Greer. In that case, like the instant case,
the petitioner filed a pro se postconviction petition that advanced to the second
stage by default, and postconviction counsel was appointed. A few months later
and after reviewing the petitioner’s pro se petition, postconviction counsel filed a
motion to withdraw. In the motion, counsel stated that he had reviewed the record,
the transcripts of proceedings, and the State’s Attorney’s files and had interviewed
all relevant parties, including the petitioner, but could find no basis on which to
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present any meritorious issue for review. Counsel supported his motion to withdraw
with a brief purporting to comply with Anders v. California, 386 U.S. 738 (1967).
Following a hearing, the circuit court granted counsel’s motion to withdraw but
also sua sponte dismissed the petitioner’s postconviction petition. Before this court,
the petitioner’s sole argument was that the circuit court erred in granting counsel’s
motion to withdraw. According to the petitioner, because nothing in the Act
specifically allows for the withdrawal of appointed counsel, the circuit court had
no authority to grant such relief and in doing so denied the petitioner his statutory
right to counsel. We rejected this argument, acknowledging that, when a petition
automatically advances to the second stage without review by a circuit court, the
petition “may well be frivolous or patently without merit.” Greer, 212 Ill. 2d at 204.
Nothing in the Act prevented postconviction counsel from moving to withdraw if
he or she determined that the petition was frivolous or patently without merit and
that the attorney’s ethical obligations therefore prohibited him or her from
continuing representation. Id. at 209.
¶ 28 The holding in Greer was so limited, but we also posited this question: “What
is defense counsel to do after he or she determines that defendant’s petition is
frivolous? Is counsel to stand mute at all subsequent proceedings? How can
counsel, ethically, ‘present the petitioner’s contentions’ when counsel knows those
contentions are frivolous?” (Emphasis in original.) Id. at 206. Our answer to that
hypothetical question in Greer was that counsel could not continue to present a
petitioner’s known frivolous claims. Id. If appointed counsel knows that the
contentions are patently without merit or wholly frivolous, counsel has an ethical
duty to not “needlessly consum[e] the time and energies of the court and the State
by advancing frivolous arguments.” Id. at 207; see also Urzua, 2023 IL 127789,
¶ 37 (citing Greer for the proposition that advancing frivolous or spurious claims
violates counsel’s ethical duties).
¶ 29 Our hypothetical in Greer suggests that, if appointed counsel knows that a
petitioner’s claims were frivolous or patently without merit, then counsel has an
ethical duty to withdraw. However, that is not the state of the case before this court.
Nothing in the record suggests that postconviction counsel knew that the petition
was frivolous or patently without merit. See Black’s Law Dictionary (11th ed.
2019) (“frivolous” is defined as “[l]acking a legal basis or legal merit; manifestly
insufficient as a matter of law” and “patent” means “[o]bvious; apparent”). Also,
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the court, not counsel, is the ultimate arbiter of whether “the claims in the petition
are meritorious.” Urzua, 2023 IL 127789, ¶ 41. Different counsel may differ in their
opinions regarding the merits of the petition. Id. ¶¶ 11, 16 (appointed counsel filed
a motion to withdraw pursuant to Greer, but later retained counsel adopted the same
pro se petition).
¶ 30 In this case, petitioner presented a single Apprendi claim. That claim had
already been rejected on direct appeal and in a proceeding under section 2-1401 of
the Code. However, petitioner argued that the law regarding Apprendi had changed
since those decisions, so res judicata did not prevent his claim. The pro se petition
also presented a defense to the timeliness basis for dismissal. While petitioner’s
claim was ultimately unsuccessful, there is no indication that appointed counsel
“knew” that the claim was “frivolous and patently without merit.” Since there is no
indication in the record that postconviction counsel knew, or even believed, that
petitioner’s claim was frivolous or patently without merit, we do not reach the issue
exactly as posed in the petition for leave to appeal. Instead, we ask and answer this
question, which is ancillary to the question that we raised in Greer: Must
postconviction counsel, who was appointed without a first-stage ruling by the
circuit court, move to withdraw when petitioner’s pro se petition posits a weak legal
claim but the claim is presented in the best possible legal form and there is no
indication that counsel knew the claim was frivolous? We find that, under those
circumstances, counsel has no duty to withdraw.
¶ 31 Petitioner also argues that postconviction counsel did not challenge the motion
to dismiss. That is not an accurate statement of the proceedings below. While
postconviction counsel did not file a separate response to the motion to dismiss, she
rested on the allegations in the pro se petition, which specifically addressed the
grounds for dismissal. This is not a situation where postconviction counsel
confessed to the motion to dismiss or informed the court that petitioner’s
contentions had no merit. See, e.g., Shortridge, 2012 IL App (4th) 100663, ¶¶ 14-
15 (if appointed counsel believed that defendant’s claims were frivolous, counsel
should have moved to withdraw rather than confessed to the motion to dismiss);
Elken, 2014 IL App (3d) 120580, ¶ 36 (same).
¶ 32 Since we have concluded that appointed counsel provided reasonable assistance
to petitioner, we do not reach petitioner’s argument that he was denied procedural
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due process.
¶ 33 CONCLUSION
¶ 34 We conclude that petitioner did not rebut the presumption of reasonable
assistance. Postconviction counsel’s Rule 651(c) certificate created a presumption
that no required amendments were available. There was no showing that
postconviction counsel knew that petitioner’s claim was frivolous or patently
without merit. Under these circumstances, where petitioner has not identified any
amendment necessary to adequately present his Apprendi claim and where there
was no indication that appointed counsel knew the claim was frivolous, rather than
merely weak, there was no obligation for appointed counsel to withdraw. Thus, we
affirm the judgment of the appellate court, which affirmed the judgment of the
circuit court dismissing petitioner’s postconviction petition.
¶ 35 Judgments affirmed.
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