                                  Illinois Official Reports

                                          Appellate Court




                             People v. Csaszar, 2013 IL App (1st) 100467




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      MARTIN CSASZAR, Defendant-Appellant.



District & No.               First District, Third Division
                             Docket No. 1-10-0467



Rule 23 Order filed          October 9, 2013
Rule 23 Order
withdrawn                    November 6, 2013
Rehearing denied             November 27, 2013
Opinion filed                December 4, 2013


Held                         The trial court’s dismissal of the postconviction petition defendant
(Note: This syllabus         filed with the assistance of his retained counsel was affirmed over his
constitutes no part of the   contention that his retained counsel failed to provide reasonable
opinion of the court but     assistance in the postconviction proceedings, since no rule, statute, or
has been prepared by the     constitutional provision requires the State to assure that defendant=s
Reporter of Decisions        retained counsel’s assistance is reasonable.
for the convenience of
the reader.)


Decision Under               Appeal from the Circuit Court of Cook County, No. 00-CR-1274; the
Review                       Hon. Catherine K. Haberkorn, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Anne E. Carlson, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Miles J. Keleher, and Joan F. Frazier, Assistant State’s Attorneys, of
                              counsel), for the People.


     Panel                    JUSTICE NEVILLE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hyman and Justice Mason concurred in the
                              judgment and opinion.




                                               OPINION


¶1         After a bench trial, the trial court found Martin Csaszar guilty of solicitation of murder for
       hire (720 ILCS 5/8-1.2 (West 1998)) and sentenced him to 30 years in prison. With the
       assistance of retained counsel, Csaszar filed a postconviction petition in 2008. The trial court
       granted the State’s motion to dismiss the petition without an evidentiary hearing. On appeal,
       Csaszar argues only that his retained counsel did not provide reasonable assistance with
       postconviction proceedings. Because we find that no constitutional provision, no statute, and
       no rule requires the State to assure the reasonable assistance of retained counsel in
       postconviction proceedings, we hold that Csaszar has not stated a cognizable claim for relief
       from the trial court’s judgment. Accordingly, we affirm.

