People v. Rooks

NOTICE
2020 IL App (5th) 170035-U NOTICE
Decision filed 01/28/20. The This order was filed under
text of this decision may be NO. 5-17-0035 Supreme Court Rule 23 and
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, ) Madison County.
)
v. ) No. 92-CF-1017
)
JEDENE RANDOLPH ROOKS, ) Honorable
) Jennifer L. Hightower,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court.
Presiding Justice Welch and Justice Overstreet concurred in the judgment.
ORDER
¶1 Held: Where appointed counsel for defendant, Jedene Randolph Rooks, failed to
ensure that the existing claims alleged by Rooks in his pro se section
2-1401 (735 ILCS 5/2-1401 (West 2010)) petition were properly presented
to the court and failed to allege available facts to overcome the applicable
two-year limitations period, we reverse the trial court’s judgment denying
the section 2-1401 petition filed by appointed counsel and remand this case
to the trial court for appointment of new counsel and further proceedings.
¶2 Defendant, Jedene Randolph Rooks (Rooks), pled guilty to unlawful possession
with intent to deliver cocaine (Ill. Rev. Stat. 1989, ch. 56½, ¶ 1401(c)(2) (now at 720
ILCS 570/401(c)(2) (West 2016))) on December 10, 1993, in exchange for a six-year
term of imprisonment that was to be served concurrently with a federal sentence. On
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January 31, 2013, Rooks filed a pro se petition for relief pursuant to section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) based upon new information
he learned after obtaining documents pursuant to a Freedom of Information Act request. 5
ILCS 140/1 et seq. (West 2010). The trial court sua sponte dismissed Rooks’s petition on
February 11, 2013, finding that the petition was untimely and otherwise did not “fall
within any category of collateral remedies that would be available to Defendant.” Rooks
appealed to this court and we vacated the dismissal because the trial court erred in
dismissing his petition less than 30 days after it was filed. People v. Rooks, No.
5-13-0102 (2014) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
Upon remand from this court, counsel was appointed to represent Rooks in late March
2015. Counsel did not initially file an amended 2-1401 petition. Instead, he filed a
petition for writ of habeas corpus. Counsel eventually withdrew that petition and filed a
2-1401 petition incorporating the same arguments from the habeas corpus petition. On
December 21, 2016, the trial court granted the State’s motion to dismiss this petition and
denied the 2-1401 petition. Rooks sought leave to proceed on a pro se basis with his
original 2-1401 petition, but the trial court disallowed this request. Rooks appeals from
the trial court’s denial of his motion for reconsideration of that order.
¶3 We have jurisdiction over this appeal pursuant to article VI, section 6 of the
Illinois Constitution and Illinois Supreme Court Rules 301 and 304(b)(3). Ill. Const.
1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 304(b)(3) (eff. Jan. 1,
1989).
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¶4 BACKGROUND
¶5 Rooks filed his pro se section 2-1401 petition for relief on January 31, 2013.
Rooks submitted numerous “newly discovered” facts stemming from his Freedom of
Information Act request. Using these new facts, Rooks then argued that the State’s
Attorney’s presentation of the evidence against him at his plea hearing was erroneous and
thus the judgment was based on an insufficient factual basis. Rooks asserted that if the
State’s Attorney had presented the true and accurate facts to the trial court, the court
could have found that the State lacked sufficient evidence to establish the elements of the
offense. Rooks also alleged that the State’s Attorney improperly withheld and/or failed to
provide this potentially exculpatory evidence from Rooks, his trial attorney, and the
court.
¶6 The trial court appointed counsel to represent Rooks in March 2015. Rooks
registered his dissatisfaction with his counsel by writing letters to the court and filing a
motion to have a different attorney appointed. According to these letters and the motion,
Rooks had not heard from his attorney except for receipt of a July 2015 letter by which
the attorney stated that he was unsure of what Rooks wanted to accomplish. The trial
court held a prehearing conference on May 20, 2016, and noted in its order that the
attorney appointed to represent Rooks indicated that he would “soon” be presenting
Rooks with a rough draft of a pleading.
¶7 On July 5, 2016, Rooks’s attorney filed a petition for writ of habeas corpus in
which he alleged that the 1993 plea deal Rooks accepted was the result of an “over-
zealous prosecution” and that he received ineffective assistance of counsel because his
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attorney had not adequately reviewed discovery or conferred with Rooks about the
offered plea deal. The theory advanced in this pleading was that the State’s charges
resulted in a meaningless conviction because Rooks served his state sentence concurrent
with his federal conviction. In other words, the conviction was meaningless because the
State would have sought consecutive sentencing if it really had intended to punish Rooks.
¶8 Rooks wrote a letter to the trial court indicating that he disagreed with the
attorney’s decision to file the petition for writ of habeas corpus and that he had not been
provided with a draft of the petition before it was filed. On August 29, 2016, the trial
court granted Rooks’s counsel 30 additional days in which to amend or adopt Rooks’s
January 31, 2013, pro se section 2-1401 petition.
