People v. Johnson

2018 IL 122227

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122227)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. GRANVILLE S. JOHNSON, Appellant.

Opinion filed November 29, 2018.

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

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Theis, and
Neville concurred in the judgment and opinion.

OPINION

¶1 In this case, we must decide whether a defendant who retains a private attorney
at the first stage of postconviction proceedings under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) is entitled to a reasonable level
of assistance of counsel. For the reasons that follow, we conclude in the
affirmative.
¶2 BACKGROUND

¶3 Defendant, Granville Johnson, was tried before a Champaign County jury on
two occasions for the first degree murder of Gregory Moore and attempted first
degree murder of Isaac Moore. In both trials, the juries were unable to reach a
verdict, and mistrials were declared.

¶4 Following a third trial, the jury found defendant guilty of both offenses. The
trial court sentenced defendant to consecutive terms of 53 years’ and 32 years’
imprisonment, respectively. Defendant appealed, arguing primarily that the State
failed to exercise due diligence in obtaining DNA test results and, therefore, the
trial court erred in granting an extension of the speedy-trial deadline under section
103-5(c) of the Code of Criminal Procedure (725 ILCS 5/103-5(c) (West 2008)).
The appellate court rejected this contention and affirmed defendant’s convictions.
People v. Johnson, 2012 IL App (4th) 090893-U. This court denied defendant’s
petition for leave to appeal (People v. Johnson, No. 115225 (Jan. 30, 2013)), and
the United States Supreme Court denied his petition for writ of certiorari (Johnson
v. Illinois, 571 U.S. 937___, 134 S. Ct. 358 (2013)).

¶5 In April 2014, a private attorney retained by defendant filed a postconviction
petition alleging that (1) defendant’s right to a speedy trial was violated, (2) “the
State presented incomplete evidence” to the trial court regarding the DNA testing
and the necessity for a continuance of the speedy-trial clock, and (3) trial counsel
was ineffective for failing to present this evidence to the trial court in a motion to
reconsider. The circuit court summarily dismissed the petition, finding the alleged
violation of defendant’s speedy trial rights and trial counsel’s failure to file a
motion to reconsider were matters that could have been raised on direct appeal and,
therefore, were barred by res judicata. Additionally, the court rejected defendant’s
claim of ineffective assistance on the merits. According to the circuit court,
defendant’s claim that the trial court would have reconsidered its ruling on the
State’s motion to continue for DNA testing was “speculative at best,” and there was
no probability a motion to reconsider would have changed the result. Thus, the
circuit court found trial counsel’s decision not to file a motion to reconsider
objectively reasonable under Strickland v. Washington, 466 U.S. 668 (1984).
Defendant’s attorney filed a notice of appeal from the circuit court’s summary
dismissal order on June 23, 2014.

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¶6 On July 11, 2014, defendant filed a timely pro se motion to reconsider the
dismissal of his postconviction petition and to allow for its supplement. In this
motion, defendant alleged his postconviction attorney had failed to include several
claims in his postconviction petition that defendant had requested be made part of
the petition. Defendant asserted his postconviction attorney had failed to include
claims that (1) direct appeal counsel provided ineffective assistance on the issues
raised in the postconviction petition, (2) trial and direct appeal counsel provided
ineffective assistance by failing to challenge the introduction of a witness’s police
statement as substantive evidence at trial, and (3) direct appeal counsel was
ineffective for failing to raise a double jeopardy issue raised by trial counsel.
Defendant stated in his motion that, when he spoke to his attorney about these
claims, “[c]ounsel respond[ed] in [a] way that confused [him] and then began
questioning [him] about payment.” Defendant further stated that, after receiving a
letter from his attorney “about money and why he didn’t raise ineffective
[assistance] of direct appeal counsel,” defendant “never heard from counsel again,
until [the] court dismiss[ed] [the] petition.” Defendant stated he “wanted and had
every intention of adding other meritorious issues to his petition, including but not
limited to the ones discussed in this motion.”

