ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Kelly, 2012 IL App (1st) 101521
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EARL KELLY, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-10-1521
Filed September 5, 2012
Held The dismissal of defendant’s amended postconviction petition alleging
(Note: This syllabus that he was denied his counsel of choice and that the trial judge lacked the
constitutes no part of constitutional authority to be a judge was reversed on the ground
the opinion of the court defendant’s counsel failed to provide the reasonable assistance required
but has been prepared of postconviction counsel and the cause was remanded for second-stage
by the Reporter of proceedings with new appointed counsel.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 92-CR-14981; the
Review Hon. Noreen Valeria-Love, Judge, presiding.
Judgment Affirmed and remanded with directions.
Counsel on Michael J. Pelletier and Jennifer L. Bontrager, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, Peter Fischer, and Janet C. Mahoney, Assistant State’s
Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE SALONE delivered the judgment of the court,
with opinion.
Justice Steele concurred in the judgment and opinion.
Justice Murphy specially concurred in the judgment, with opinion.
OPINION
¶1 Petitioner Earl Kelly appeals from the dismissal of his petition for postconviction relief
without an evidentiary hearing. For the reasons set forth below, we reverse the judgment of
the circuit court and remand for further second-stage proceedings pursuant to the Post-
Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2010).
¶2 BACKGROUND
¶3 Petitioner was arrested at about 2:20 a.m. on June 11, 1992, after Chicago police heard
gunshots, drove in the direction of the gunshots, and saw petitioner running across a street
and into a park. The officers turned on their squad car’s siren and various lights, including
spotlights, and drove over the curb and into the park. As petitioner ran, the officers saw him
throw a brown paper bag and then a shiny object which they believed was a handgun.
Petitioner stopped running, and the officers stopped their car. One of the officers handcuffed
petitioner, and the other recovered the bag and a .25-caliber handgun with two live rounds
in the magazine. The bag contained a scale and 12 packets of clumped white powder in
chunks, which later tested positive for cocaine. The total weight of the packets was 95.1
grams. A custodial search of petitioner at the police station revealed an additional 33 packets
of a white, rock-like substance and cash.
¶4 On August 9, 1995, following a jury trial, petitioner was found guilty of (1) possession
of a controlled substance with intent to deliver and (2) armed violence. Upon motion of the
State, Judge Francis Golniewicz sentenced petitioner to a term of natural life in prison
pursuant to the Habitual Criminal Act. 720 ILCS 5/33B-1 et seq. (West 1992). On appeal,
the appellate court vacated petitioner’s conviction and sentence for unlawful possession of
a controlled substance with intent to deliver and affirmed the conviction and sentence for
armed violence. People v. Kelly, No. 1-95-3835 (1997) (unpublished order under Supreme
Court Rule 23). Leave to appeal to the Illinois Supreme Court was denied on February 4,
1998. People v. Kelly, 176 Ill. 2d 584 (1998).
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¶5 Postconviction Proceedings
¶6 On July 30, 1998, petitioner filed a pro se petition for postconviction relief, arguing (1)
ineffective assistance of trial counsel and (2) the Habitual Criminal Act was unconstitutional.
On September 17, 1998, petitioner filed a pro se addendum/amendment to his petition,
alleging he was denied his right to counsel of his choice when Judge Golniewicz refused to
allow substitute private counsel to file his appearance on the day of trial.
¶7 On January 29, 1999, the circuit court appointed the public defender to represent
petitioner on the petition.
¶8 Less than a month later, on February 11, 1999, petitioner filed a pro se motion for leave
to file an amended or second postconviction petition, along with an amended petition. The
trial court never ruled on the motion for leave to file. The petition itself advanced a number
of claims, including that petitioner was denied his right to counsel of his choice.
¶9 More than two years later, on June 25, 2001, appointed postconviction counsel filed a
three-page “Partial Supplemental Post-Conviction Petition” arguing that petitioner’s natural
life sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).
On June 9, 2003, the State filed a motion to dismiss this claim, citing People v. De La Paz,
204 Ill. 2d 426 (2003), which held that Apprendi did not apply retroactively to criminal cases
where direct appeals were exhausted before Apprendi was decided. Here, the Illinois
Supreme Court denied petitioner’s petition for leave to appeal on February 4, 1998, long
before Apprendi was decided on June 26, 2000.
