                                      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




                                               -5­
       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




                                               -6­
       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




                                                -7­
       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.




                                                 -8­
¶ 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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