People v. Bryant

2022 IL App (2d) 200279No. 2-20-0279
Opinion filed April 14, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 07-CF-3052
)
EDWARD L. BRYANT, ) Honorable
) Randy Wilt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 We consider in this case the proper procedure for appointed counsel to withdraw from
postconviction proceedings per our supreme court’s decision in People v. Kuehner, 2015 IL
117695. We hold that such a motion cannot be granted unless the record shows defendant has had
an opportunity to respond to it.
¶2 I. BACKGROUND
¶3 In 2006, defendant, Edward L. Bryant, was charged with first degree murder (720 ILCS
5/9-1(a)(2) (West 2006)) in the death of his neighbor, William Jacobson. Jacobson was found
beaten to death in the basement inside his home. A bloodied brick and a table leg were found at
the crime scene, and Jacobson’s blood was found on a pair of defendant’s shorts.
2022 IL App (2d) 200279¶4 Defendant’s roommate, Patricia Smith, testified that she heard voices at Jacobson’s house
and the sound of “metal” falling over in the basement. She then heard Jacobson call out, “ ‘Ed’ ”—
defendant’s first name. Smith also identified the camouflage shorts (with Jacobson’s blood on
them) as the ones defendant had been wearing the night of the murder. She testified pursuant to a
cooperation agreement to dismiss a residential burglary charge, because, after Jacobson was killed,
she entered his home and stole some items. Prince Bey, defendant’s fellow inmate, jailed on drug
charges, testified that defendant said that he “got into it with some old man” over having paid
someone else money defendant felt he was owed and that defendant hit the man in the head.
Defendant testified that he believed that he got Jacobson’s blood on his shorts a week before the
murder, when Jacobson cut his lip and spit out some beer, and then the wind blew the bloodied
mist onto defendant’s shorts.
¶5 A jury found defendant guilty, and the trial court (Judge Rosemary Collins) sentenced him
to the maximum nonextended term of 60 years’ imprisonment. We affirmed defendant’s
conviction and sentence on direct appeal. People v. Bryant, 2013 IL App (2d) 110994-U.
¶6 In March 2014, defendant filed a pro se postconviction petition in which he asserted several
claims, including ineffective assistance of trial counsel, largely for failure to investigate possible
impeachment evidence—specifically, regarding Smith’s mental health history (at trial, she
disclosed that she was bipolar, on medication, and smoked crack cocaine daily, including the night
of the murder) and other inmates’ claims that they heard Bey say that he lied about hearing
defendant admit killing Jacobson. Defendant also alleged that his counsel failed to show him all
of the State’s discovery, including the video of his interrogation.
¶7 The trial court (again, Judge Collins) reviewed the petition, advanced it to the second stage
of postconviction proceedings, and appointed Assistant Public Defender Gary Pumilia. Pumilia
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2022 IL App (2d) 200279later withdrew because he was mentioned as a possible witness in the petition, and the court
appointed attorney Patrick E. Braun as counsel for defendant in July 2014.
¶8 Over the next few years, Braun represented to the court that he was reviewing the record
and communicating with defendant. Braun also sought and received all of the State’s trial
discovery in May 2018.
¶9 On December 6, 2019, Braun advised the court (now Judge Randy Wilt) that he had sent a
copy of the amended postconviction petition to defendant for his review and that the two had
corresponded on its contents and the need for additional case citations. On Braun’s motion, the
case was again continued.
¶ 10 On January 31, 2020, Braun moved to withdraw pursuant to Kuehner, 2015 IL 117695. As
part of his 10-page motion, Braun set forth the claims from defendant’s pro se petition and
explained why each lacked arguable merit. In addition, Braun also filed a certificate under Illinois
Supreme Court Rule 651(c) (eff. July 1, 2017), stating that he consulted with defendant by mail,
examined the record, and made any amendments necessary to present defendant’s claims. The
court asked Braun to send to defendant a copy of the motion to withdraw, and Braun said that he
would. Braun then asked if the court wanted to issue a writ for defendant to appear at the next date,
to which the court replied, “That’s not a bad idea. We should bring him back.” Braun stated that
he would prepare the writ, and the case was continued. We note, too, that the docket entry for that
date states, “Defendant to be writ back to address defense counsel’s motion. Cause [c]ontinued.”
¶ 11 On March 6, 2020, Braun returned to court, but defendant was not present. It appears that
no writ was ever filed to bring defendant to court and his absence was never addressed.