¶ 10 In summer 2003, the public defender apparently was granted leave to withdraw from the
case, and petitioner retained a private attorney to represent him.
¶ 11 In June 2007 petitioner filed a pro se petition for writ of habeas corpus alleging, inter
alia, that he was improperly incarcerated because Judge Golniewicz, who presided over his
trial, was ineligible to serve as a judge. Attached to the petition were excerpts from a
November 15, 2004, decision of the Illinois Courts Commission removing Golniewicz from
the bench. That decision concluded, in relevant part:
“Respondent used deception to get elected. He was living in [suburban] Riverside, but
used his parents’ address [in Chicago] to run for election because he had a much greater
chance of winning an election using that address. Respondent actively concealed his true
permanent abode.” In re Golniewicz, No. 02 CC 1, slip op. at 31 (Ill. Ct. Comm’n Nov.
15, 2004).
¶ 12 On September 24, 2007, more than four years after petitioner retained private counsel,
petitioner filed a motion for appointment of new counsel, complaining, inter alia, that his
private counsel had neither visited him nor “filed any motions or amended petitions on the
petitioner’s behalf.” On the same day, petitioner filed a pro se motion for leave to file a
second supplemental postconviction petition, along with that petition. The court did not rule
on the motion for leave to file. The pro se petition alleged, inter alia, that petitioner’s trial
counsel was ineffective for failing to inform the circuit court that she was not prepared for
trial on the date the jury was selected (August 8, 1995). Attached to the petition was an
affidavit from petitioner’s trial counsel, an assistant public defender, stating that private
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counsel attempted to appear on petitioner’s behalf but needed to request a short continuance
prior to the commencement of a jury trial. Petitioner’s trial counsel further stated that Judge
Golniewicz would not allow the private attorney to file his appearance but, rather, insisted
that petitioner proceed to trial with the Office of the Public Defender as counsel. Also
attached to the petition was a document titled “Affidavit” from attorney Alexander Salerno
stating he asked Judge Golniewicz for leave to file his appearance on petitioner’s behalf and
requested a 30-day continuance to prepare for trial. Salerno stated the judge refused to allow
him to file his appearance unless he agreed to try the case that day, which he could not do.
Salerno also stated that petitioner’s trial counsel told him she was not ready for trial either
and would be asking for a continuance. The Salerno document was not notarized.
¶ 13 On April 4, 2008, petitioner’s privately retained postconviction counsel responded to
petitioner’s previous motion for appointment of new counsel. Private counsel acknowledged
he had not visited petitioner, and had not filed any motions or amended petitions on
petitioner’s behalf. Counsel asserted that visits to petitioner were unnecessary, and the delay
was attributable to the difficulty of the issues petitioner raised. Counsel stated he would
“proceed more diligently.”
¶ 14 On May 9, 2008, private counsel adopted the habeas pleading filed by petitioner and
informed the court that petitioner wanted the habeas petition and the postconviction petition
to proceed together. Counsel also filed an amended postconviction petition in which he
adopted, and attached as a group exhibit, petitioner’s previously filed pro se postconviction
pleadings. Counsel also made several specific allegations, some of which were similar to, or
drawn from, allegations previously made by petitioner. Included were the claim that
petitioner was denied his right to counsel of his choice, a due process claim arising from
Judge Golniewicz’s removal from the bench for falsifying information about his
qualifications, and a claim that Judge Golniewicz’s actions were “invalid” because he was
never eligible to be a judge. On August 14, 2008, the State filed an amended motion to
dismiss the pro se and amended petitions for postconviction relief.
¶ 15 On July 10, 2009, petitioner’s privately retained counsel filed a third amended
postconviction petition adopting petitioner’s claim that his constitutional rights were denied
when the circuit court denied his motion to dismiss his indictment. On August 7, 2009, the
State moved to dismiss the third amended petition.
¶ 16 On January 21, 2010, petitioner filed a motion asking that his private counsel be removed
and that new counsel be appointed. Petitioner complained that his private counsel would not
communicate with him and had delayed the proceedings. Petitioner stated he “no longer has
confidence in [private counsel], or trust in [him], where petitioner’s case has been
inordinately delayed for 11½ years.”
