People v. Cotto

2016 IL 119006

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 119006)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JESUS
COTTO, Appellant.

Opinion filed May 19, 2016.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.

OPINION

¶1 This appeal asks this court to decide if every postconviction petitioner
represented by counsel is entitled to a reasonable level of assistance from counsel
after first-stage proceedings, regardless of whether counsel was appointed or
privately retained. The appellate court is split on the issue. Compare People v.
Csaszar, 2013 IL App (1st) 100467, ¶ 25 (reasonable level of assistance standard
does not apply to privately retained counsel), with People v. Anguiano, 2013 IL
App (1st) 113458, ¶ 31 (reasonable level of assistance standard applicable to both
retained and appointed counsel).
¶2 The circuit court granted the State’s motion to dismiss defendant’s
postconviction petition, and a divided appellate court affirmed. 2015 IL App (1st)
123489, ¶ 13. For the reasons that follow, we conclude that the reasonable level of
assistance standard applies to both retained and appointed postconviction counsel.
We reject the appellate court’s contrary conclusion but affirm its judgment on an
alternative basis.

¶3 BACKGROUND

¶4 Following a bench trial in 2008, defendant was found guilty of armed robbery.
Based on defendant’s prior felony convictions, the Cook County circuit court
sentenced him as a habitual criminal to natural life imprisonment.

¶5 At defendant’s trial, the State presented the testimony of 14-year-old
Guadalupe Cardenas and 14-year-old Kelvyn Negron. On May 7, 2008, Cardenas,
Negron, and Cardenas’s younger sister were walking home from school when
defendant exited an alley and approached them. Defendant grabbed Negron in a
“choke hold” and demanded his personal belongings. As defendant and Negron
struggled, Cardenas attempted to pull Negron away from defendant. Defendant
threatened Cardenas with a gun from his sleeve. Defendant ripped two gold chains
off Negron’s neck and then ran to a nearby parked car. Cardenas memorized the
license plate of defendant’s vehicle and provided police with that information.

¶6 Ultimately, defendant was apprehended by police officers based on the victims’
descriptions of their assailant and his vehicle. Cardenas and Negron identified
defendant from a police lineup. Defendant confessed to taking the gold chains from
Negron but denied possessing a gun during the robbery. Instead, defendant claimed
he had a piece of black rubber tubing inside his sleeve.

¶7 The trial court found defendant guilty of armed robbery. Based on defendant’s
prior Class X felony convictions for armed robbery and aggravated vehicular
hijacking with a weapon, he was sentenced as a habitual criminal to natural life
imprisonment. On direct appeal, the appellate court affirmed defendant’s
conviction and sentence. People v. Cotto, No. 1-08-3031 (June 3, 2009)
(unpublished order under Supreme Court Rule 23).

¶8 On September 28, 2011, defendant, through privately retained counsel, filed a
postconviction petition. That petition is the subject of the instant appeal.
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¶9 In the postconviction petition, defendant claimed he was denied his due process
rights when the trial court failed to explain his right to substitution of judge.
Defendant also raised numerous claims of ineffective assistance of trial and
appellate counsel. Specifically, defendant alleged that his trial counsel was
ineffective for failing to: (1) discuss the case and defendant’s criminal background
with him and his family members; (2) conduct an independent investigation into
the underlying criminal incident; (3) adequately prepare defendant for trial;
(4) speak to other witnesses; (5) challenge the reliability of the victims’
identification of defendant; (6) present expert testimony on gun-barrel diameters to
challenge the veracity of the victims’ testimony that defendant possessed a gun;
(7) request a hearing on natural-life sentencing; and (8) properly prepare defendant
for the sentencing hearing, including obtaining mitigation material. Defendant also
alleged trial counsel was ineffective for soliciting details of defendant’s criminal
background from him during his direct testimony and asking defendant to
“basically lie about having a rubber tube.”

¶ 10 Defendant’s postconviction petition further alleged that his trial and appellate
counsel were ineffective for: (1) “failing to notice, argue, preserve, and raise the
procedural error issue of not receiving adequate notice of [the] government’s
request for natural life” and (2) failing to provide defendant with notice of the
appellate court’s decision within 30 days to preserve his right to appeal.

