People v. Peters

2022 IL App (2d) 210365-U
No. 2-21-0365
Order filed November 30, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 14 CF 939
)
SCOTT PETERS, ) Honorable
) Michael E. Coppedge,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice Brennan and Justice Hudson concurred in the judgment.

ORDER

¶1 Held: The defendant entered a knowing, intelligent, and voluntary waiver of his right to
postconviction counsel. The circuit court properly dismissed the defendant’s
postconviction petition at the second stage.

¶2 The defendant, Scott Peters, appeals from the dismissal of his postconviction petition at

the second stage. The defendant argues that the trial court erred in failing to properly admonish

him about the dangers of self-representation. The defendant also argues that the trial court erred

in dismissing his postconviction petition before ruling on the merits of his requests for

postconviction discovery and before he had an opportunity to amend his petition. We affirm.
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¶3 I. BACKGROUND

¶4 On November 6, 2014, the defendant was charged with six counts of attempted first-degree

murder (720 ILCS 5/9-1(a)(1), (b)(1), 8-4(a) (West 2014)) for shooting at three McHenry County

deputy sheriffs. He was also charged with two counts of aggravated battery (id. § 12-3.05(e)(2)(i))

and five counts of aggravated discharge of a firearm (id. § 24-1.2(a)(3)).

¶5 Following a jury trial in 2015, the defendant was convicted of the attempted murder (720

ILCS 5/9-1(a)(1), (b)(1), 8-4(a) (West 2014)) of the deputy sheriffs and was sentenced to a total

of 135 years’ imprisonment. On direct appeal, we affirmed the defendant’s conviction and

sentence. See People v. Peters, 2018 IL App (2d) 150650. On July 14, 2017, while his direct

appeal was pending, the defendant filed a petition under section 2-1401 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), arguing that his conviction was the result of

fraud, misrepresentation, and suppression of evidence. On October 4, 2017, the trial court

dismissed the defendant’s petition sua sponte in a written order. On appeal, we affirmed the

dismissal. See People v. Peters, 2020 IL App (2d) 170857-U.

¶6 On June 8, 2020, the defendant filed a pro se postconviction petition under the

Postconviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), raising various claims

of ineffective assistance of counsel of both trial and appellate counsel, and arguing that his

constitutional rights were violated by the trial court’s misconduct and abuse of discretion. On

August 12, 2020, the trial court docketed the petition and advanced it to the second stage. On

September 14, 2020, the defendant filed a motion for removal or withdrawal of counsel and for

self-representation. As a result of the Covid-19 pandemic, proceedings were delayed on the

defendant’s motion for self-representation.

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¶7 On November 6, 2020, the State filed a motion to dismiss, arguing that the defendant’s

claims were barred by waiver, forfeiture, or res judicata, that the defendant’s affidavit was not

notarized, and that he failed to support any claims for ineffective assistance of counsel.

¶8 At a November 20, 2020, hearing, the trial court addressed the defendant’s motion for self-

representation. The trial court noted that the defendant could proceed pro se as long as he was

aware of his right to appointed counsel and was knowingly and voluntarily willing to abandon that

right. Thereafter, the trial court asked the defendant twice whether he wished to proceed pro se

and the defendant responded affirmatively both times. The trial court then admonished the

defendant that, under the Act, once the public defender was removed the defendant was giving up

his right to counsel and that he would not have the opportunity to later request special counsel or

a public defender. The defendant explained to the trial court why he felt that the public defender

could not adequately represent him. The trial court found that the defendant was freely and

voluntarily giving up his right to counsel and granted the defendant’s motion for self-

representation.

¶9 On December 10, 2020, the defendant filed two motions for issuance of subpoena duces

tecum. In the first, the defendant requested that the State produce reports, documents,

electronically stored information, objects, or tangible things concerning the “removal for cause”

of Attorney Michael Combs from the McHenry County State’s Attorney’s office. In the second,

the defendant sought to have the public defender’s office provide his trial file to him, including a

detailed list of the file’s contents.

¶ 10 At a December 11, 2020, hearing, the trial court ordered the State to send the defendant a

copy of its motion to dismiss. The trial court noted that the defendant had filed motions to issue

subpoenas to the State and the public defender’s office. The trial court ordered the State to respond

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to those motions within seven days. The trial court then addressed whether the defendant had

received his case files. The defendant stated that he had received files from the public defender’s

office but that there was no list of the contents and it came with numerous DVD’s which he was

not allowed to have in jail and was not able to review. The defendant said he needed a court order

to view the DVDs. The trial court thus entered an order to that effect.

