People v. Suarez

Docket No. 100499.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWIN

SUAREZ, Appellant.

Opinion filed January 19, 2007.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

and Karmeier concurred in the judgment and opinion.

Justice Burke took no part in the decision.

OPINION

Following a jury trial in December 1987 before the circuit court of

Cook County, defendant Edwin Suarez was convicted of first degree

murder and three counts of attempt (first degree murder). The circuit

court imposed a 40-year prison sentence for the murder conviction,

concurrent sentences of 15 years’ imprisonment on two of the three

attempt (first degree murder) counts, and a 15-year sentence on the

third count, to be served consecutively to the 40-year sentence.

Defendant’s convictions and sentences were affirmed on appeal.

People v. Suarez, 238 Ill. App. 3d 110 (1991). In November 1993,

private counsel filed a postconviction petition on defendant’s behalf,

alleging ineffective assistance of trial counsel. The circuit court

granted the State’s motion to dismiss the petition as untimely filed.

This decision was affirmed by the appellate court. People v. Suarez,

No. 1–94–4391 (1995) (unpublished order under Supreme Court Rule

23).

In November 2000, defendant filed a pro se petition, in which he

alleged that the statute under which he was sentenced violated the rule

of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.

Ct. 2348 (2000). The petition proceeded to second-stage review and

the circuit court appointed counsel for defendant. Counsel filed a

supplemental petition. That petition was dismissed on the State’s

motion. Counsel did not file a certificate under Supreme Court Rule

651(c) (134 Ill. 2d R. 651(c)). The appellate court affirmed. No.

1–04–0696 (unpublished order under Supreme Court Rule 23). We

granted defendant leave to appeal. 177 Ill. 2d R. 315.

BACKGROUND

Defendant and a codefendant were tried together before separate

juries. The codefendant’s jury convicted him of first degree murder

and acquitted him of all attempt charges. The codefendant received a

40-year prison sentence.

Defendant’s 15-year consecutive sentence on one count of attempt

(first degree murder) was imposed under section 5–8–4(b) of the

Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par.

1005–8–4(b), now 730 ILCS 5/5–8–4(b) (West 2004)). At the time

defendant committed the offenses of which he was convicted, that

section prohibited the circuit court from imposing a consecutive

sentence unless, having regard to the nature and circumstances of the

offense and the history and character of the defendant, the court was

of the opinion that such a term is required to protect the public from

further criminal conduct by the defendant. The circuit court made the

necessary finding at defendant’s sentencing hearing and imposed the

consecutive sentence. In his petition, defendant argued that because

the sentencing statute permitted the judge to make the finding, rather

than a jury, the statute was unconstitutional under Apprendi and his

consecutive sentence was therefore void.

The pro se petition filed by defendant in November 2000 was

brought under section 2–1401 of the Code of Civil Procedure (735

ILCS 5/2–1401 (West 2000)). The circuit court treated the petition as

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a postconviction petition and appointed counsel for defendant.

Counsel filed a supplemental petition in September 2002. That petition

realleged defendant’s Apprendi claim and added a second claim, i.e.,

that defendant’s three convictions for attempt (first degree murder)

should be vacated because they were inconsistent with the acquittal of

his codefendant on the same charges. The circuit court granted the

State’s motion to dismiss the petition. The appellate court affirmed.

Defendant’s only argument in the appellate court was that the cause

must be remanded because postconviction counsel failed to file a

certificate of compliance with Rule 651(c) and the record failed to

demonstrate compliance. The appellate court concluded that the

failure to comply was harmless error because defendant’s

postconviction claims were without merit as a matter of law. Thus, the

court reasoned, no amount of reviewing the record, communicating

with defendant, or amending the pro se petition would have prevented

the rejection of defendant’s claims.

ANALYSIS

I

Because the question presented in this appeal concerns the proper

interpretation of a supreme court rule, our review is de novo. People

v. Henderson, 217 Ill. 2d 449, 458 (2005). In addition, when a

postconviction petition is dismissed without an evidentiary hearing,

the standard of review is de novo. People v. Coleman, 183 Ill. 2d 366,

388-89 (1998).

II

We first address the State’s argument that the record in this case

demonstrates that postconviction counsel fulfilled the duties mandated

by Rule 651(c), despite the fact that she did not file a certificate of

compliance.