¶ 11 In support of his petition, defendant attached more than 100 pages of court
transcripts from his trial and various pretrial and posttrial hearings. Defendant also
attached affidavits from his brother and mother, who averred that defendant’s
counsel failed to communicate with them throughout trial and appeal and failed to
inform them about defendant’s conviction and the appellate court’s decision until
more than 30 days had lapsed. Lastly, defendant attached his own affidavit
corroborating the allegations in his petition and a copy of an envelope from his
counsel addressed to defendant’s mother, postmarked September 4, 2009.

¶ 12 The trial court advanced defendant’s petition to second-stage proceedings. On
March 30, 2012, the State filed a motion to dismiss the petition. The State argued
that the petition was not timely filed and that defendant failed to allege the untimely
filing was not due to his culpable negligence. The State also argued that
defendant’s substantive claims were barred by res judicata and waiver and
consisted primarily of unsupported, conclusory allegations. The State further
asserted that none of defendant’s claims made a substantial showing of a
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 constitutional violation, and, therefore, defendant was not entitled to an evidentiary
hearing.

¶ 13 On August 17, 2012, defendant’s postconviction counsel filed a response to the
State’s motion, arguing that the petition was untimely filed because trial counsel
failed to inform defendant about the appellate court’s June 3, 2009, decision. In
support, defendant alleged that the attached envelope, addressed to his mother and
postmarked September 4, 2009, proved that the notice of appeal was mailed to his
mother and not to defendant. Accordingly, defendant alleged that the “petition
establishes clear facts that suggest the delay was not due to defendant’s culpable
negligence.”

¶ 14 On November 2, 2012, the circuit court held a hearing on defendant’s petition,
and the parties presented extensive arguments on the substantive claims in the
petition. Following arguments, the court allowed the State’s motion to dismiss
defendant’s petition. The court found that the record did not substantiate
defendant’s claim that his trial counsel suborned perjury. The court also found that
“[t]he decisions made by [trial counsel] in the course of the trial appear to have
been within that range of [a] lawyer’s decisions and judgments which *** certainly
do not rise to the level of deprivation of a constitutional right under the Sixth
Amendment.” The court determined it was clear from the record that defendant was
apprised of his eligibility for a natural life sentence. Relevant to the issue in this
appeal, the trial court did not reference the timeliness of defendant’s petition or
otherwise indicate that the dismissal was based on the petition’s untimely filing.

¶ 15 On appeal, defendant argued solely that his privately retained postconviction
counsel did not provide him with the requisite “reasonable level of assistance”
during the second-stage proceedings because counsel failed to contest the State’s
assertion that defendant’s petition was untimely based on his culpable negligence.
A majority of the appellate court rejected defendant’s argument and affirmed the
circuit court’s dismissal of his postconviction petition. 2015 IL App (1st) 123489,
¶ 13.

¶ 16 Relying on People v. Csaszar, 2013 IL App (1st) 100467, the appellate court
majority concluded that defendant’s claim failed because only pro se petitioners
are entitled to a reasonable level of assistance in postconviction proceedings and
defendant hired private counsel to file his postconviction petition. 2015 IL App
(1st) 123489, ¶ 10. Citing Csaszar, the majority explained that “although a pro se

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 defendant had a right to reasonable assistance from appointed counsel, neither the
Act nor case law supported the claim that the State was required to provide
reasonable assistance of counsel for any petitioner able to hire his own
postconviction counsel.” 2015 IL App (1st) 123489, ¶ 10 (citing Csaszar, 2013 IL
App (1st) 100467, ¶¶ 18, 25).

¶ 17 The appellate majority acknowledged the contrary conclusion reached in
People v. Anguiano, 2013 IL App (1st) 113458, a decision that determined the
Post-Conviction Hearing Act requires a reasonable level of assistance from all
postconviction counsel, appointed and privately retained. The majority, however,
declined to follow Anguiano and “continue[d] to find the reasoning in Csaszar
persuasive.” 2015 IL App (1st) 123489, ¶ 11.