¶7 Because defendant’s counsel had filed a notice of appeal before defendant filed
his pro se motion to reconsider, the circuit court concluded it lacked jurisdiction
over defendant’s motion and, therefore, declined to consider it. Thereafter, the
appellate court entered an order remanding the cause in compliance with Illinois
Supreme Court Rule 606(b) (eff. July 1, 2017), to allow the circuit court to review
defendant’s motion. 1

¶8 On remand, defendant filed a pro se supplement to his motion to reconsider,
raising several additional claims he contended his postconviction attorney should
have included in the postconviction petition. The circuit court denied defendant’s
motion but did not consider the merits of any of the claims raised by defendant or
whether defendant’s attorney should have included those claims in the petition.
Instead, the court concluded the claims raised in the supplemented motion were

1
Rule 606(b) provides that, if a defendant files a timely postjudgment motion after filing a
notice of appeal, the notice of appeal shall have no effect.

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 “attempts to allege new Post-Conviction issues not previously raised in the prior
petition” and, thus, were waived.

¶9 On appeal, defendant argued the circuit court erred in refusing to consider the
additional claims of trial and direct appeal error raised in his supplemented motion
to reconsider. Defendant asserted that, because his private attorney filed the initial
postconviction petition and because he was bound by his attorney’s actions, the
circuit court should have considered whether counsel’s representation in failing to
include the claims was unreasonable. Defendant contended that, if his counsel’s
performance was unreasonable, then he should be permitted to supplement his
petition with the additional claims.

¶ 10 The appellate court rejected this argument and affirmed the circuit court’s
summary dismissal of defendant’s postconviction petition. 2017 IL App (4th)
160449. While recognizing that a defendant has the right to reasonable assistance
of counsel at the second and third stages of postconviction proceedings, the
appellate court concluded there is no such right at the initial, summary dismissal
stage. Relying on two appellate decisions that had reached the same conclusion,
People v. Kegel, 392 Ill. App. 3d 538 (2009), and People v. Garcia-Rocha, 2017 IL
App (3d) 1240754, the appellate court determined that

“(1) neither the Act nor case law indicates a prisoner sentenced to a term of
imprisonment is entitled to reasonable assistance at the first stage of
postconviction proceedings, (2) to find such an entitlement would require us to
judicially disengage the guarantee of reasonable assistance from the underlying
right to counsel at second-stage proceedings so that the former can exist
independently of the latter, and (3) awarding such an entitlement would lead to
disparate treatment among prisoners similarly situated except with regard to the
means to obtain counsel.” 2017 IL App (4th) 160449, ¶ 41.

Therefore, according to the appellate court, the circuit court had no obligation to
consider whether defendant’s attorney provided unreasonable assistance and no
obligation to consider any of the additional claims raised in defendant’s
supplemented motion to reconsider.

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¶ 11 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar.
15, 2016).

¶ 12 ANALYSIS

¶ 13 As he did in the appellate court, defendant argues here that the circuit court
erred in refusing to consider whether his privately retained attorney provided
unreasonable assistance when he failed to include additional claims in defendant’s
postconviction petition. Defendant contends that, had the circuit court examined his
attorney’s performance, the court would have concluded the performance was
unreasonable and, on that basis, would have permitted defendant to supplement his
petition with the additional claims raised in his supplemented motion to reconsider.
Defendant acknowledges this court has not previously recognized a right to
reasonable assistance of counsel at the first stage of postconviction proceedings
where a defendant retains a private attorney, but he urges us to do so now.
Accordingly, at the outset, we must determine whether a defendant who retains a
private attorney at the first stage of postconviction proceedings is entitled to a
reasonable level of assistance of counsel.

¶ 14 The Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a remedy for
incarcerated defendants who have suffered a substantial violation of their
constitutional rights at trial. Under the Act, a postconviction proceeding contains
three stages. At the first stage, the circuit court must independently review the
postconviction petition, without input from the State, and determine whether it is
“frivolous or is patently without merit.” Id. § 122-2.1(a)(2). If the court makes this
determination, the court must dismiss the petition in a written order. Id. If the
petition is not dismissed, the proceedings move to the second stage. Id.
§ 122-2.1(b).

¶ 15 At the second stage, counsel is appointed to represent the defendant, if he is
indigent (id § 122-4), and the State is permitted to file responsive pleadings (id.
§ 122-5). The circuit court must determine at this stage 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 no such showing is
made, the petition is dismissed. If, however, the petition sets forth a substantial

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 showing of a constitutional violation, it is advanced to the third stage, where the
circuit court conducts an evidentiary hearing (725 ILCS 5/122-6 (West 2010)).