There is no constitutional right to the assistance of counsel in

postconviction proceedings; the right to counsel is wholly statutory

(see 725 ILCS 5/122-4 (West 2000)), and petitioners are only entitled

to the level of assistance provided for by the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122–1 et seq. (West 2000)); People v. Turner,

187 Ill. 2d 406, 410 (1999). The Act provides for a reasonable level

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of assistance. People v. Flores, 153 Ill. 2d 264, 276 (1992). To ensure

that postconviction petitioners receive this level of assistance, Rule

651(c) imposes specific duties on postconviction counsel. The rule

provides as follows:

“Upon the timely filing of a notice of appeal in a

post-conviction proceeding, if the trial court determines that

the petitioner is indigent, it shall order that a transcript of the

record of the post-conviction proceedings, including a

transcript of the evidence, if any, be prepared and filed with

the clerk of the court to which the appeal is taken and shall

appoint counsel on appeal, both without cost to the petitioner.

The record filed in that court shall contain a showing, which

may be made by the certificate of petitioner’s attorney, that

the attorney has consulted with petitioner either by mail or in

person to ascertain his contentions of deprivation of

constitutional right, 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.” 134 Ill. 2d R. 651(c).

Defendant argues the record does not demonstrate that counsel

consulted with defendant to ascertain his contentions of constitutional

deprivation. The State argues that by considering the supplemental

petition together with counsel’s obligations under Supreme Court

Rule 137 (155 Ill. 2d R. 137), it may be inferred that counsel fulfilled

the consultation requirement of the rule. Rule 137 requires attorneys

to certify that they have made “reasonable inquiry” into the basis for

pleadings signed by them and provides sanctions for violation of the

rule. According to the State, this duty, coupled with the fact that

postconviction counsel added a new claim of inconsistent verdicts in

the supplemental petition, raises a presumption that counsel did, in

fact, consult with defendant. The State further asserts that the burden

should be on defendant to rebut this presumption. In support, the

State cites People v. Greer, 212 Ill. 2d 192 (2004). In Greer, the issue

was whether postconviction counsel may seek to withdraw as counsel

due to a petition’s lack of merit. This court determined that such a

procedure was permissible, noting that under Rule 137 counsel could

not ethically pursue claims that were frivolous and patently without

merit. Greer, 212 Ill. 2d at 209.

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As applied to the instant case, the State argues that postconviction

counsel could not have fulfilled the “reasonable inquiry” requirement

of Rule 137 and prepared a supplemental petition that was well

grounded in fact without consulting with defendant. However, the

supplemental petition simply realleged defendant’s Apprendi claim in

more detail and made legal arguments that were lacking in the pro se

petition. In support of the new claim of inconsistent verdicts, counsel

made only a general allegation that the evidence before the two juries

concerning the attempted murder charges was the same. The

supplemental petition based this allegation on the appellate court

opinion that affirmed defendant’s convictions. Nothing in the

supplemental petition suggests that counsel consulted with defendant

in preparing the petition. Further, Greer does not support the State’s

argument that a presumption of consultation should arise from the

mere amendment of a pro se postconviction petition. Greer did not

raise any issue of compliance with Rule 651(c), nor did it discuss that

rule in conjunction with Rule 137. Accordingly, we reject the State’s

argument that compliance was shown in this case and that any

presumption of compliance with the consultation requirement is raised

by the amendment of the pro se petition or the filing of a supplemental

petition.

III

We now turn to defendant’s argument that the appellate court

erred in finding that postconviction counsel’s failure to comply with

Rule 651(c) constituted harmless error.

Within 90 days of the filing and docketing of a pro se petition for

postconviction relief, the circuit court is to examine the petition. If the

court determines that the petition is frivolous or is patently without

merit, it shall dismiss the petition. If the petition is not dismissed

within the 90-day period, the circuit court must order the petition

docketed for further consideration. 725 ILCS 5/122–2.1(a), (b) (West

2000). The circuit court may thereafter appoint counsel if the

petitioner requests counsel and is indigent. 725 ILCS 5/122–4 (West

2000). Within 30 days of the docketing of the petition under section

122–2.1(b) of the Act, the State must file an answer to the petition or

move to dismiss it. 725 ILCS 5/122–5 (West 2000).