¶2                                         BACKGROUND
¶3         In 1997, Monica Crisan hired Csaszar to drive a truck for Livdimon Enterprise
       Corporation. Csaszar’s employment ended in April 1998. Crisan invited Csaszar to come to
       her home to pick up his final paycheck on May 3, 1998. Crisan deducted from Csaszar’s wages
       an amount for damage to Livdimon’s truck. The amount of the paycheck upset Csaszar. After
       Csaszar left Crisan’s home, Crisan called police to report that Csaszar pulled out a gun and
       threatened her. Police arrested Csaszar and charged him with aggravated assault and unlawful
       use of a weapon. The trial court continued proceedings on the charges through 1998 and 1999.
¶4         Csaszar found work driving a truck for Jakacki Bag and Barrel Company. There he met
       James Anderson, who worked as a security officer for Jakacki. In 1999, Csaszar told Anderson
       about the criminal charges Crisan initiated against him. On December 16, 1999, the day before
       a hearing on the charges, Csaszar met with Anderson and Mark Shaffer. In a tape-recorded
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       conversation, Csaszar gave Shaffer $500 in exchange for Shaffer’s promise to kill Crisan.
       Shaffer, an undercover agent working for the Bureau of Alcohol, Tobacco and Firearms
       (ATF), gave a prearranged signal to Chicago police officers once Csaszar gave him the cash.
       The officers arrested Csaszar and prosecutors charged him with soliciting Shaffer and
       Anderson to murder Crisan. Csaszar spoke with an officer and an assistant State’s Attorney at
       the police station, but he did not sign any statement.
¶5         Before trial, defense counsel requested a behavioral clinical examination to evaluate
       Csaszar’s fitness to stand trial. The trial court granted the request. The psychiatrist who
       interviewed Csaszar found him fit to stand trial and legally sane at the time of the offense.
¶6         At the bench trial, Crisan testified that on May 3, 1998, after she gave Csaszar the
       paycheck he considered inadequate, he pulled out a gun and pointed it at her. As she looked for
       a phone, Csaszar said, “You want to call 9-1-1. *** By the time they will arrive, you’ll be
       dead.” Some neighbors passed by her home, and Csaszar ran off.
¶7         Anderson testified that Csaszar asked him to kill Crisan. When Anderson refused, Csaszar
       asked him to find someone else to kill Crisan. Anderson contacted an agent he knew who
       worked for ATF. That agent arranged for Shaffer to pose as a hitman and for recording of
       further contacts between Anderson, Shaffer and Csaszar.
¶8         Assistant State’s Attorney Fabio Valentini testified that Csaszar admitted he wanted Crisan
       dead because she brought charges against him. He had the idea of hiring a hitman, and he asked
       Anderson to help him.
¶9         Csaszar testified that Anderson sought out Csaszar’s company and offered to help him with
       several problems. When Csaszar told Anderson about the criminal charges, Anderson
       suggested killing Crisan. Anderson arranged for the hitman. Csaszar could not explain why he
       met with Anderson and Shaffer, and why he said what he said in the recorded conversation.
¶ 10       The trial court found Csaszar guilty of soliciting Shaffer to murder Crisan for hire and
       sentenced him to 30 years in prison. The appellate court affirmed the trial court’s judgment.
       People v. Csaszar, 375 Ill. App. 3d 929 (2007).
¶ 11       In 2006, Csaszar drafted a postconviction petition, but he never filed it. Instead, in 2007, he
       hired an attorney to prepare a postconviction petition for him. He sent the attorney his draft. In
       the draft, he claimed that the State tampered with the videotape of his conversation with
       Shaffer and Anderson. Csaszar said, in an affidavit, that he tried to back away from the deal,
       but Shaffer said that if Csaszar made him come all the way to the meeting for nothing, Shaffer
       would kill Csaszar and Csaszar’s family. Csaszar said that an inexplicable light appeared on
       the videotape, showing where the State cut several seconds from the conversation, despite the
       lack of any gap in the time signature shown on the tape.
¶ 12       On May 28, 2008, Csaszar’s retained counsel filed a postconviction petition in which he
       contended that at the time of the offense, Csaszar’s medications and depression left him unable
       to understand his own actions; Csaszar was not fit to stand trial; and his trial counsel provided
       ineffective assistance. Counsel for the postconviction proceedings specified four ways in
       which trial counsel provided ineffective assistance: (1) counsel did not obtain an assessment of
       Csaszar’s fitness to stand trial; (2) counsel did not obtain an assessment of Csaszar’s mental

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       health at the time of the offense; (3) counsel did not find out whether Csaszar understood his
       right to a jury trial; and (4) counsel failed to present evidence to show entrapment. Counsel
       supported the petition with affidavits from Csaszar’s mother, sister, and ex-wife concerning
       Csaszar’s mental health, a letter from a psychiatrist about the effects of Csaszar’s medications,
       and an affidavit from Csaszar. Counsel sent Csaszar a letter in which he explained that he
       omitted the allegation about tampering with the videotape because he and Csaszar’s sister
       watched the videotape and saw no indication of tampering.
¶ 13       The trial court permitted the State to file a motion to dismiss the petition. The trial court
       granted the motion to dismiss. Csaszar now appeals.