¶ 18 Alternatively, the majority explained that even under Anguiano, it would affirm
the dismissal of defendant’s petition. The majority found that defendant’s retained
counsel provided reasonable assistance when counsel recognized the procedural
hurdle of untimeliness and argued that defendant was not culpably negligent for the
late filing. The majority also observed that defendant “failed to explain what
additional steps counsel should have taken to overcome the late filing, and it
appears to have been the best option available.” 2015 IL App (1st) 123489, ¶ 12.

¶ 19 The dissenting justice agreed with the rationale from Anguiano. Applying
Anguiano, the dissent believed that postconviction counsel failed to provide a
reasonable level of assistance in explaining the untimeliness of defendant’s
petition. 2015 IL App (1st) 123489, ¶¶ 17-19 (Pucinski, P.J., dissenting).

¶ 20 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan.
1, 2015).

¶ 21 ANALYSIS

¶ 22 On appeal, defendant argues that his privately retained postconviction counsel
failed to provide him with a reasonable level of assistance “by failing to adequately
contest the State’s assertion that he was culpably negligent in filing his petition
late.” Defendant acknowledges the split of appellate authority on the issue of
whether retained counsel must be held to the same “reasonable level of assistance
standard” applicable to appointed counsel. Defendant urges this court to adopt the

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 reasoning of Anguiano, holding that both retained and appointed counsel must
provide reasonable assistance.

¶ 23 In response, the State agrees with defendant that all postconviction petitioners
are entitled to reasonable assistance from their counsel, regardless of whether
counsel is appointed or retained. The State argues, however, that defendant was
provided with the requisite reasonable level of assistance in this case. The State
contends that defendant’s postconviction counsel acted reasonably by offering an
explanation for the untimely filing of defendant’s petition. Moreover, the State
notes that the circuit court did not reference the late filing of defendant’s petition
when it granted the State’s motion to dismiss.

¶ 24 The parties’ respective arguments present questions of law that we review
de novo. People v. Clemons, 2012 IL 107821, ¶ 8. This court also reviews de novo
the dismissal of a postconviction petition without an evidentiary hearing. People v.
Hall, 217 Ill. 2d 324, 334 (2005).

¶ 25 The primary issue in this appeal is whether postconviction petitioners who
retain private counsel are entitled to a reasonable level of assistance, the same level
of assistance guaranteed to pro se petitioners with appointed counsel after a
petition advances from first-stage proceedings under the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq. (West 2010)). As this case demonstrates, the
appellate court is split on the issue.

¶ 26 Initially, we summarize the familiar procedural framework of the Act. 725
ILCS 5/122-1 et seq. (West 2010). The Act provides a method for an individual
subject to a criminal sentence to challenge a conviction by alleging it was the result
of a substantial denial of federal or state constitutional rights, or both. 725 ILCS
5/122-1 et seq. (West 2010). The Act provides a three-stage process for
adjudicating petitions. People v. Hommerson, 2014 IL 115638, ¶ 7. At the first
stage, the circuit court determines whether the petition is “frivolous or is patently
without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). If the petition is not
dismissed at first-stage proceedings, it advances to the second stage. Hommerson,
2014 IL 115638, ¶ 7.

¶ 27 During second-stage proceedings, the court may appoint counsel for an
indigent defendant, who may amend the petition as necessary, and the State may
file a motion to dismiss or an answer to the petition. 725 ILCS 5/122-4, 122-5
(West 2010). If the court appoints counsel at the second stage, appointed counsel is
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 required to file a certificate showing compliance with Illinois Supreme Court Rule
651(c), namely, stating that appointed counsel has consulted with the defendant,
examined the record of trial proceedings, and made any necessary amendments. Ill.
S. Ct. R. 651(c) (eff. Feb. 6, 2013); see also People v. Turner, 187 Ill. 2d 406, 410
(1999) (noting that “Supreme Court Rule 651(c) outlines the specific duties of
appointed counsel in post-conviction proceedings”).