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At the time defendant’s pro se postconviction petition was filed,

this court had not determined whether Apprendi applied in

postconviction proceedings. Accordingly, defendant’s petition stated

the gist of a constitutional claim and qualified for second-stage review

and the appointment of counsel. While defendant’s postconviction

proceedings were pending, however, this court filed its decision in

People v. De La Paz, 204 Ill. 2d 426 (2003), holding that Apprendi

does not apply in collateral proceedings. In the meantime, however,

postconviction counsel filed a supplemental petition that realleged

defendant’s Apprendi claim and added another claim regarding

inconsistent verdicts. The State argues that application of harmless

error review to this case is appropriate because counsel could do

nothing to shape defendant’s noncognizable Apprendi claim into a

meritorious issue. Accordingly, it would be a waste of judicial

resources to remand this cause for compliance with Rule 651(c).

Defendant, on the other hand, argues that this court should not depart

from its precedent that has insisted on compliance with Rule 651(c),

regardless of the merits of the pro se petition.

In affirming the dismissal of defendant’s petition on the basis of

harmless error, the appellate court followed the reasoning of People

v. Sargent, 357 Ill. App. 3d 946 (2005), a First District case. The

postconviction petitioner in Sargent raised an Apprendi claim in a pro

se petition filed in 2001. The petition proceeded to second-stage

review and counsel was appointed. Subsequently, the circuit court

dismissed the petition in light of this court’s decision in De La Paz.

The appellate court affirmed the dismissal, finding postconviction

counsel’s failure to comply with the requirements of Rule 651(c) to be

harmless error. The court noted that the question presented was one

purely of law. According to the court, “no amount of scouring the

record, nor multiple meetings with petitioner, nor any amendment of

the petition, could have saved the Apprendi claim from ultimate

dismissal.” Sargent, 357 Ill. App. 3d at 953. A case from the Third

District has also affirmed the dismissal of a postconviction petition on

the basis of harmless error where counsel failed to comply with Rule

651(c). In People v. Oakes, 355 Ill. App. 3d 748 (2005), as in Sargent

and the instant case, the defendant filed a pro se petition whose sole

claim was that his sentence violated the rule of Apprendi. The record

contained no showing that appointed counsel had consulted with the

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defendant; despite this, the appellate court found the error to be

harmless. Oakes, 355 Ill. App. 3d at 750.

As this court has noted, in granting a right to counsel for pro se

petitioners whose petitions are not dismissed at the first stage of

postconviction proceedings, the legislature recognized that most

postconviction petitions would be filed by pro se prisoners who lacked

the assistance of counsel in framing their petitions. People v.

Slaughter, 39 Ill. 2d 278, 285 (1968). The duties imposed on

postconviction counsel serve to ensure that the complaints of a

prisoner are adequately presented. To that end, the statute envisioned

that counsel would consult with the prisoner either by mail or in

person, ascertain his alleged grievances, examine the record of

proceedings at the trial, and amend the pro se petition, if necessary.

“The statute cannot perform its function unless the attorney appointed

to represent an indigent petitioner ascertains the basis of his

complaints, shapes those complaints into appropriate legal form and

presents them to the court.” Slaughter, 39 Ill. 2d at 285. Rule 651(c)

was promulgated by this court to implement its decision in Slaughter,

as well as its decisions in People v. Jones, 43 Ill. 2d 160 (1969)

(failure to consult is a failure to discharge an elementary responsibility

of representation), and People v. Garrison, 43 Ill. 2d 121 (1969)

(holding that a failure to confer does not meet even a minimal

professional standard and necessitates reversal). 134 Ill. 2d R. 651(c),

Committee Comments.

This court has consistently held that remand is required where

postconviction counsel failed to fulfill the duties of consultation,

examining the record, and amendment of the pro se petition,

regardless of whether the claims raised in the petition had merit. See,

e.g., People v. Wales, 46 Ill. 2d 79 (1970); People v. Barnes, 40 Ill.

2d 383 (1968); People v. Ford, 40 Ill. 2d 440 (1968); People v.

Wilson, 40 Ill. 2d 378 (1968); People v. Craig, 40 Ill. 2d 466 (1968);

People v. Tyner, 40 Ill. 2d 1 (1968). In Jones, this court rejected the

State’s argument that the circuit court properly dismissed the petition

because its allegations were insufficient to raise a constitutional issue

and it could not be made sufficient through amendment. The court

noted its prior holdings that it is error to dismiss a postconviction

petition on the pleadings where there has been inadequate

representation by counsel:

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“We have held it to be error to dismiss a post-conviction

petition on the pleadings, as occurred here, where there has

been inadequate representation by counsel, though the [p]ro

se petition itself fails to present a substantial constitutional

claim.” Jones, 43 Ill. 2d at 162.