¶ 17 On March 5, 2010, petitioner’s private counsel informed the court that he had a
discussion with petitioner, who “is very annoyed with me because he says I didn’t
communicate with him and I was delayed in doing things and I was.” Counsel outlined his
medical issues to the court, including a six-month hospitalization in 2009 resulting from a
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heart attack and Legionnaires’ disease.1 Following his discussion with private counsel,
petitioner acknowledged to the court that he wanted him to continue representing him.
¶ 18 On March 17, 2010, petitioner’s privately retained counsel filed a Rule 651(c) (Ill. S. Ct.
R. 651(c) (eff. Dec. 1, 1984)) certificate stating he had read the trial transcripts,
communicated with petitioner, and amended petitioner’s postconviction petition.
¶ 19 On May 21, 2010, the case came before the circuit court on the State’s motion to dismiss.
At one point, petitioner’s counsel asked for clarification as to whether petitioner’s petition
was at the first stage, the second stage, or the third stage of postconviction proceedings. The
State confirmed that the case was at the second stage. The judge entertained arguments on
the State’s motion to dismiss. In his argument, petitioner’s counsel maintained that the first-
stage frivolousness standard applied at the second stage as well. The State corrected
counsel’s misstatement of the law, noting that the petitioner’s burden at the second stage is
to show a substantial violation of his rights. After hearing arguments, the court granted the
State’s motion to dismiss. Petitioner filed a timely notice of appeal.
¶ 20 ANALYSIS
¶ 21 The Post-Conviction Hearing Act (Act) provides a statutory remedy to criminal
defendants who claim that substantial violations of their constitutional rights occurred at
trial. People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The Act is not a substitute for an
appeal but, rather, is a collateral attack on a final judgment. People v. Ruiz, 132 Ill. 2d 1, 9
(1989). Thus, where a petitioner has previously taken an appeal from a judgment of
conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of res
judicata, postconviction review of all issues actually decided by the reviewing court, and any
other claims that could have been presented to the reviewing court will be deemed waived.
People v. Neal, 142 Ill. 2d 140, 146 (1990).
¶ 22 Under the Act, postconviction proceedings may consist of as many as three stages.
People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the circuit court must
independently determine, within 90 days of the petition’s filing, whether it is frivolous or is
patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009); 725 ILCS 5/122-2.1(a)(2)
(West 2010). At this point, the Act does not contemplate any type of responsive pleading by
the State. People v. Coleman, 183 Ill. 2d 366, 379 (1998). If the circuit court finds that the
petition is not frivolous or patently without merit, or if the court does not take action on the
petition within 90 days of its filing, the proceedings move to the second stage, where counsel
may be appointed to an indigent defendant, and the State either answers or moves to dismiss
the petition. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001); Coleman, 183 Ill. 2d at 379;
725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2010). At this stage, the circuit court must
determine whether the petition and any accompanying documentation make a substantial
showing of a constitutional violation. If no such showing is made, the petition is dismissed.
Edwards, 197 Ill. 2d at 246. The dismissal of a petition at the second stage, without an
1
In its brief to this court, the State acknowledges private counsel “was ill and in and out of
the hospital throughout much of 2008, 2009, and 2010.”
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evidentiary hearing, is reviewed de novo. Coleman, 183 Ill. 2d at 387-89; Pendleton, 223 Ill.
2d at 473. If a substantial showing of a constitutional violation is set forth at the second
stage, the petition advances to the third stage, where the circuit court conducts an evidentiary
hearing involving fact-finding and credibility determinations. 725 ILCS 5/122-6 (West
2006); Edwards, 197 Ill. 2d at 246; Pendleton, 223 Ill. 2d at 473.
¶ 23 Before this court, petitioner advances three arguments. First, he claims he was denied his
sixth amendment right to counsel of his choice when Judge Golniewicz refused to allow
attorney Alexander Salerno to appear on petitioner’s behalf unless Salerno agreed to try the
case that same day. Petitioner’s appellate attorney failed to raise this issue on appeal, which
petitioner maintains was ineffective assistance of appellate counsel. Petitioner points to
United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), which held that the “erroneous
deprivation of the right to counsel of choice *** unquestionably qualifies as ‘structural
error.’ ” (Internal quotation marks omitted.) Petitioner argues he made a substantial showing
of ineffective assistance of appellate counsel, and we should reverse the dismissal of his
postconviction petition and remand for a new trial or, in the alternative, an evidentiary
hearing.