¶ 16 There is no constitutional right to counsel in postconviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); People v. Moore, 189 Ill. 2d 521,
541 (2000). Thus, defendants are guaranteed only the level of assistance provided
for by the Act. People v. Flores, 153 Ill. 2d 264, 276 (1992). The Act does not
explicitly provide for any particular level of assistance. Nonetheless, this court has
long held that, at the second and third stages of postconviction proceedings,
defendants are entitled to a “reasonable” level of attorney assistance. People v.
Owens, 139 Ill. 2d 351, 358-59 (1990). Notably, this right is not limited to
appointed counsel. Privately retained attorneys must also provide a reasonable
level of assistance. People v. Cotto, 2016 IL 119006.

¶ 17 The right to reasonable assistance recognized by this court necessarily follows
from the nature and purpose of the Act. As has often been observed, the purpose of
the Act is to provide a statutory mechanism for incarcerated defendants to assert
they have been unconstitutionally deprived of their liberty. See, e.g., Albert E.
Jenner Jr., The Illinois Post-Conviction Hearing Act, 9 F.R.D. 347, 357 (1949)
(“The purpose of the Act was to provide a certain and adequate procedure by which
persons incarcerated in Illinois penal institutions can obtain a hearing *** into the
question of whether they were denied substantial constitutional rights in the
proceedings.”); People v. Pier, 51 Ill. 2d 96, 98 (1972) (the Act “was designed to
afford to the convicted an opportunity to inquire into the constitutional integrity of
the proceedings in which the judgment was entered”). This purpose distinguishes
the Act from other statutes enacted by the legislature that provide for various
remedies, such as those statutes that establish causes of action authorizing the
recovery of monetary damages. When an attorney’s deficient performance results
in the loss of a cause of action for monetary damages, the aggrieved litigant can file
a legal malpractice action to recover the loss. That is not possible for a claim that
has been lost under the Act. A legal malpractice action cannot secure the release of
a wrongfully incarcerated defendant. See, e.g., In re Estate of Powell, 2014 IL
115997, ¶ 13 (the injury in a legal malpractice action is “a pecuniary injury to an
intangible property interest”). Accordingly, the only way to ensure the purpose of
the Act is fulfilled, i.e., to ensure that criminal defendants are not deprived of
liberty in violation of their constitutional rights, is to provide some means of

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 reviewing attorney performance. Otherwise, meritorious postconviction claims
may be lost. In short, the “statute cannot perform its function” (People v. Slaughter,
39 Ill. 2d 278, 285 (1968)) without the right to some level of attorney competence.
See also, e.g., People v. Polansky, 39 Ill. 2d 84, 87 (1968) (noting the importance of
appointed counsel to furthering the “legislative purpose”).

¶ 18 The rationale for requiring a reasonable level of assistance from privately
retained counsel at the second and third stages of postconviction proceedings
applies with equal force to first stage representation. Indeed, in light of the purpose
of the Act, it would be absurd to say the legislature did not intend for privately
retained counsel to provide a reasonable level of assistance at the first stage of
postconviction proceedings. As defendant points out, Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013), which requires counsel to consult with a defendant
regarding his postconviction petition, applies only to those defendants who file
their initial petition pro se and who are appointed counsel at the second stage. Cotto
2016 IL 119006, ¶ 41. Thus, were we to hold that the Act imposes no standard of
representation whatsoever at the first stage, a privately retained attorney could
submit a wholly deficient petition, and meritorious claims could be lost. See 725
ILCS 5/122-3 (West 2010) (“Any claim of substantial denial of constitutional
rights not raised in the original or an amended petition is waived.”). We do not
think this is what the General Assembly intended.

¶ 19 The State emphasizes, however, that there is no right to have counsel appointed
at the first stage of postconviction proceedings. See, e.g., People v. Ligon, 239 Ill.
2d 94, 118 (2010). From this, the State contends “there is necessarily no right to a
particular level of assistance, ‘reasonable’ or otherwise.” We disagree. It is true the
court is not obligated to appoint counsel at the first stage of postconviction
proceedings. But it does not follow from this premise that an attorney who is
privately retained is therefore free to provide unreasonable assistance. To the
contrary, as we have explained, recognizing no level of required assistance at the
first stage of postconviction proceedings would defeat the purpose of the Act.
Further, the State’s argument misconstrues the purpose of the summary dismissal
stage. That stage is meant to save taxpayers money by not requiring the
appointment of counsel where the claims raised by the pro se defendant are
frivolous or patently without merit. See, e.g., 83rd Ill. Gen. Assem., Senate
Proceedings, May 19, 1983, at 171 (statements of Senator Sangmeister) (“the

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 purpose of this is…is not to prevent the filing of those but at least let a judge look at
it, and where on its face the petition is obviously frivolous, that to cost the taxpayer
money to have an attorney represent them, the cost of another transcript…on that
petition I think is senseless”). The summary dismissal stage is not meant to relieve
privately retained counsel, paid for by the defendant, from the obligation to provide
reasonable assistance.