In People v. Brown, 52 Ill. 2d 227 (1972), the record failed to

show that postconviction counsel had examined the transcript of

proceedings. The State argued on appeal that an examination of the

transcript would not have benefitted the defendant because all errors

found therein were either res judicata or waived. This court noted

that fundamental fairness may require the review of waived issues. In

addition, the court noted:

“[T]he purpose underlying Rule 651(c) is not merely formal.

It is to ensure that all indigents are provided proper

representation when presenting claims of constitutional

deprivation under the Post-Conviction Hearing Act.

[Citation.] The fulfillment of this design would not be

encouraged were we to ignore the rule’s nonobservance in

those cases appealed to this court.” Brown, 52 Ill. 2d at 230.

More recent decisions have not departed from this principle. In

People v. Johnson, 154 Ill. 2d 227 (1993), this court refused to

speculate whether the circuit court might have dismissed the

defendant’s postconviction petition on grounds other than the failure

to attach supporting affidavits, as there was no evidence in the record

that the circuit court did dismiss the petition on such grounds:

“The trial court here concluded that the allegations in the

petition relating to counsel’s performance at trial did not

warrant an evidentiary hearing. It is entirely possible that the

trial court would have reached this same conclusion even if

counsel had contacted the witnesses named in the petition and

attached affidavits in support of the post-conviction claims.

We cannot simply presume, however, that the trial court

would have dismissed the petition without an evidentiary

hearing if counsel had adequately performed his duties under

Rule 651(c). It is the duty of the trial court, and not this court,

to determine on the basis of a complete record whether the

post-conviction claims require an evidentiary hearing.”

Johnson, 154 Ill. 2d at 246.

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Again, in People v. Turner, 187 Ill. 2d 406 (1999), this court

rejected the State’s argument that the postconviction petitioner was

not prejudiced by his counsel’s deficiencies because the claims in the

pro se petition lacked merit. We held that, “[o]n a more fundamental

level, it is improper to affirm the dismissal of a post-conviction

petition when this court finds that post-conviction counsel’s

performance was so deficient that it amounts to virtually no

representation at all.” Turner, 187 Ill. 2d at 415-16. Counsel in that

case had not consulted with petitioner, examined pertinent portions of

the record, or amended the pro se petition. This court rejected the

State’s harmless error argument, refusing to speculate on whether the

circuit court would have dismissed the petition without an evidentiary

hearing had counsel adequately performed his duties under Rule

651(c). Turner, 187 Ill. 2d at 416.

Our recent decision in People v. Lander, 215 Ill. 2d 577 (2005),

illustrates the importance of compliance with the requirements of Rule

651(c). In Lander, the defendant filed a pro se postconviction petition,

alleging ineffective assistance of counsel. The petition advanced to the

second stage and counsel was appointed. The circuit court dismissed

the petition as untimely. Counsel did not file a Rule 651(c) certificate

and the record did not show compliance. The appellate court held that

no showing of compliance was required because counsel had no

obligation to consult with the defendant regarding his claims of

constitutional deprivation until the time bar was overcome. This court

disagreed, noting that the State had the ability to waive the time

requirement if the petition demonstrates a substantial deprivation of

the defendant’s constitutional rights. Thus, postconviction counsel

must fulfill the duties imposed by the rule to present the defendant’s

constitutional claims. Lander, 215 Ill. 2d at 585.

The State would have us overrule decades of precedent to affirm

the appellate court. This necessarily implicates the principle of stare

decisis, which we recently discussed in People v. Sharpe, 216 Ill. 2d

481 (2005):

“Overruling a decision of this court, let alone an entire

body of case law, necessarily implicates stare decisis

principles. With regard to stare decisis, this court recently

observed the following:

‘The doctrine of stare decisis “expresses the policy of

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the courts to stand by precedents and not to disturb settled

points.” Neff v. George, 364 Ill. 306, 308-09 (1936),

overruled on other grounds by Tuthill v. Rendelman, 387

Ill. 321 (1944). This doctrine “is the means by which

courts ensure that the law will not merely change

erratically, but will develop in a principled and intelligible

fashion.” Chicago Bar Ass’n v. Illinois State Board of

Elections, 161 Ill. 2d 502, 510 (1994). Stare decisis

enables both the people and the bar of this state “to rely

upon [this court’s] decisions with assurance that they will

not be lightly overruled.” Moehle v. Chrysler Motors

Corp., 93 Ill. 2d 299, 304 (1982).