¶ 28 At the conclusion of the second stage, the court must determine whether the
petition and any accompanying documentation make a substantial showing of a
constitutional violation. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001). If not,
the petition may be dismissed. Edwards, 197 Ill. 2d at 246. If the requisite showing
is made, however, the petition advances to the third stage, and an evidentiary
hearing is held. Edwards, 197 Ill. 2d at 246.

¶ 29 Relevant to the controversy in this case, it is settled that there is no
constitutional right to assistance of counsel during postconviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Johnson v. Avery, 393 U.S. 483,
487-88 (1969). Accordingly, this court has explained that “[t]he right to assistance
of counsel in postconviction proceedings is a matter of legislative grace, and a
defendant is guaranteed only the level of assistance provided by the
Post-Conviction Hearing Act.” People v. Hardin, 217 Ill. 2d 289, 299 (2005).

¶ 30 This court has concluded that the Act provides a postconviction petitioner with
“reasonable” assistance. Hardin, 217 Ill. 2d at 299; People v. Owens, 139 Ill. 2d
351, 358-59 (1990). Indeed, the reasonable assistance standard has been applicable
to Illinois postconviction proceedings for two decades. See Anguiano, 2013 IL App
(1st) 113458, ¶¶ 19-22 (detailing the development of this court’s jurisprudence on
the standards applicable to postconviction counsel’s performance).

¶ 31 This court has broadly rejected any distinction between appointed and retained
counsel for purposes of Illinois Supreme Court Rule 651(c). People v. Richmond,
188 Ill. 2d 376, 380-81 (1999). After examining the language of that rule, we
explained that “we can discern no apparent reason not to impose on retained
counsel in this case the same requirements that we impose on appointed counsel
representing a defendant who originally files a pro se post-conviction petition.”
Richmond, 188 Ill. 2d at 381.

¶ 32 This court has also required reasonable assistance from privately retained
postconviction counsel at the first and second stage of postconviction proceedings.
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 See People v. Mitchell, 189 Ill. 2d 312, 358 (2000) (reviewing retained counsel’s
performance under the reasonable assistance standard). Notably, this court has
never held that the reasonable assistance standard is inapplicable to a
postconviction defendant who retained private counsel or otherwise distinguished
between appointed and retained counsel for purposes of that standard.

¶ 33 Nonetheless, the appellate court here determined that the reasonable assistance
standard is not applicable when a defendant is represented by privately retained
counsel during second-stage proceedings. Relying on People v. Csaszar, 2013 IL
App (1st) 100467, ¶ 25, the appellate court majority concluded that retained
postconviction counsel is not required to provide a reasonable level of assistance.
2015 IL App (1st) 123489, ¶¶ 10-11.

¶ 34 In Csaszar, the defendant hired private counsel to file his postconviction
petition, and the petition was dismissed at the second stage. On direct appeal, the
defendant argued only that his retained counsel failed to provide him with
reasonable assistance. Csaszar, 2013 IL App (1st) 100467, ¶ 15.

¶ 35 Rejecting the defendant’s argument, the Csaszar court first noted that a
postconviction petitioner does not have a constitutional right to assistance of
counsel in postconviction proceedings. Csaszar, 2013 IL App (1st) 100467, ¶ 16
(citing People v. Guest, 166 Ill. 2d 381, 412 (1995)). The court in Csaszar
recognized this court’s consistent holdings that postconviction petitioners are
entitled to a reasonable level of assistance from appointed counsel under Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013). See Csaszar, 2013 IL App (1st)
100467, ¶ 16 (collecting cases). The Csaszar court concluded, however, that those
holdings guaranteed reasonable assistance only to pro se petitioners with appointed
counsel because “Rule 651(c) applies only when the petitioner files his original
postconviction petition pro se, and not when the petitioner obtains the assistance of
retained counsel.” Csaszar, 2013 IL App (1st) 100467, ¶ 16.