¶ 24 Petitioner next argues his constitutional rights were violated because Judge Golniewicz,
who presided over petitioner’s trial, was elected in violation of the Illinois Constitution’s
residency requirement. Petitioner asserts Golniewicz falsified his application to be placed on
the ballot for the tenth judicial subcircuit, claiming to live in that subcircuit when he did not.
The Illinois Constitution provides, in pertinent part: “No person shall be eligible to be a
Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of
this State, and a resident of the unit which selects him.” Ill. Const. 1970, art. VI, § 11. In
2004, the Illinois Courts Commission removed Golniewicz from the bench, concluding, in
relevant part, that he used deception to get elected. “He was living in [suburban] Riverside,
but used his parents’ address [in Chicago] to run for election because he had a much greater
chance of winning an election using that address.” Golniewicz, No. 02 CC 1, slip op. at 31.
¶ 25 Petitioner contends Golniewicz was not actually a judge under the Illinois constitution,
and argues he thus made a substantial showing that he was deprived of his right to a fair trial
before a properly constituted tribunal. According to petitioner, we should reverse the
dismissal of his postconviction petition and remand for a new trial or, at a minimum, an
evidentiary hearing. Alternatively, petitioner argues he made a substantial showing that
Golniewicz’s lack of authority rendered petitioner’s conviction and sentence void and,
therefore, we should vacate the conviction and sentence and remand for a new trial.
¶ 26 Finally, petitioner argues his postconviction counsel failed to provide the reasonable level
of assistance required under the Act. Petitioner notes, for example, that nearly 12 years
elapsed from July 30, 1998, when he filed his pro se postconviction petition, until May 21,
2010, when the circuit court dismissed his amended petition. During that time, private
counsel, who was retained in 2003, filed nothing on petitioner’s behalf until 2008. Even then,
according to petitioner, the amended petition counsel filed did not properly shape and
support petitioner’s claims for presentation to the court. Petitioner argues we should reverse
the dismissal of his postconviction petition and remand for further second stage proceedings
with competent counsel.
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¶ 27 Our first task in considering these claims is to determine the proper order in which to
address them. The first two claims–pertaining to Judge Golniewicz and to petitioner’s right
to counsel of his choice–are constitutional, while the third, involving the assistance provided
by postconviction counsel, is not. It is well settled that a court should not consider a
constitutional question if the case can be decided on other grounds. People v. Brown, 225 Ill.
2d 188, 200 (2007). “If a court can resolve a case on nonconstitutional grounds, it should do
so.” Id. (citing People v. Lee, 214 Ill. 2d 476, 482 (2005)). “Constitutional issues should be
reached only as a last resort.” Brown, 225 Ill. 2d at 200 (citing In re E.H., 224 Ill. 2d 172,
178 (2006)). With these principles in mind, we turn first to petitioner’s claim that
postconviction counsel failed to provide reasonable assistance.
¶ 28 There is no constitutional right to counsel in postconviction proceedings. People v.
Moore, 189 Ill. 2d 521, 541 (2000). Because the right to counsel in such proceedings is
wholly statutory (see 725 ILCS 5/122-4 (West 2010)), petitioners are entitled only to the
level of assistance provided by the Act, which has been determined to be a “ ‘reasonable
level of assistance.’ ” People v. Turner, 187 Ill. 2d 406, 410 (1999) (quoting People v.
Owens, 139 Ill. 2d 351, 364 (1990)). To that end, Illinois Supreme Court Rule 651(c) (eff.
Dec. 1, 1984) requires that the record in postconviction proceedings demonstrate that counsel
“has consulted with petitioner either by mail or in person to ascertain his contentions of
deprivation of constitutional rights, has examined the record of the proceedings at the trial,
and has made any amendments to the petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” Rule 651(c) also provides for postconviction
counsel to file a certificate verifying that counsel has complied with these requirements.
Moore, 189 Ill. 2d at 541.