¶ 14                                             ANALYSIS
¶ 15        Csaszar does not contest the trial court’s decision to dismiss his postconviction petition.
       Instead, on this appeal, he argues only that his privately retained counsel did not provide the
       reasonable level of assistance required for postconviction proceedings. In particular, Csaszar
       claims that competent counsel should have further investigated the claim Csaszar made in his
       draft postconviction petition that the State tampered with the videotape of his conversation
       with Shaffer. The State responds that Csaszar had no constitutional right to the assistance of
       counsel in postconviction proceedings and no statute or rule required a reasonable level of
       assistance from privately retained counsel.
¶ 16        Csaszar admits that he has no constitutional right to assistance of counsel in postconviction
       proceedings. See People v. Guest, 166 Ill. 2d 381, 412 (1995). He relies on cases in which
       courts have held that counsel appointed to assist a defendant with postconviction proceedings
       must provide a reasonable level of assistance. See People v. Turner, 187 Ill. 2d 406, 410
       (1999); People v. Davis, 156 Ill. 2d 149, 162 (1993); People v. Johnson, 154 Ill. 2d 227,
       237-38 (1993); People v. Owens, 139 Ill. 2d 351, 359 (1990). In those cases, our supreme court
       interpreted the responsibilities under Supreme Court Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Feb.
       6, 2013)) of counsel appointed to assist defendants with postconviction petitions. Turner, 187
       Ill. 2d at 410; Davis, 156 Ill. 2d at 162; Johnson, 154 Ill. 2d at 238; Owens, 139 Ill. 2d at 359.
       But 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. People v.
       Richmond, 188 Ill. 2d 376, 382-83 (1999); People v. Kegel, 392 Ill. App. 3d 538, 540-41
       (2009); People v. Johnson, 314 Ill. App. 3d 444, 454 (2000).
¶ 17        Csaszar recognizes the authorities limiting the reach of Rule 651(c). However, he argues
       that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) requires a
       reasonable level of assistance from retained counsel. He cites in support cases in which the
       court held that the Act itself, before the adoption of Rule 651, required reasonable assistance of
       counsel. See People v. Wales, 46 Ill. 2d 79 (1970); People v. Ford, 40 Ill. 2d 440 (1968);
       People v. Barnes, 40 Ill. 2d 383 (1968); People v. Wilson, 40 Ill. 2d 378 (1968); People v.
       Tyner, 40 Ill. 2d 1 (1968); People v. Slaughter, 39 Ill. 2d 278, 285 (1968). These cases
       “concer[n] the quality of representation required of counsel appointed to represent an indigent
       prisoner in proceedings under the Post-Conviction Hearing Act.” Slaughter, 39 Ill. 2d at 279.
       This limit on the cases comports with the Act, which establishes the State’s duty to provide
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       counsel only “[i]f the petitioner is without counsel and alleges that he is without means to
       procure counsel.” 725 ILCS 5/122-4 (West 2006). The Act does not mention the duties of
       counsel retained by a petitioner who has the means to procure counsel.
¶ 18       Here, as in Kegel, “defendant seeks to disengage the guarantee of reasonable assistance
       from the underlying right to counsel such that the former can exist independently of the latter.”
       Kegel, 392 Ill. App. 3d at 541. Like the Kegel court, we find no authority in either the Act or
       case law to support the claim that the State must assure that a defendant obtains from retained
       counsel reasonable assistance in postconviction proceedings. We find that the State has no
       duty to provide counsel, and no duty to provide reasonable assistance of counsel, for any
       petitioner able to hire his own counsel. See 725 ILCS 5/122-1 et seq. (West 2006).
¶ 19       In a footnote to his brief, Csaszar argues that the General Assembly’s decision to afford
       indigent petitioners reasonable assistance of counsel, but not to assure reasonable assistance to
       postconviction petitioners who hire their own attorneys, violates his right to equal protection of
       the laws. “In applying the Equal Protection Clause to most forms of state action, we thus seek
       only the assurance that the classification at issue bears some fair relationship to a legitimate
       public purpose.” Plyler v. Doe, 457 U.S. 202, 216 (1982) “Support of the poor has long been
       recognized as a public purpose [citation].” Carmichael v. Southern Coal & Coke Co., 301 U.S.
       495, 515 (1937). States do not violate the equal protection clause when they provide benefits to
       indigents that they do not provide to persons with sufficient means to purchase the benefits.
       Carmichael, 301 U.S. at 515. The classification of prisoners as indigent or non-indigent, and