¶ 11 On December 17, 2020, the defendant filed four more motions seeking the issuance of

subpoenas duces tecum. The subpoenas were directed to Anne Majewski, M.D., the former

coroner for McHenry County, Coral Drzewiecki, an investigator for the public defender’s office,

Michelle Asplund, a McHenry County sheriff’s detective, and Ryan Hoven, a McHenry County

sheriff’s deputy. The subpoenas sought the curricula vitae of the named individuals as well as

reports, documents, materials, electronically stored information, objects, or tangible things related

to his case.

¶ 12 At a January 20, 2021, hearing, the trial court denied the State’s motion to dismiss the

defendant’s petition to the extent it was based on the argument that the affidavits attached to the

petition were not notarized. The trial court found that the affidavits attached to the defendant’s

motion were sufficiently sworn statements.

¶ 13 On March 6, 2021, the trial court inquired as to the defendant’s success in accessing the

prison law library to prepare a response to the State’s motion to dismiss “so that we can move your

post-conviction petition forward.” The defendant stated that his response was about 65% complete

and that he could be done with it in about three weeks. The trial court gave the defendant a March

26, 2021, target date to have his response complete, ordered the State to file a reply within 21 days

of receiving the response, and stated that the goal was to set the matter for a hearing in May. The

defendant stated that this was agreeable to him.

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¶ 14 On March 31, 2021, the defendant filed a 65-page response to the State’s motion to dismiss.

Numerous exhibits were attached. At an April 6, 2021, hearing, the trial court acknowledged that

the defendant had filed his response to the State’s motion to dismiss. The trial court explained that

the purpose of the State’s motion to dismiss was to determine what claims were sufficient to

warrant an evidentiary hearing. The trial court also explained that there was a limited right to

discovery in postconviction proceedings and the scope of the discovery should be related to what

issues were ultimately advanced to a third stage evidentiary hearing.

¶ 15 On May 6, 2021, the trial court ruled on the defendant’s motions for subpoenas that were

filed on December 10, 2020. The trial court granted the defendant’s request for any documents

related to a removal for cause of Attorney Combs. The subpoena for the public defender’s office

was denied on the basis that the entirety of the defendant’s trial file had already been provided to

the defendant.

¶ 16 On May 17, 2021, the trial court heard argument on the motion to dismiss. Following

argument, where the defendant was allowed to speak uninterrupted at length, the trial court stated

that it would take the motion under advisement. The trial court then heard argument on the

defendant’s December 17, 2020, motions for subpoenas. The State argued that the defendant had

not shown good cause for his discovery requests. The defendant stated that he needed the

subpoenas to get evidence should he “get an adverse ruling” on his postconviction petition. The

defendant acknowledged that the trial court had been “more than fair” throughout the proceedings

on his postconviction petition. The trial court stated that it would issue a decision on the discovery

requests in conjunction with its ruling on the motion to dismiss.

¶ 17 On June 7, 2021, the trial court entered a 12-page written order summarizing the

defendant’s postconviction claims and addressing their legal sufficiency. The trial court found

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that the issues raised in the defendant’s postconviction petition did not warrant relief under the

Act. The trial court granted the State’s motion to dismiss and further ordered that the dismissal

rendered the defendant’s requests for discovery to be moot. This timely appeal followed.

¶ 18 II. ANALYSIS

¶ 19 The defendant’s first contention on appeal is that he did not enter a knowing, intelligent,

and voluntary waiver of his right to counsel. The defendant argues that the trial court erred in

failing to admonish him of the consequences of self-representation or of any of the dangers or

disadvantages in waiving counsel. He asserts that the matter should be remanded for

reappointment of counsel and new second stage proceedings.

¶ 20 “The Act provides a remedy for defendants who have suffered a substantial violation of

constitutional rights at trial.” People v. Shipp, 2020 IL App (2d) 190027, ¶ 26. The Act provides

for three separate stages of postconviction proceedings. Id. At the first stage, the trial court

independently reviews the defendant’s postconviction petition and, if the court finds that “the

petition is frivolous is patently without merit,” the court must dismiss the petition. Id. (citing 725

ILCS 5/122-2.1(a)(2) (West 2020)).