¶ 29 In arguing that his postconviction counsel failed to provide reasonable assistance,
petitioner points first to his appointed counsel, who filed only one document on petitioner’s
behalf, a “partial” supplemental petition asserting a violation of Apprendi v. New Jersey, 530
U.S. 466 (2000). Petitioner contends this issue had no merit, given that Apprendi expressly
excluded prior convictions from its holding. Id. at 490 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). Moreover,
the State’s subsequent motion to dismiss the Apprendi claim cited People v. De La Paz, 204
Ill. 2d 426 (2003), which held that Apprendi did not apply retroactively to criminal cases
where direct appeals were exhausted before Apprendi was decided. Here, the Illinois
Supreme Court denied petitioner’s petition for leave to appeal on February 4, 1998, long
before Apprendi was decided on June 26, 2000.
¶ 30 Petitioner also challenges the assistance provided by his privately retained postconviction
counsel. In 2008, counsel filed an amended postconviction petition which adopted, as a
group exhibit, petitioner’s previously filed pro se postconviction pleadings. Counsel also
made several specific allegations, including some which were similar to, or drawn from,
allegations previously made by petitioner. Included were the claim that petitioner was denied
his right to counsel of his choice, a due process claim arising from Judge Golniewicz’s
removal from the bench for falsifying information about his qualifications, and a claim that
Judge Golniewicz’s actions were “invalid” because he was never eligible to be a judge.
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¶ 31 With regard to the counsel-of-choice claim, petitioner argues his private counsel failed
to shape this allegation into an appropriate form for presentation to the court, as required
under Rule 651(c) (see People v. Lyons, 46 Ill. 2d 172, 174-75 (1970)). In private counsel’s
amended postconviction petition, the counsel-of-choice claim, which consisted of one six-
line paragraph, cited People v. Green, 42 Ill. 2d 555 (1969), a three-page Illinois decision
reversing the defendant’s conviction, where the defendant argued he was deprived of his
constitutional right to counsel of his choice. However, as petitioner correctly notes, counsel
failed to cite United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the controlling Supreme
Court precedent for a counsel-of-choice violation. In addition, counsel failed to attach a
notarized affidavit from Alexander Salerno, the private attorney who attempted to appear for
petitioner, relying instead on the un-notarized statement petitioner obtained on his own.
¶ 32 Petitioner similarly challenges his private counsel’s presentation of claims regarding
Judge Golniewicz, arguing that counsel failed to shape these allegations into proper form for
presentation to the court. Petitioner notes, for example, that counsel failed to attach to his
amended petition the Illinois Courts Commission decision (Golniewicz, No. 02 CC 1)
documenting Golniewicz’s misconduct and removing him from the bench. Counsel quoted
one paragraph from the Commission’s 31-page decision, but this was essentially the same
paragraph (id. at 9) cited by petitioner in his pro se petition for a writ of habeas corpus, filed
a year earlier. This paragraph, which was taken from the “Stipulated Facts” section of the
decision, consisted of citations to relevant constitutional and statutory provisions. Counsel
cited no other portions of the Commission’s decision.
¶ 33 Petitioner also points to counsel’s comments during the May 21, 2010, hearing on the
State’s motion to dismiss. Petitioner argues these comments indicated counsel “either
fundamentally misunderstood or lacked basic knowledge” of the Act. Early in the May 21
hearing, the following colloquy took place:
“PETITIONER’S COUNSEL: What stage are we at? I’m trying to clarify that.
THE COURT: We’re at a stage where I’m going to make a ruling on the State’s
motion.
PETITIONER’S COUNSEL: No. Are we at the first stage of the PC, the second stage
or the third stage?
MS. ROGALA [Assistant State’s Attorney]: Judge, we’re at the second stage. [At]
[t]he first stage the State is not involved. [At] [t]he second stage the State can either
move to dismiss or file an answer. I’ve moved to dismiss the pleadings that [petitioner]
has filed.
If you deny my motion to dismiss and grant an evidentiary hearing, then we would
move to the third stage of the proceedings.”
As petitioner correctly notes, a petition such as his, which had been pending for nearly 12
years, necessarily could not be at the first stage. See 725 ILCS 5/122-2.1(a), (b) (West 2010);
People v. Vasquez, 307 Ill. App. 3d 670, 672-73 (1999) (judge’s failure to rule on petition
within statutory 90-day time frame required that petition be advanced to second stage).
Moreover, the State could not have filed a motion to dismiss if petitioner’s petition were still
at the first stage. The State is not allowed to participate in first-stage postconviction
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proceedings. People v. Gaultney, 174 Ill. 2d 410, 419-20 (1996); 725 ILCS 5/122-5 (West
2010).