       the provision of counsel only to the indigent, bears a fair relationship to a legitimate public
       purpose of providing assistance of counsel for postconviction petitioners unable to retain
       private counsel. See Plyler, 457 U.S. at 216. The State’s decision to provide competent counsel
       only for indigent defendants, while leaving postconviction petitioners who can afford counsel
       responsible for finding competent counsel, does not violate the right of the nonindigent to
       equal protection of the laws.
¶ 20       Csaszar cites People v. Hayes, 49 Ill. 2d 298 (1971), Cuyler v. Sullivan, 446 U.S. 335
       (1980), and McCoy v. Court of Appealsof Wisconsin, District 1, 486 U.S. 429 (1988), as
       authority requiring the State to ensure the competent assistance of privately retained counsel
       for postconviction proceedings. In Hayes, the postconviction petitioner alleged that the
       counsel he retained to assist with postconviction proceedings failed to provide reasonable
       assistance. The Hayes court rejected the claim without addressing the issue of whether the
       State bears any responsibility for assuring that a postconviction petitioner obtains reasonable
       assistance from counsel the petitioner hired. Hayes, 49 Ill. 2d at 302-04. The Cuyler Court held
       only that the constitutional right to effective assistance of counsel at trial applied to both
       appointed and retained counsel. Cuyler, 446 U.S. at 344-45. The constitution does not require
       assistance of counsel for postconviction proceedings. See Guest, 166 Ill. 2d at 412.
¶ 21       Finally, Csaszar quotes the McCoy Court, which said:
               “Every advocate has essentially the same professional responsibility whether he or she
               accepted a retainer from a paying client or an appointment from a court. The appellate
               lawyer must master the trial record, thoroughly research the law, and exercise
               judgment in identifying the arguments that may be advanced on appeal. In preparing
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               and evaluating the case, and in advising the client as to the prospects for success,
               counsel must consistently serve the client’s interest to the best of his or her ability.”
               McCoy, 486 U.S. at 438.
       Nothing in McCoy suggests that the State bears responsibility for assuring that the client
       receives reasonable assistance from his privately retained attorney.
¶ 22       In accord with Kegel and McCoy, we find that the attorney has a duty to provide the
       petitioner with a reasonable level of assistance with postconviction proceedings. Kegel, 392 Ill.
       App. 3d at 541. The Kegel court held:
               “An attorney who fails to provide competent representation is potentially subject to
               disciplinary action as well as to liability for professional malpractice.
                    *** We note, however, that our holding does not necessarily foreclose defendant
               from raising *** in a subsequent petition under the Act [the issue he sought to raise as
               proof that his retained counsel failed to provide reasonable assistance]. To do so,
               however, defendant will have to obtain leave from the trial court by establishing both
               cause for his failure to raise the issue in his first petition and prejudice resulting from
               that failure. 725 ILCS 5/122-1(f) (West 2006). We express no view on whether the
               quality of postconviction counsel’s performance could establish cause or whether it
               resulted in any prejudice.” (Emphasis in original.) Kegel, 392 Ill. App. 3d at 541-42.
¶ 23       We find the reasoning of Kegel fully applicable here. Csaszar may seek recourse against
       his attorney for the attorney’s alleged failings and he may bring a successive postconviction
       petition, in which he argues that his retained counsel’s failings show cause for his failure to
       raise meritorious issues in his initial postconviction petition. Like the Kegel court, we express
       no opinion as to whether postconviction counsel’s alleged failings can establish cause for the
       failure of the initial postconviction petition to raise the issues Csaszar seeks to raise.

¶ 24                                         CONCLUSION
¶ 25       Because the Act does not require reasonable assistance of retained counsel, we find that
       Csaszar has not stated a cognizable claim for relief on this appeal. Csaszar does not challenge
       the trial court’s decision to dismiss the postconviction petition he filed with the assistance of
       retained counsel. Accordingly, we affirm the trial court’s judgment.

¶ 26      Affirmed.




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