¶ 12 Braun told the court that he had sent to defendant a copy of his motion to withdraw and
that defendant had asked the court to appoint another attorney for him if Braun’s motion was
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2022 IL App (2d) 200279granted. The court stated that it viewed Braun’s motion to withdraw as an “Anders brief.” Anders
v. California, 386 U.S. 738 (1967). The court granted the motion to withdraw and denied
defendant’s request for the appointment of new counsel. The court initially said that it would give
defendant until May 1, 2020, to file an amended petition, but then the court recalled the case
sua sponte and said that it would “modif[y]” its prior order and “enter an order dismissing the
postconviction petition.”
¶ 13 Defendant filed a notice of appeal, which included as an exhibit a copy of the amended
petition Braun prepared on his behalf, and the trial court appointed the Office of the State Appellate
Defender to represent him.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant contends that he was denied a “meaningful opportunity” (People v.
McMillen, 2021 IL App (1st) 190442, ¶ 17) to respond to Braun’s motion to withdraw before the
trial court granted it and dismissed his postconviction petition. The State asserts that defendant
“was both informed of Braun’s intent to withdraw, and his response was represented to the trial
court.” We review for an abuse of discretion the trial court’s decision on postconviction counsel’s
motion to withdraw. People v. Richey, 2017 IL App (3d) 150321, ¶ 20 (citing People v. Catalano,
29 Ill. 2d 197, 204 (1963)). Having applied that standard, we agree with defendant that the court
abused its discretion in this case.
¶ 16 The Post-Conviction Hearing Act sets forth a procedure by which a criminal defendant
may assert that his conviction was based on a substantial denial of his rights under the federal or
state constitutions or both. 725 ILCS 5/122-1(a)(1) (West 2020). At the second stage, indigent
defendants are entitled to appointment of postconviction counsel. Id. § 122-4. Both retained and
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2022 IL App (2d) 200279appointed counsel must supply reasonable assistance at the second stage of postconviction
proceedings. People v. Cotto, 2016 IL 119006, ¶ 42; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
¶ 17 “Reasonable assistance” does not require counsel to advance frivolous or spurious claims
on a defendant’s behalf. In People v. Greer, 212 Ill. 2d 192, 209 (2004), our supreme court held
that postconviction counsel may seek leave to withdraw if “counsel determines that [the]
defendant’s petition is frivolous and patently without merit” and counsel feels that he or she cannot
ethically continue to advance the defendant’s claims. This, the court noted, is similar to the
procedure set forth in Anders, 386 U.S. 738, which permits counsel to seek leave to withdraw on
direct appeal. Greer, 212 Ill. 2d at 209. In Kuehner, 2015 IL 117695, the court expanded on Greer
to hold that appointed counsel’s oral motion to withdraw is insufficient. Rather, counsel must file
a written motion explaining why each of the defendant’s pro se claims lacks merit. Id. ¶ 24.
¶ 18 Although there is no constitutional right to counsel in state postconviction proceedings
(Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); People v. Urzua, 2021 IL App (2d) 200231,
¶ 62), there is a through-line in the procedure set out in the United States Supreme Court’s decision
in Anders and our supreme court’s decisions in Kuehner and Greer. In Anders, the Court held that,
when an attorney appointed to represent an indigent defendant finds a case wholly frivolous on
direct appeal,
“he should so advise the [reviewing] court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to anything in the record that
might arguably support the appeal. A copy of counsel’s brief should be furnished [to] the
indigent and time allowed him to raise any points that he chooses; the court—not counsel—
then proceeds, after a full examination of all the proceedings, to decide whether the case is
wholly frivolous.” Anders, 386 U.S. at 744.
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2022 IL App (2d) 200279¶ 19 Consistent with Anders, Kuehner, and Greer, several appellate court decisions have held
that the defendant must be given notice of postconviction counsel’s motion to withdraw and “a
meaningful opportunity to respond” to the motion. McMillen, 2021 IL App (1st) 190442, ¶ 17; see
also People v. Elken, 2014 IL App (3d) 120580, ¶ 36; People v. Sherman, 101 Ill. App. 3d 1131,
1133 (1981). That is, the “defendant should be afforded the opportunity to prepare for such an
attack on his petition” by counsel “and to make any arguments in rebuttal.” Elken, 2014 IL App
(3d) 120580, ¶ 36. That did not happen here.
¶ 20 The State suggests that Braun’s statements to the court—both that he notified defendant of
his motion to withdraw and that defendant wanted new counsel in the event the motion was
granted—were sufficient to convey defendant’s thoughts on counsel’s motion. We disagree. Due
process requires notice and an opportunity to be heard before the matter is decided. See Mathews
v. Eldridge, 424 U.S. 319, 333 (1976); Valerius v. Perry, 342 Ill. 147, 148 (1930). Braun merely
voiced defendant’s general opposition to the motion to withdraw; defendant was never brought
before the court or given an opportunity to file a response to the motion. Moreover, defendant was
never given notice that on March 6, 2020, the trial court would consider his petition on the merits.