¶ 36 The court also rejected the defendant’s reliance on decisions this court issued
before the adoption of Rule 651(c) that guaranteed a specific level of assistance
from postconviction counsel. The court explained that those earlier decisions were
also based on concerns about the quality of representation that appointed counsel
provided to indigent defendants. Csaszar, 2013 IL App (1st) 100467, ¶ 17.
Accordingly, the court in Csaszar concluded that, because “the Act does not
require reasonable assistance of retained counsel,” the defendant failed to state a

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 cognizable claim on appeal, and it affirmed the dismissal of the defendant’s
petition. Csaszar, 2013 IL App (1st) 100467, ¶ 25.

¶ 37 In contrast, the appellate court reached the opposite conclusion in People v.
Anguiano, 2013 IL App (1st) 113458, ¶ 22, holding that both retained and
appointed counsel are required to provide a reasonable level of assistance to a
defendant in second-stage postconviction proceedings. In Anguiano, the privately
retained counsel who represented the defendant on direct appeal filed a
postconviction petition, alleging that the defendant’s trial counsel was ineffective.
The State moved to dismiss the petition on the grounds of res judicata. The trial
court agreed with the State and granted its motion to dismiss. Anguiano, 2013 IL
App (1st) 113458, ¶¶ 11-12.

¶ 38 On appeal, Anguiano argued that his retained postconviction counsel failed to
provide a reasonable level of assistance when counsel did not consult with the
defendant and raised the same issue in both his direct appeal and postconviction
petition. Anguiano, 2013 IL App (1st) 113458, ¶ 17. The court in Anguiano first
concluded that Rule 651(c) does not apply when the initial petition is filed by
retained counsel. Anguiano, 2013 IL App (1st) 113458, ¶ 25.

¶ 39 Next, the Anguiano court considered whether case law interpreting the Act
generally supported a conclusion that, at the second stage, all postconviction
petitioners have a right to reasonable assistance of counsel, whether appointed or
retained. Citing Mitchell, 189 Ill. 2d at 358, and People v. Kegel, 392 Ill. App. 3d
538, 539 (2009), the court answered that question affirmatively because both
decisions applied the reasonable assistance standard in the context of a petition
filed by retained counsel. Anguiano, 2013 IL App (1st) 113458, ¶¶ 26-28.

¶ 40 The court in Anguiano also observed that the reasonable level of assistance
standard was not subject to the same limitation of Rule 651(c) because the Act
generally requires a reasonable level of assistance and applies to all petitions,
unlike Rule 651(c). In addition, the court explained that neither the Act nor this
court has ever limited the guarantee of reasonable assistance to formerly pro se
defendants with appointed counsel. Ultimately, the court held that both appointed
and retained counsel must provide a reasonable level of assistance to
postconviction defendants at second-stage proceedings. Anguiano, 2013 IL App
(1st) 113458, ¶ 40.

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¶ 41 We agree with defendant that Anguiano best comports with this court’s
jurisprudence on the reasonable level of assistance standard. We, therefore, accept
the State’s concession on the issue. Although Rule 651(c) applies only to a
postconviction petition initially filed by a pro se defendant (Richmond, 188 Ill. 2d
at 381), this court has never conditioned the reasonable level of assistance standard
on the applicability of that rule. Indeed, this court has treated the reasonable
assistance standard as generally applying to all postconviction defendants without
reference to Rule 651(c) or between retained or appointed counsel. See, e.g.,
People v. Perkins, 229 Ill. 2d 34, 42 (2007) (stating “[t]he Act provides for a
‘reasonable’ level of assistance”). Put another way, Rule 651(c) “is merely a
vehicle for ensuring a reasonable level of assistance” (Anguiano, 2013 IL App (1st)
113458, ¶ 37) and should not be viewed as the only guarantee of reasonable
assistance in postconviction proceedings.

¶ 42 Accordingly, we find that the appellate court in this case erred when it
concluded that defendant was not entitled to reasonable assistance from his retained
counsel at second-stage proceedings. We also overrule Csaszar for reaching the
same erroneous conclusion. We hold that there is no difference between appointed
and privately retained counsel in applying the reasonable level of assistance
standard to postconviction proceedings. Both retained and appointed counsel must
provide reasonable assistance to their clients after a petition is advanced from
first-stage proceedings.

