                                      2015 IL App (1st) 123489


                                                                                 THIRD DIVISION
                                                                                 February 11, 2015


                                           No. 1-12-3489


______________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
                  Plaintiff-Appellee,           )     Cook County.
                                                )
v.                                              )     No. 08 CR 5917
                                                )
JESUS COTTO,                                    )     Honorable
                                                )     Shelley Sutker-Dermer,
                  Defendant-Appellant.          )     Judge Presiding.
______________________________________________________________________________

       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Justice Hyman concurred in the judgment and opinion.
       Presiding Justice Pucinski dissented in the judgment and opinion.

                                            OPINION

¶1     Defendant Jesus Cotto appeals the second-stage dismissal of his petition for relief under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that

his privately retained postconviction counsel did not provide him reasonable assistance because

he failed to contest the State's assertion that his petition was untimely due to his culpable

negligence. As a remedy, defendant requests that his case be remanded for new second-stage

proceedings with different counsel.

¶2     Following a bench trial in September 2008, defendant was found guilty of armed robbery.

Based on his prior felony convictions for armed robbery and aggravated vehicular hijacking with
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a weapon, he was sentenced as an habitual criminal to natural life imprisonment. This court

affirmed that judgment on direct appeal. People v. Cotto, No. 1-08-3031 (June 3, 2009)

(unpublished order under Supreme Court Rule 23).

¶3     On September 28, 2011, defendant filed the instant postconviction petition through

retained counsel. In his petition, defendant made numerous claims of ineffective assistance of

counsel at trial and on direct appeal. 1 He alleged, inter alia, that counsel failed to adequately

prepare him for trial; failed to communicate with him and his family throughout the trial and

appeals process; and failed to mail him a copy of this court's decision on direct appeal for more

than 30 days after it was issued.

¶4     In support of the petition, defendant attached affidavits from his brother and mother, who

averred, in relevant part, that counsel failed to communicate with them throughout the trial and

on appeal, and failed to inform them about defendant's conviction and the decision on direct

appeal until more than 30 days after issuance. Defendant also attached a copy of an envelope

from counsel addressed to defendant's mother, postmarked September 4, 2009, and his own

affidavit corroborating the allegations in his petition.

¶5     On November 18, 2011, the circuit court docketed defendant's petition for second-stage

proceedings. On March, 30, 2012, the State moved to dismiss it, arguing, inter alia, that it was

untimely filed. The State noted that the petition was filed more than six months after the

appellate decision was issued and that defendant had failed to present facts to suggest that the




       1
           The record shows that defendant retained the same attorney at trial and on direct appeal.
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1-12-3489



untimely filing was not due to his culpable negligence. 2 The State also asserted that defendant's

substantive claims were barred by res judicata and waiver; that the petition consisted of

unsupported, conclusory allegations; and, as a consequence, that defendant failed to make a

substantial showing of a constitutional violation to merit an evidentiary hearing.

¶6     On August 17, 2012, defense counsel filed a response to the State's motion in which he

asserted that the petition was timely filed because trial counsel failed to inform defendant about

the June 3, 2009 appellate decision and that the attached envelope, postmarked September 4,

2009, proved that the decision was sent to defendant's mother, rather than him, and that it was

mailed more than 30 days after the decision was issued. Counsel maintained that defendant was

incarcerated at the time of his appeal and that the delay in filing the petition was not due to any

negligence on defendant's part, but was the result of the ineffectiveness of trial counsel, who

failed to timely communicate with him about his appeal.

¶7     On November 2, 2012, the court conducted a hearing on the State's motion. The State

rested on its arguments in the motion to dismiss regarding the timeliness issue, then argued the

merits of the substantive claims set forth in defendant's petition. The State asserted that each of

defendant's claims was speculative, refuted by the record, or unsupported by law or fact, and that

counsel had provided reasonable assistance.

¶8     Postconviction counsel did not address the untimeliness of the petition and, instead,

focused on the merits of the claims in the petition. Counsel acknowledged that there "[was not]

one particular thing that pinpoint[ed] to the ineffective assistance of [trial] counsel," but that the




       2
         The State noted, incorrectly, that the appellate decision was filed on August 19, 2009,
instead of June 3, 2009, however, that discrepancy is inconsequential where the petition was
filed more than two years after the direct appeal.
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1-12-3489



court should look at "the whole house," suggesting, as in the petition, that the "cumulative effect"

of trial counsel's actions constituted a substantial violation of defendant's constitutional rights.