To be sure, stare decisis is not an inexorable

command. Chicago Bar Ass’n, 161 Ill. 2d at 510; Payne

v. Tennessee, 501 U.S. 808, 842, 115 L. Ed. 2d 720, 746,

111 S. Ct. 2597, 2617 (1991) (Souter, J., concurring).

However, we have consistently held that any departure

from stare decisis must be specially justified (Chicago Bar

Ass’n, 161 Ill. 2d at 510) and that prior decisions should

not be overruled absent “good cause” (Moehle, 93 Ill. 2d

at 304; Heimgaertner v. Benjamin Electric Manufacturing

Co., 6 Ill. 2d 152, 166-67 (1955)) or “compelling reasons”

(Moehle, 93 Ill. 2d at 304; People v. Robinson, 187 Ill. 2d

461, 463-64 (1999)). *** In sum, “when a rule of law has

once been settled, contravening no statute or

constitutional principle, such rule ought to be followed

unless it can be shown that serious detriment is thereby

likely to arise prejudicial to public interests.” Maki, 40 Ill.

2d at 196; see also Heidenreich v. Bremner, 260 Ill. 439,

450-51 (1913).’ Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82

(2004).” Sharpe, 216 Ill. 2d at 519-20.

In attempting to make its case for the overruling of our precedent

regarding compliance with Rule 651(c), the State draws a distinction

between prior cases where we have rejected its arguments advocating

a harmless error analysis and the instant case. In those past cases, the

State says, the claims raised were potentially meritorious; in contrast,

defendant’s Apprendi claim, like the claims raised in the Sargent and

Oakes cases, is not cognizable and nothing counsel could do would

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make the claim meritorious. However, this case does not present the

clear-cut situation the State describes. Postconviction counsel filed a

supplemental petition and added a claim concerning alleged

inconsistent verdicts. The appellate court found that the claim was

meritless based upon our decision in People v. Jones, 207 Ill. 2d 122

(2003). That case concerned allegedly inconsistent verdicts against the

same defendant. This court held there that a defendant may no longer

challenge a conviction on the sole basis that it is inconsistent with that

same defendant’s acquittal on another charge. Jones, 207 Ill. 2d at

134-35. The issue raised by postconviction counsel in the amended

petition, however, concerned alleged inconsistent verdicts as between

defendant and his codefendant. Curiously, neither defendant nor the

State makes any argument in their respective briefs concerning the

potential viability of this issue. We express no opinion on the viability

of this claim; we raise the matter only to show that the State’s

assertion that this case concerns only the pro se Apprendi claim is

inaccurate.

Our analysis, however, does not depend upon whether the pro se

or supplemental petitions in this case did or did not contain potentially

meritorious issues. Our Rule 651(c) analysis has been driven, not by

whether a particular defendant’s claim is potentially meritorious, but

by the conviction that where postconviction counsel does not

adequately complete the duties mandated by the rule, the limited right

to counsel conferred by the Act cannot be fully realized. See Brown,

52 Ill. 2d at 230 (“[T]he purpose underlying Rule 651(c) is not merely

formal. It is to ensure that all indigents are provided proper

representation when presenting claims of constitutional deprivation

under the Post-Conviction Hearing Act. [Citation.] The fulfillment of

this design would not be encouraged were we to ignore the rule’s

nonobservance in those cases appealed to this court”); Jones, 43 Ill.

2d at 162 (failure to consult with postconviction petitioner is a failure

to discharge an elementary responsibility of representation). We have

consistently declined the State’s invitation to excuse noncompliance

with the rule on the basis of harmless error. We have refused to

address questions that are properly determined in the first instance by

the circuit court. The State presents no new persuasive arguments that

would justify departing from our prior case law. Accordingly, we

decline to hold that noncompliance with Rule 651(c) may be excused

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on the basis of harmless error.

CONCLUSION

For the reasons stated, we hold that the appellate court erred in

applying a harmless error analysis where no compliance with Rule

651(c) was shown. Such compliance must be shown regardless of

whether the claims made in the pro se or amended petition are viable.

Accordingly, we reverse the judgment of the appellate court and

remand this cause to the circuit court for the purpose of

demonstrating compliance with Rule 651(c). We overrule the

appellate court decisions in Sargent and Oakes to the extent those

cases are in conflict with our holding.

Appellate court judgment reversed;

cause remanded.

JUSTICE BURKE took no part in the consideration or decision

of this case.

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