¶ 21 If the petition is not dismissed it advances to the second stage. People v. Domagala, 2013

IL 113688, ¶ 35. At the second stage, the court shall appoint counsel for an indigent defendant

upon his or her request. 725 ILCS 5/122-4 (West 2018). The State may answer the petition or

move to dismiss it. Id. § 122-5. The question at the second stage of proceedings is whether the

allegations of the petition, taken as true unless positively rebutted by the record, and the attached

supporting materials make a substantial showing of a constitutional violation. Domagala, 2013 IL

113688, ¶¶ 33, 35. If the petition makes such a showing, it advances to a third-stage evidentiary

hearing. People v. Coleman, 183 Ill. 2d 366, 385 (1998). The dismissal of a postconviction

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petition without an evidentiary hearing is reviewed de novo. People v. Hall, 217 Ill. 2d 324, 334

(2005).

¶ 22 There is no constitutional right to assistance of counsel during postconviction proceedings.

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather, it is the Act that affords indigent

defendants the advantages of representation in the second and third stages of postconviction

proceedings. People v. Lesley, 2018 IL 122100, ¶ 33 (citing 725 ILCS 5/122-4 (West 2012)).

Under the Act, a postconviction petitioner is entitled to “reasonable” assistance. Id. However, “a

defendant has a right to proceed pro se in postconviction proceedings.” Id. To do so, “[a]

defendant must ‘knowingly and intelligently relinquish his right to counsel,’ and his waiver ‘must

be clear and unequivocal, not ambiguous.’ ” Id. (quoting People v. Baez, 241 Ill. 2d 44, 115-16

(2011)). A knowing and intelligent waiver requires “a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Id. ¶ 51. A trial

court’s decision allowing a defendant to proceed pro se is reviewed for an abuse of discretion.

Baez, 241 Ill. 2d at 116. An abuse of discretion exists only where the ruling is “arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the trial court.”

People v. Hall, 195 Ill. 2d 1, 20 (2000).

¶ 23 In the present case, the defendant argues that his waiver of counsel was not voluntary,

knowing, and intelligent because the trial court did not warn him of the specific complications of

proceeding pro se in postconviction proceedings or explain what appointed counsel normally does

during second stage proceedings. A similar argument was rejected in People v. Harrison, 2018 IL

App (3d) 150419.

¶ 24 In Harrison, the defendant’s postconviction petition was advanced to the second stage.

Id. ¶ 5. At a hearing, the defendant informed the trial court that he wished to proceed pro se.

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Id. ¶ 6. When the trial court asked the defendant why he believed he could handle the complex

issues in a postconviction proceeding, the defendant stated that postconviction counsel was not

responsive to his requests and that trial counsel, whose performance he was attacking, was

postconviction counsel’s boss. Id. The trial court allowed the defendant’s request to proceed pro

se. Id. On appeal from the denial of his postconviction petition, the defendant argued that his

waiver of postconviction counsel was invalid because the trial court did not admonish him

regarding the dangers and disadvantages of self-representation. Id. ¶ 12. The reviewing court held

that neither case law nor the Act required such extensive admonishments and that the trial court’s

limited inquiry was sufficient. Id. ¶ 17.

¶ 25 As in Harrison, the trial court here was not required to admonish the defendant about the

disadvantages of self-representation. Id. Further, there is no authority for the proposition that the

trial court must admonish the defendant regarding the duties postconviction counsel would

perform at the second stage of proceedings. In this case, the defendant expressly requested to

proceed pro se and the trial court explained that his waiver of counsel had to be voluntary,

knowing, and intelligent. The trial court asked the defendant twice whether he wished to proceed

pro se and the defendant responded affirmatively both times. The trial court then explained that

the defendant had a right to appointed counsel and that, if he waived that right, he would not be

able to make a subsequent request for appointed counsel later in the proceedings. The defendant

stated that no one from McHenry County could adequately represent him. The defendant did not

vacillate on his request for self-representation. The record thus demonstrates that the trial court

sufficiently addressed the motion for waiver of postconviction counsel and did not abuse its

discretion in finding that the waiver was voluntary, knowing, and intelligent.