Cf. People v. Bounds, 182 Ill. 2d 1, 5 (1998) (reversing dismissal of postconviction petition where
“[t]he scheduled hearing *** was for a status report only” and “[t]here was no notice *** that
defendant’s post-conviction petition would be ruled upon”).
¶ 21 Although the parties do not address it, we note that Illinois Supreme Court Rule 13(c) (eff.
July 1, 2017) provides that, if counsel’s motion to withdraw is granted, the party would have 21
days to secure new counsel or file an appearance. Granting a motion to withdraw without a 21-day
stay violates this rule. See, e.g., In re M.B., 2019 IL App (2d) 181008, ¶ 26.
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2022 IL App (2d) 200279¶ 22 Here, the failure to give defendant “sufficient time to respond” to the motion to withdraw
“resulted in effectively depriving him of any representation at the hearing which ultimately ended
in the dismissal of his petition.” Sherman, 101 Ill. App. 3d at 1133. Accordingly, we hold that,
when postconviction counsel files a motion to withdraw, the defendant must be given an
opportunity to respond before the court can rule on counsel’s motion. See McMillen, 2021 IL App
(1st) 190442, ¶ 17. Once the defendant has had an opportunity to do so, the court can then evaluate
counsel’s motion and decide if it should be granted or denied. This procedure gives the court and
counsel the benefit of the defendant’s opinion on any issue that might have been overlooked in
counsel’s motion to withdraw. It also “obviates any opportunity for a defendant to argue that he
was blindsided by his appointed counsel’s arguments.” Elken, 2014 IL App (3d) 120580, ¶ 36.
¶ 23 Defendant also contends that Braun did not supply reasonable assistance under Rule
651(c). The crux of this claim is that, in Braun’s motion to withdraw, he stated that defendant’s
trial counsel “introduced” Jacobson’s bank records into evidence at trial to show that Jacobson
withdrew money from an ATM before he was murdered. As defendant correctly points out, the
victim’s Jacobson’s bank records were not offered or admitted at trial. The State concedes that
Braun’s statement was incorrect, but it nevertheless argues that Braun’s misstatement can be
disregarded because the bank records pertained to the largely collateral issue of when Jacobson
went to the ATM, and not when and how he was killed. As the State puts it, one mistake in
counsel’s review of a 2600-page trial record does not render counsel’s representation
unreasonable.
¶ 24 The State’s position is certainly reasonable, but as we are already remanding this case, we
need not decide the issue. Presumably, on remand, Braun will have an opportunity to correct this
misstep, just as defendant will have an opportunity, if he so chooses, to reply to Braun’s motion to
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2022 IL App (2d) 200279withdraw. We hasten to add that nothing we have said should be construed as an opinion on the
merits of Braun’s motion or on defendant’s postconviction petition. Those are matters for the trial
court to decide on remand.
¶ 25 We close with one final observation. Braun was appointed as defendant’s postconviction
counsel in July 2014 and did not move to withdraw until January 2020. That means that it took 5½
years before Braun made the decision that he could no longer carry on as defendant’s
postconviction counsel. That delay is inexplicable, particularly in light of the fact that Braun’s
motion to withdraw asserts that almost all of defendant’s postconviction claims are contradicted
by the record on direct appeal. At oral argument, we asked counsel for the State if she could see
any reason for such a delay, and, to her credit, she replied that she could not. We thank counsel for
her candor.
¶ 26 It is often pointed out that the standard of “reasonable assistance” is less rigorous than the
constitutional guarantee of “effective assistance” as described in Strickland v. Washington, 466
U.S. 668 (1984), and Anders. That said, it is difficult to reconcile either standard for evaluating
counsel’s performance with the glacial pace of postconviction litigation in this case. Recall that it
took the original trial court judge less than 90 days to review the record and make a determination
on the merits of defendant’s claims at the first stage. While postconviction counsel is not on a
similar deadline, we do not think it is asking too much for counsel to seasonably arrive at the
conclusion that a case has so little merit that he or she cannot ethically continue to represent the
defendant and to inform the defendant and the court accordingly.
¶ 27 III. CONCLUSION
¶ 28 The order granting Braun leave to withdraw and dismissing defendant’s postconviction
petition is vacated, and this cause is remanded for further proceedings consistent with this opinion.
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2022 IL App (2d) 200279¶ 29 Vacated and remanded.
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2022 IL App (2d) 200279No. 2-20-0279
Cite as: People v. Bryant, 2022 IL App (2d) 200279Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 07-CF-
3052; the Hon. Randy Wilt, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Benjamin Wimmer, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino,
for Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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