Prior to issuing its ruling, the circuit court noted that it had reviewed the case, examined each of

defendant's claims and found that they were not supported by the record or the law, and then

granted the State's motion to dismiss.

¶9     In this appeal from that order, defendant abandons the issues raised in his petition,

thereby forfeiting their appellate review (Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Instead,

defendant solely claims that his retained postconviction counsel failed to provide him reasonable

assistance with his petition because he failed to contest the State's assertion that the untimely

filing of his petition was due to his culpable negligence.

¶ 10   The State, relying on our decision in People v. Csaszar, 2013 IL App (1st) 100467, ¶ 15,

responds that the Act does not require reasonable assistance of privately retained counsel, and

thus defendant failed to state a cognizable claim on appeal. In Csaszar, defendant hired a private

attorney to draft and file his postconviction petition, alleging various claims of ineffective

assistance of counsel. The State filed a motion to dismiss the petition, which was subsequently

granted. Csaszar, 2013 IL App (1st) 100467, ¶¶ 12-13. On appeal, defendant did not contest the

dismissal of his petition on the merits, but argued instead that privately retained counsel did not

provide him reasonable assistance. Csaszar, 2013 IL App (1st) 100467, ¶ 15. There, we held that

although a pro se 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, and therefore

defendant failed to state a cognizable claim for relief. Csaszar, 2013 IL App (1st) 100467, ¶¶ 18,

25. We find no appreciable difference in the case at bar, where, as in Csaszar, defendant retained

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1-12-3489



private counsel to prepare and file his petition for him.

¶ 11   Defendant, on the other hand, relies on People v. Anguiano, 2013 IL App (1st) 113458,

where the Fourth Division of this court found that the Act requires a reasonable level of

assistance from all counsel, whether appointed or privately retained, and declined to draw a

distinction between the two. People v. Anguiano, 2013 IL App (1st) 113458, ¶¶ 32, 34. We

continue to find the reasoning in Csaszar persuasive and, accordingly, affirm the circuit court's

dismissal of defendant's petition.

¶ 12   That said, we observe that even under Anguiano, we would affirm the dismissal. In

Anguiano, postconviction counsel was found to have provided reasonable assistance, where he

attempted to overcome a procedural bar of res judicata even though he was unable to persuade

the court of its sufficiency. Anguiano, 2013 IL App (1st) 113458, ¶ 49. Here, counsel likewise

demonstrated his understanding of the procedural hurdle of untimeliness, when he responded to

the State's motion to dismiss raising the issue. He argued that defendant was not culpably

negligent for the late filing, citing trial counsel's lack of communication and tardiness in mailing

the decision on direct appeal to him, and attached affidavits from defendant and his family

members to that effect, as well as a postmarked envelope showing the late mailing. Although, as

in Anguiano, counsel's argument was not necessarily convincing, defendant has 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. Id. Accordingly, counsel's performance was not so

deficient that he failed to provide a reasonable level of assistance. Id.

¶ 13   For the reasons set forth above, we affirm the judgment of the circuit court of Cook

County.

¶ 14   Affirmed.

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1-12-3489



¶ 15    PRESIDING JUSTICE PUCINSKI, dissenting.

¶ 16    With respect, I disagree.

¶ 17    I believe that People v. Anguiano, 2013 IL App (1st) 113458, provides reasonable

guidance in this matter, having held that reasonable assistance is required from any attorney

under the Act, whether appointed or privately paid.

¶ 18    In this case, Cotto's private postconviction attorney knew or should have known that the

deadline for filing Cotto's postconviction petition was January 3, 2010.

¶ 19    The attorney filed the petition on September 28, 2011, with no explanation of what took

so long. His reliance on Cotto's affidavit that the envelope with the appellate court decision was

mailed on September 4, 2009, was bare-bones misplaced, since the attorney did not do anything

to provide further affidavits to explain why a mailing to Cotto's mother was insufficient, when

Cotto himself actually received the appellate court's Rule 23 order, or why the attorney did not

file the petition on time.

¶ 20    I would reverse and remand to the trial court for a second-stage appointment of counsel

to get all the facts necessary to properly determine which of Cotto's attorneys did or did not give

him reasonable assistance.




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