¶ 34 Later in the May 21 hearing, during counsel’s response to the State’s argument on its
motion to dismiss, counsel asserted that the frivolousness standard applicable to first-stage
proceedings applied equally to petitions at the second stage. This was incorrect. As the State
noted in response to counsel’s assertion: “The burden at the second stage is that the petitioner
must show a substantial violation of his constitutional rights. It is not whether the petition
is frivolous. That only applies at the first stage.” See People v. Coleman, 183 Ill. 2d 366,
381-82 (1998) (second-stage petitions reviewed for “substantial showing” of constitutional
violation).
¶ 35 Finally, petitioner emphasizes the nearly 12 years that elapsed between the filing of his
pro se postconviction petition on July 30, 1998, and the circuit court’s dismissal of his
amended petition on May 21, 2010. During that time, appointed counsel, who represented
petitioner for more than four years (January 29, 1999, to summer 2003), filed one document
on petitioner’s behalf, a three-page “partial” supplemental petition alleging an Apprendi
violation. Thereafter, petitioner’s privately retained counsel filed nothing on his behalf until
nearly five years later (May 2008).
¶ 36 Petitioner points to People v. Lyons, 46 Ill. 2d 172 (1970), a second-stage postconviction
case where more than a year passed between the filing of the pro se petition and the hearing
on the State’s motion to dismiss. During that time, the cause was continued six times, on
motion of petitioner’s counsel. When the matter came on for hearing on the State’s motion
to dismiss, the State answered ready, but the public defender stated he was not ready to
proceed. The court then heard the State’s argument, to which the public defender made no
reply. The motion to dismiss was allowed and the petition was dismissed. On appeal, our
supreme court reversed the judgment of the circuit court and remanded for “appointment of
new counsel and such further proceedings as may be appropriate.” Id. at 175. In reaching that
decision, the supreme court expressed concern that more than a year had passed from the
filing of the petition to the hearing on the motion. The court added that, if counsel was
unable to meet his responsibilities under Rule 651(c), “then new counsel should have been
appointed so that the cause could effectively proceed to disposition.” Id.
¶ 37 Petitioner notes that in Lyons, the delay was a little more than a year. Here, he argues, the
delay of nearly 12 years “appears all the more egregious.”
¶ 38 In response to this argument, the State asserts petitioner “furiously amended and added
claims to the postconviction proceedings despite his representation by counsel, contributing
greatly to the delay in the conclusion of the postconviction proceedings.” According to the
State, the record “demonstrates that postconviction counsels provided reasonable
representation[ ] given defendant’s constant interference with and filings made in the
postconviction proceedings.” Petitioner counters that the State does not explain how
petitioner’s pro se filings caused delay or why petitioner “should have sat idly by while
counsel did nothing to advance his claims.”
¶ 39 The State argues, in addition, that petitioner actually benefitted from the delay in the
proceedings. According to the State, it was this delay which enabled petitioner to present an
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Apprendi claim and a claim regarding Golniewicz as part of petitioner’s original
postconviction proceedings, even though neither of these claims was ripe in 1998 when
petitioner filed his initial pro se petition. In this way, the State asserts, petitioner was able
to avoid “the hurdles he would have encountered had he raised the issues in a successive
petition.” Petitioner’s reply to this argument is succinct: “[W]hether something positive can
be found in the dozen years of delay–a happy coincidence–does not change the question of
whether counsel complied with their responsibilities to [petitioner].” Petitioner states: “[T]he
record shows that they did not.”
¶ 40 We agree with petitioner. The nearly 12-year period that elapsed from petitioner’s filing
of his pro se petition in July 1998 to the circuit court’s dismissal of the amended petition in
May 2010 illustrates the unreasonable representation provided by both appointed and
privately retained counsel. Added to this is private counsel’s failure to shape petitioner’s
counsel-of-choice and Golniewicz claims into appropriate legal form for presentation to the
court, pursuant to Rule 651(c). Moreover, private counsel’s comments at the May 2010
hearing regarding whether the petition was at the second stage of the proceedings, and what
the proper standard of review was at that stage, indicate counsel either lacked basic
knowledge of the Act or fundamentally misunderstood it.