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¶ 26 In so ruling, we note that the defendant cites People v. Lesley, 2018 IL 122100, ¶ 51, for

the proposition that a knowing, voluntary, and intelligent waiver of counsel requires “a full

awareness of both the nature of the right being abandoned and the consequences of the decision to

abandon it.” The defendant asserts that Harrison would have been decided differently had it been

considered after our supreme court’s decision in Lesley. Not only is this pure speculation, no court

has interpreted Lesley, which involved waiver of postconviction counsel due to the defendant’s

conduct, to mean that a trial court must admonish a defendant regarding the duties postconviction

counsel would perform at the second stage of proceedings or otherwise elaborate on any

complications specific to self-representation in postconviction proceedings.

¶ 27 The defendant’s second contention on appeal is that the trial court erred in granting the

State’s motion to dismiss before the defendant had an opportunity to complete review of his record

and trial file, before resolving his motions for discovery, and before he had an opportunity to

amend his petition. We find these arguments to be without merit.

¶ 28 The record does not support the defendant’s contention that he was not given adequate time

to review the record and appropriately respond to the State’s motion to dismiss. The record

defendant received a majority of the trial record in December 2020 and he was sent the final portion

of his trial record in January 2021. At the next couple of hearings, the trial court repeatedly

inquired as to the defendant’s ability to access the prison law library to work on his response to

the motion to dismiss. On March 5, 2021, the defendant stated that he was 65% complete with his

response. When the trial court asked the defendant if he could be done with his response at the

end of March, the defendant agreed that he could be. The defendant did not thereafter indicate

that he needed additional time to review the trial file or work on his response. Rather, on March

31, 2021, the defendant filed a 65-page response to the motion to dismiss accompanied by

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numerous exhibits. The record thus demonstrates the defendant had sufficient time to respond to

the State’s motion to dismiss.

¶ 29 The defendant also argues that the trial court erred in not ruling on his requests for

discovery and thereafter allowing him time to amend his complaint. However, the defendant never

asked to amend his complaint either before or during the hearing on the State’s motion to dismiss.

Further, the defendant never argued that the discovery was needed to support the claims in his

petition or that he needed the discovery to file an amended complaint. He stated only that the

discovery was relevant for future proceedings if he received an “adverse ruling” on his

postconviction petition. Moreover, the defendant does not argue on appeal how any of the specific

discovery he was requesting could have benefitted him in terms of filing an amended

postconviction petition. Accordingly, while we agree that postconviction discovery is not limited

to third stage proceedings, the defendant’s arguments fail to establish any error in this case.

¶ 30 In so ruling, we note that the defendant cites People v. Dixon, 2019 IL App (1st) 160443,

to support the proposition that the trial court should have addressed his discovery requests, allowed

discovery where he was able to show good cause, and given him an opportunity to amend his

complaint. In Dixon, the defendant sought to acquire trial counsel’s trial file. Id. ¶ 28. On appeal,

the reviewing court reversed the trial court’s denial of this request. Id. ¶¶ 28, 34. The reviewing

court explained that the record showed that, prior to the Dixon defendant’s waiver of

postconviction counsel, counsel had reviewed the trial file and had agreed to raise one claim of

ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel.

Id. ¶ 34. The reviewing court thus noted that the request to review the trial file was not a fishing

expedition as it clearly contained information relevant to the Dixon defendant’s postconviction

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petition. Id. The Dixon court reversed the dismissal of the defendant’s postconviction petition

and remanded for further second stage proceedings. Id. ¶ 55.

¶ 31 In the present case, unlike Dixon, the defendant is not seeking his trial file. The record

indicates that the defendant received his entire trial file. Also, unlike Dixon, the defendant has not

established that any of the discovery he was seeking was relevant to the claims he raised in his

postconviction petition. See People v. Johnson, 205 Ill. 2d 381, 408 (2002) (one of the factors to

consider, in determining whether the defendant has shown good cause for his discovery request,

is how the discovery would relate to the issues presented in his postconviction petition). It is well

settled that postconviction discovery is inappropriate where the request amounts to little more than

a “fishing expedition.” People v. Hickey, 204 Ill. 2d 585, 598 (2001). As such, the defendant has

failed to establish that the trial court erred in failing to rule on the merits of his discovery requests

prior to granting the State’s motion to dismiss his petition.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

¶ 34 Affirmed.

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