¶ 20 In declining to recognize a reasonable assistance standard at the first stage of
postconviction proceedings, the appellate court below expressed concern that
imposing such a standard would lead to disparate treatment among defendants. The
court explained that a defendant “whose retained attorney filed a fatally defective
petition would be entitled to reversal of the summary dismissal of the petition if the
attorney did not provide ‘reasonable assistance.’ In contrast, an indigent defendant
with no assistance of counsel who filed a petition suffering the same defect would
have no basis for reversal.” (Internal quotation marks omitted.) 2017 IL App (4th)
160449, ¶ 37. The appellate court’s concern is misplaced.

¶ 21 At the first stage of postconviction proceedings there are no hearings, no
arguments, and no introduction of evidence. Instead, there is only a pleading, the
postconviction petition, that the circuit court must independently consider to
determine whether it is frivolous or patently without merit. Thus, any assertion of
deficient attorney performance at this stage will almost certainly be of the same
type as the one asserted in this case, that is, an assertion that counsel failed to
include one or more claims in the petition the defendant wanted to have raised. In
addition, a defendant who retains private counsel is bound by the actions of his
attorney and, therefore, bound by the attorney’s decision not to include a claim in
the petition. See People v. McNeal, 194 Ill. 2d 135, 147 (2000) (a defendant is not
entitled both to be represented by counsel and to proceed as a pro se litigant).
Conversely, a pro se defendant can include any and all claims he wishes to raise in
his petition. If he does not include a claim, the fault is his own. Accordingly,
recognizing a standard of attorney performance for the first stage of postconviction
proceedings does not disadvantage the indigent defendant. It simply places all
defendants on an equal footing in making sure the claims they want to have raised
in the postconviction petition are, in fact, included.

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¶ 22 Finally, the State contends that, because claims not raised in an original or
amended postconviction petition are waived (see id.), it would be improper for the
circuit court ever to consider any of the underlying claims raised in defendant’s
supplemented motion to reconsider. We reject this argument because it fails to
account for the fact that, once a right to reasonable assistance of counsel is
recognized under the Act, there must be a means to assert it. It is settled that a
defendant may allege on appeal from the denial of postconviction relief at the
second or third stage that his postconviction counsel provided unreasonable
assistance. See, e.g., People v. Turner, 187 Ill. 2d 406 (1999); People v. Guest, 166
Ill. 2d 381, 412-13 (1995); People v. Groszek, 2016 IL App (3d) 140455. We can
discern no reason why this should not be the case here. Further, because a
defendant may raise the issue of unreasonable assistance on appeal, it necessarily
may be raised in a motion to reconsider, since the interests of judicial economy are
best served by bringing it to the circuit court’s attention at the first opportunity.

¶ 23 For the foregoing reasons, we hold that a defendant who retains a private
attorney at the first stage of postconviction proceedings is entitled to a reasonable
level of assistance of counsel. To the extent appellate decisions, including Kegel
and Garcia-Roche, hold to the contrary, they are overruled.

¶ 24 Because the circuit court did not have the benefit of our ruling in this case, it did
not reach the substance of defendant’s supplemented motion to reconsider. We
conclude the appropriate disposition is to remand to the circuit court so it may do
so. If the circuit court determines the claims raised in defendant’s supplemented
motion to reconsider are frivolous or patently without merit, then the failure to
include those claims would not amount to a denial of reasonable assistance of
counsel, and defendant would not be entitled to relief on his motion to reconsider.
However, if the circuit court determines that one or more of the claims are not
frivolous or patently without merit and if the court determines that defendant’s
attorney was aware of such claims and refused to include them, then defendant
should be permitted to amend his petition with the claims and proceed to the second
stage of postconviction proceedings.

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¶ 25 CONCLUSION

¶ 26 The judgments of the circuit court and appellate court are reversed. The cause is
remanded to the circuit court for further proceedings consistent with this opinion.

¶ 27 Reversed and remanded.

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