¶9 On October 12, 2016, Rooks’s counsel withdrew the habeas corpus petition. The
trial court entered its order granting Rooks’s counsel an additional 45 days to amend or
adopt Rooks’s pro se petition.
¶ 10 On December 9, 2016, Rooks’s counsel filed a section 2-1401 petition. This
petition contained the identical arguments Rooks’s counsel advanced in the
habeas corpus petition. The petition contained none of the facts and arguments Rooks
had included in his pro se petition.
¶ 11 On December 15, 2016, Rooks’s appointed counsel filed his Supreme Court Rule
651(c) (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)) certificate stating that he had consulted
with Rooks by mail to ascertain his claim of deprivation of constitutional rights; that he
had examined the trial court file and report of proceedings of Rooks’s guilty plea; and
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that he had made amendments to Rooks’s pro se petition necessary for an adequate
presentation of his claims.
¶ 12 The State filed a motion to dismiss, arguing that Rooks’s section 2-1401 petition
was untimely and failed to state a cognizable claim for relief. The State also claimed that
Rooks waived all issues because he failed to seek to withdraw his plea of guilt, failed to
file a direct appeal, and/or failed to file a petition for postconviction relief.
¶ 13 On December 21, 2016, the trial court granted the motion to dismiss and denied
the 2-1401 petition. The court found that Rooks’s allegations of ineffective assistance of
trial counsel were not appropriate for section 2-1401 review because the allegations did
not challenge the factual basis for the judgment. The court also found that the petition
was untimely.
¶ 14 On January 3, 2017, Rooks filed a pro se motion to discharge counsel and to allow
him to proceed pro se. He also asked the trial court to consider his original section
2-1401 petition. The court granted Rooks’s motion to discharge his appointed counsel
and advised him of his right to appeal. Rooks filed a motion for reconsideration arguing
in part that appointed counsel failed to comply with Supreme Court Rule 651(c). The trial
court denied the defendant’s motion for reconsideration on January 25, 2017.
¶ 15 ANALYSIS
¶ 16 On appeal, Rooks raises two issues: (1) whether his due process rights were
violated when the trial court granted the State’s motion to dismiss his section 2-1401
petition without first allowing Rooks the opportunity to respond and/or before the petition
was ripe for adjudication; and (2) whether his appointed counsel’s failure to amend his
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section 2-1401 petition to allege facts that would overcome the two-year limitations
period amounted to ineffective assistance of counsel warranting reversal.
¶ 17 Section 2-1401 (735 ILCS 5/2-1401 (West 2012)) provides an extensive statutory
process to challenge final orders and judgments more than 30 days after entry. People v.
Vincent, 226 Ill. 2d 1, 14, 871 N.E.2d 17, 26-27 (2007). In order to obtain relief, the
section 2-1401 petition must set forth specific factual allegations supporting three
elements: (1) the existence of a meritorious claim or defense; (2) due diligence on the
part of the petitioner in presenting the claim or defense to the trial court; and (3) due
diligence in filing the section 2-1401 petition. In re Marriage of Callahan, 2013 IL App
(1st) 113751, ¶ 17, 984 N.E.2d 531. Although section 2-1401 is a civil remedy, the
statute applies to criminal cases as well. Vincent, 226 Ill. 2d at 7. “A section 2-1401
petition for relief from a final judgment is the forum in a criminal case in which to correct
all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and
court at the time judgment was entered, which, if then known, would have prevented its
rendition.” (Internal quotation marks omitted.) People v. Pinkonsly, 207 Ill. 2d 555, 566,
802 N.E.2d 236, 243 (2003) (quoting People v. Haynes, 192 Ill. 2d 437, 461, 737 N.E.2d
169, 182 (2000)). However, a section 2-1401 petition is not intended to provide the
petitioner with a general review of all trial errors, such as ineffective assistance of
counsel. See People v. Berland, 74 Ill. 2d 286, 314, 385 N.E.2d 649, 662 (1978);
Pinkonsly, 207 Ill. 2d at 565.
¶ 18 A section 2-1401 petition “must be filed not later than 2 years after the entry of the
order or judgment.” 735 ILCS 5/2-1401(c) (West 2012). “[W]here a section 2-1401
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petition is filed beyond two years after the judgment was entered, it cannot be
considered.” People v. Caballero, 179 Ill. 2d 205, 210-11, 688 N.E.2d 658, 660 (1997).
Courts must adhere to this two-year limitations period unless there is a clear showing that
the petitioner is under a legal disability or duress or if the grounds for relief had been
fraudulently concealed. Id. at 211; Berland, 74 Ill. 2d at 317.
¶ 19 When a trial court dismisses a petition for relief of judgment pursuant to section 2-
1401, our review is de novo. Vincent, 226 Ill. 2d at 14-17.
¶ 20 We begin with the second issue raised by Rooks because the issue is dispositive.
Furthermore, the State concedes the issue. In this case, Rooks’s appointed counsel failed
to properly amend the section 2-1401 petition to allege any set of facts that could
potentially excuse the two-year limitations period.
¶ 21 Section 2-1401 contains no guidance on the issue of the requisite level of
assistance that appointed counsel must provide to a section 2-1401 petitioner. People v.