¶ 41 We hold that petitioner’s postconviction counsel failed to provide the reasonable level
of assistance required under the Act and Rule 651(c). We reverse the circuit court’s dismissal
of petitioner’s amended postconviction petition without an evidentiary hearing and remand
for further second-stage proceedings with the appointment of new counsel. In light of this
determination, we need not reach petitioner’s constitutional claims pertaining to Judge
Golniewicz or to petitioner’s right to counsel of his choice. See Brown, 225 Ill. 2d at 200.
¶ 42 Though we render no judgment on petitioner’s constitutional claims, we make the
following observations regarding the relief petitioner sought in his Golniewicz claim, and
the State’s response to that request. The essence of petitioner’s claim was that Golniewicz
gained his seat on the bench through fraud, in violation of the Illinois Constitution, and
Golniewicz therefore lacked the constitutional authority to be a judge. His position as a judge
was itself invalid. Petitioner argues, inter alia, that his conviction and sentence therefore are
void, and we should vacate them and remand for a new trial. The State cited a number of
reasons for rejecting this claim, including the “drastic” nature of the relief requested.
Granting this relief, the State cautioned, would open the door to “the possibility of finding
void thousands of cases Golniewicz presided over for numerous years on collateral review.”
The State emphasized that in all those cases, the participants believed Golniewicz was a
judge and trusted in the validity of his rulings. The State warned of the “chaos” that could
result if all those decisions were declared void.
¶ 43 While the “chaos” the State predicts should certainly be avoided if at all possible, a
question nevertheless remains: Which is more drastic, granting petitioner’s requested relief,
with the possibility that a number of other rulings by Golniewicz might be voided as well,
or serving a sentence of natural life in prison which was imposed by a void judge?
¶ 44 Without equating this question with those faced by courts in the past when confronted
with weightier matters, we nevertheless note its similarity to some of those earlier dilemmas.
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An example is Vasquez v. Hillery, 474 U.S. 254 (1986), where the issue was whether the
Court should abandon the rule requiring reversal of the conviction of any defendant indicted
by a grand jury from which members of his own race were systematically excluded. Id. at
255. The petitioner, the warden of San Quentin State Prison, argued that discrimination in
the grand jury amounted to harmless error, where the evidence against the respondent was
overwhelming, and his conviction, after a fair trial, purged any taint attributable to the
indictment process. The petitioner added that “requiring a State to retry a defendant,
sometimes years later, imposes on it an unduly harsh penalty for a constitutional defect
bearing no relation to the fundamental fairness of the trial.” Id. at 262.
¶ 45 Against the potential for imposing such an “unduly harsh penalty,” the Court answered
that “intentional discrimination in the selection of grand jurors is a grave constitutional
trespass, possible only under color of state authority, and wholly within the power of the
State to prevent.” Id. The Court rejected the request to abandon the rule of reversal,
concluding: “The overriding imperative to eliminate this systemic flaw in the charging
process, as well as the difficulty of assessing its effect on any given defendant, requires our
continued adherence to a rule of mandatory reversal.” Id. at 264. See also, e.g., Gideon v.
Wainwright, 372 U.S. 335, 344 (1963) (confirming right of indigent noncapital defendant to
appointment of counsel; “any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him”).
¶ 46 Finally, we note that a possible answer to the State’s articulated “chaos” problem might
lie in increased efforts at deterring the kind of misconduct Golniewicz engaged in, which
efforts could result in fewer potentialities for such chaos. While the Illinois Courts
Commission removed him from the bench in 2004, there is, according to the State, no public
record of discipline or any proceedings instituted by the Illinois Attorney Registration and
Disciplinary Commission against Golniewicz, and he remains active and authorized to
practice law in Illinois. In our view, if Golniewicz’s misconduct was such that it posed a
threat of possible “chaos,” then perhaps it warranted a more severe penalty than was imposed
here.
¶ 47 CONCLUSION
¶ 48 We reverse the dismissal of petitioner’s amended postconviction petition without an
evidentiary hearing and remand to the circuit court of Cook County for further second-stage
proceedings with the appointment of new counsel.
¶ 49 Affirmed and remanded with directions.
¶ 50 JUSTICE MURPHY, specially concurring.
¶ 51 I concur in the court’s decision, but write separately to state that because I agree with the
court that we need not address petitioner’s constitutional claims, I choose not to comment
on the relief petitioner has sought in his constitutional claim pertaining to Judge Golniewicz
or join in the court’s observations regarding such relief.
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