¶ 43 Next, we consider whether defendant’s privately retained counsel provided him
with a reasonable level of assistance. Although the State concedes that the appellate
court erred by concluding that defendant was not entitled to reasonable assistance
from his retained counsel, it argues that the appellate court’s judgment should be
affirmed even under that standard. The State notes the appellate court also
concluded that, “even under Anguiano,” it would affirm the dismissal of
defendant’s petition because he received reasonable assistance.

¶ 44 Defendant argues that “the sheer inadequacy” of his postconviction counsel’s
explanation on the untimeliness of the petition precluded him from prevailing on
the merits of his petition on review. Defendant notes that his petition was filed over
a year and a half late and his counsel’s only explanation relied on an envelope
showing that the appellate court’s decision was mailed to his mother on September
4, 2009. Although recognizing that the record does not reveal when postconviction
counsel was retained, defendant asserts that fact is not necessary to resolve his
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 claims. He acknowledges that the trial court did not indicate his petition was
dismissed based on its untimeliness, but he argues that the court is presumed to
follow the law.

¶ 45 As we have noted, there is no constitutional right to effective assistance of
postconviction counsel. Hardin, 217 Ill. 2d at 299. Consequently, the reasonable
level of assistance provided for by the Act is “less than that afforded by the federal
or state constitutions.” People v. Pendleton, 223 Ill. 2d 458, 472 (2006).

¶ 46 Here, defendant’s retained postconviction counsel drafted a petition with
several detailed claims of ineffective assistance by trial counsel, claims of
ineffective assistance by appellate counsel, and claims alleging a violation of
defendant’s due process rights. The petition included several supporting
attachments, including: (1) affidavits from defendant, his brother, and his mother;
(2) more than 100 pages of transcripts from the trial, pretrial hearings, and posttrial
hearings; and (3) a copy of an envelope from defendant’s counsel addressed to
defendant’s mother, postmarked September 4, 2009.

¶ 47 Defendant’s petition survived first-stage dismissal and proceeded to
second-stage proceedings. After the State filed a motion to dismiss, defendant’s
counsel filed a response rebutting the State’s claims and included an explanation
for the petition’s untimeliness.

¶ 48 At the hearing on the State’s motion to dismiss, the trial court considered
extensive arguments by both sides on the substantive claims in defendant’s
petition. Ultimately, the trial court granted the State’s motion to dismiss. After
evaluating the merits of defendant’s substantive claims, the court concluded that he
did not make the requisite substantial showing of a constitutional violation.

¶ 49 Before this court, as in the appellate court, the only error alleged by defendant is
that his retained postconviction counsel failed to explain adequately the delay in
filing his petition. Defendant does not otherwise challenge the trial court’s ruling
on the merits of his claims and, therefore, has forfeited review of those claims. See
People v. Conick, 232 Ill. 2d 132, 144 (2008) (issues not raised by postconviction
petitioner in the appellate court forfeited on review).

¶ 50 After considering the record in this case, we reject defendant’s argument that
his postconviction counsel failed to provide reasonable assistance. In our view,
defendant’s retained postconviction counsel ably discharged his duties. Notably,

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 defendant fails to explain what additional information should have been included
by counsel in regard to the timeliness issue. Nor does defendant identify when he
retained postconviction counsel in relation to the filing deadline for his petition.
More critically, the record demonstrates that defendant’s petition was not
dismissed as untimely. The trial court reviewed defendant’s claims on their merits
with no mention of the petition’s late filing.

¶ 51 Under these circumstances, we find no deficiency in postconviction counsel’s
representation. Accordingly, we conclude that defendant received the reasonable
assistance of counsel contemplated by the Act.

¶ 52 CONCLUSION

¶ 53 For these reasons, we affirm the dismissal of defendant’s postconviction
petition.

¶ 54 Appellate court judgment affirmed.

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