Walker, 2018 IL App (3d) 150527, ¶ 24, 93 N.E.3d 734. The court in People v. Walker
cited to two supreme court cases that provided guidance on this issue: Tedder v. Fairman
and People v. Pinkonsly.
¶ 22 In Tedder v. Fairman, the court concluded that the level of assistance mandated
for appointed counsel in a civil action was the exercise of due diligence. Tedder v.
Fairman, 92 Ill. 2d 216, 227, 441 N.E.2d 311, 315-16 (1982). The supreme court did not
find that appointed counsel was required to provide the same level of service as required
in postconviction petition—reasonable assistance. Id. The Tedder court “ultimately
concluded that the appointed attorneys were required to help the defendants amend their
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petitions because the trial court had found that their petitions were inadequate and had
appointed counsel to address the deficient petitions.” Walker, 2018 IL App (3d) 150527,
¶ 25 (citing Tedder, 92 Ill. 2d at 226).
¶ 23 In People v. Pinkonsly, the supreme court decided that the appellate court
improperly utilized the Strickland v. Washington standard to find that appointed counsel
had been ineffective. In finding that appointed counsel provided adequate assistance, the
court noted that “[a]ssuming that the defendant was entitled to the same level of
assistance on his section 2-1401 petition as on a postconviction petition, the defendant
did not receive unreasonable assistance.” Pinkonsly, 207 Ill. 2d at 568. The Pinkonsly
court was not asked to determine the appropriate level of assistance to be provided and
therefore did not hold that “appointed counsel in a section 2-1401 proceeding must
satisfy the reasonable assistance requirements reflected in Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013).” Walker, 2018 IL App (3d) 150527, ¶ 27.
¶ 24 Although the supreme court’s “reasonable assistance” comment was dicta, the
Walker court concluded that appointed counsel failed to provide adequate assistance
under both the “reasonable assistance” and “due diligence” standards. Id. ¶ 29. Appointed
counsel in Walker believed that his only obligation was to present the claims made in the
defendant’s pro se complaint. Id. ¶ 31. The court stated that while counsel does not have
a duty to raise new or novel claims, “he does have an obligation to ensure that any
existing claims are properly presented to the court.” Id. In the context of the defendant’s
section 2-1401 petition, counsel was required to allege all available facts to overcome the
two-year limitations period. Id. As the defendant’s pro se petition had not included those
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necessary facts, the petition had been deficient on its face and appointed counsel was
required to amend the defendant’s petition. Id. ¶ 33. The court found that “[a]ppointed
counsel was, therefore, unreasonable for failing to amend the petition to allege available
facts necessary to overcome the procedural bar of timeliness.” Id. ¶ 34. The Walker court
also found that appointed counsel did not exercise due diligence because he failed to
review the transcripts from the underlying proceedings. Id. ¶ 36. The court concluded that
“[b]ecause we find appointed counsel failed to satisfy the reasonable assistance and due
diligence standards, we remand the matter for further proceedings and the appointment of
new counsel.” Id.
¶ 25 In this case, there is no dispute that appointed counsel failed to include any facts
supporting a basis for the untimely filing of the petition or to include or amend any of the
facts and arguments Rooks made in his pro se 2-1401 petition. Rooks had alleged that the
State’s Attorney assigned to the prosecution in 1992 withheld key facts and video that
would have established his innocence of the crime charged. The 2-1401 petition filed by
appointed counsel contained no reference to newly discovered facts—including the
alleged factual reason why Rooks’s petition was not timely filed. As in Walker, because
appointed counsel made no allegations in support of a late filing as was inherently
required by his appointment, his legal representation was inadequate and represented a
lack of due diligence. Walker, 2018 IL App (3d) 150527, ¶ 34 (citing People v. Perkins,
229 Ill. 2d 34, 44, 890 N.E.2d 398, 403 (2007)); Tedder, 92 Ill. 2d at 227.
¶ 26 We make no determination on the merit of Rooks’s allegations, but note that upon
remand, a newly appointed counsel may make his or her own determination. If this new
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counsel reviews the file and concludes that the claims are without merit, then he or she
cannot in good faith file an amended petition on Rooks’s behalf and must withdraw.
Walker, 2018 IL App (3d) 150527, ¶ 37 (citing People v. Shortridge, 2012 IL App (4th)
100663, ¶ 14, 964 N.E.2d 679); Ill. S. Ct. R. 137 (eff. July 1, 2013). If, however, new
counsel determines that the factual allegations may have merit, then he or she should
amend Rooks’s petition “to adequately present his pro se claims.” Walker, 2018 IL App
(3d) 150527, ¶ 37 (citing Shortridge, 2012 IL App (4th) 100663, ¶ 13).
¶ 27 We do not address the first issue Rooks raised in this appeal because of our
conclusion that this case must be reversed and remanded on Rooks’s second issue.
¶ 28 CONCLUSION
¶ 29 For the reasons stated in this order, we reverse and remand the judgment of
Madison County for further proceedings and for the appointment of new counsel.
¶ 30 Reversed and remanded with directions.
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