                                  Illinois Official Reports

                                          Appellate Court



                             People v. Yaworski, 2014 IL App (2d) 130327



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      GLENN A. YAWORSKI, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-13-0327


Filed                        October 6, 2014


Held                         Where defendant filed a pro se postconviction petition challenging the
(Note: This syllabus         enhancement of his conviction for driving under the influence of
constitutes no part of the   alcohol to a Class 2 felony based on his prior convictions and the same
opinion of the court but     public defender who represented defendant at trial was appointed for
has been prepared by the     defendant in the postconviction proceedings, but the trial court
Reporter of Decisions        dismissed the petition on the ground that defendant’s allegations that
for the convenience of       the enhancement was based on several prior convictions listed in his
the reader.)                 presentence report that were actually attributable to other persons had
                             been decided in his direct appeal and were barred by res judicata, the
                             appellate court agreed with defendant’s claim on his appeal from the
                             dismissal of his petition that his postconviction counsel was
                             ineffective and was acting under a conflict of; therefore, the dismissal
                             was vacated and the cause was remanded for further proceedings with
                             the appointment of counsel other than the public defender who
                             represented defendant at his trial.



Decision Under               Appeal from the Circuit Court of De Kalb County, No. 05-CF-661; the
Review                       Hon. Robbin J. Stuckert, Judge, presiding.



Judgment                     Vacated and remanded with directions.
     Counsel on               Thomas A. Lilien and Paul J. Glaser, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Richard H. Schmack, State’s Attorney, of Sycamore (Lawrence M.
                              Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE JORGENSEN delivered the judgment of the court, with
                              opinion.
                              Justice McLaren concurred in the judgment and opinion.
                              Justice Spence dissented, with opinion.

                                               OPINION

¶1          Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A.
       Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of
       section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West
       2004)) and driving while his license was revoked (DWLR) (625 ILCS 5/6-303(a) (West
       2004)). Defendant received a Class 2 felony sentence of 3½ years’ imprisonment for DUI
       pursuant to section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-1)(3) (West 2004)). The
       trial court vacated the DWLR conviction. In an earlier appeal, we affirmed defendant’s DUI
       conviction and his sentence for that offense. People v. Yaworski, 2011 IL App (2d) 090785
       (Yaworski I). In addition, we reinstated defendant’s DWLR conviction. Thereafter, on
       February 29, 2012, defendant, while on mandatory supervised release (MSR), filed a pro se
       petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)),
       challenging the enhancement of the offense of DUI to a Class 2 felony. The trial court
       appointed the office of the De Kalb County public defender to represent defendant in the
       postconviction proceedings. Assistant Public Defender Charles Criswell appeared on
       defendant’s behalf. Criswell had represented defendant at trial. The State successfully moved
       to dismiss defendant’s petition and this appeal followed. Defendant argues that, because the
       petition claimed that he had not received the effective assistance of counsel at trial, Criswell
       labored under a conflict of interest in the postconviction proceedings. We agree, and we
       therefore vacate and remand for further proceedings.
¶2          As pertinent here, section 11-501(c-1)(3) of the Code provides that a fourth or subsequent
       DUI is a nonprobationable Class 2 felony if the offense occurred while the offender’s driving
       privileges were suspended or revoked for a violation of section 11-501(a) of the Code. After
       the jury returned its verdict at defendant’s trial, the trial court ordered the preparation of a
       presentencing investigation report (PSI). The PSI showed that defendant had an extensive
       criminal history that included five prior DUI convictions. (A sixth prior DUI conviction had
       been reversed.) At his sentencing hearing, defendant claimed that the PSI was inaccurate and
       that it listed 24 offenses of which he had not been convicted, among them a 1989 DUI that
       occurred in Cook County. In Yaworski I, defendant argued that the trial court erred in relying


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     on the PSI to enhance his offense to a Class 2 felony. He noted that the PSI indicated that the
     1989 Cook County DUI resulted in the revocation of his license in 2005. Similarly, the PSI
     listed a 1989 McHenry County DUI that resulted in the revocation of his license in 2005.
     Defendant argued that “ ‘[t]he unlikelihood of DUI tickets languishing for 16 years before
     dispositions gives reason to doubt the accuracy of both listings specifically, and the rest of the
     listings in general.’ ” Yaworski I, 2011 IL App (2d) 090785, ¶ 4. We rejected the argument,
     observing that defendant’s driving abstract (which was prima facie evidence of the facts set
     forth therein) indicated that defendant had five prior DUI convictions and that, even if the 1989
     Cook and McHenry County offenses had not occurred, the DUI in the present case would still
     be defendant’s fourth. Id. ¶¶ 6-7.
¶3        In his pro se postconviction petition, defendant alleged that “[s]ince the date of his release
     from the Department of Corrections, [defendant] has discovered documentation to establish his
     claim that several of what were listed in his presentence report as being prior convictions of his
     were in fact attributable to other individuals.” Defendant added that “[t]his documentation
     establishes that the petitioner was denied his rights to due process of law and effective
     assistance of trial counsel.” (Emphasis added.) Criswell did not amend the pro se petition, but
     he did submit to the court a “mug shot” of the arrestee in one of the cases listed in defendant’s
     PSI. Criswell argued that the mug shot was a photograph of someone other than defendant. In
     its written order granting the State’s motion to dismiss the petition, the trial court appeared to
     conclude that the issue raised in defendant’s petition had been decided on direct appeal and
     was thus barred under the doctrine of res judicata. See, e.g., People v. Davis, 2014 IL 115595,
     ¶ 13.
¶4        At issue in this appeal is whether it was error for defendant’s trial attorney, Criswell, to
     represent defendant in postconviction proceedings initiated by a pro se petition asserting a
     claim of ineffective assistance of counsel at trial. Before considering that issue, we must first
     address the State’s argument that this appeal is moot. “An appeal is considered moot where it
     presents no actual controversy or where the issues involved in the trial court no longer exist
     because intervening events have rendered it impossible for the reviewing court to grant
     effectual relief to the complaining party.” In re J.T., 221 Ill. 2d 338, 349-50 (2006). It is
     undisputed that defendant has now fully served his sentence. The State argues that “[t]he only
     ultimate relief possible here for defendant would be a reduction of his sentence, but having
     already served that sentence, no court could give defendant effectual relief.” We disagree.
     Further postconviction proceedings could conceivably result in reduction of the degree of the
     offense, which stands now as a Class 2 felony. “Exceptions to the mootness doctrine apply
     where: (1) the case presents a question of public import that will likely recur and the answer to
     that question will provide guidance to public officers in the performance of their duties; (2) the
     case involves events of short duration that are capable of repetition yet evading review; and (3)
     collateral consequences of the order could return to plague the [defendant] in some future
     proceeding or could affect other aspects of the [defendant’s] life.” In re Dawn H., 2012 IL App
     (2d) 111013, ¶ 13. The third exception applies here. The conviction of a Class 2 felony could
     “plague” defendant in some future proceeding. For example, it might make him eligible for an
     extended-term sentence if he is convicted of a criminal offense in the future. See 730 ILCS




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     5/5-5-3.2(b)(1) (West 2012). Accordingly, the appeal is properly before us, and we turn to the
     merits.1
¶5       Under the Act, a person imprisoned for a crime may mount a collateral attack on his
     conviction and sentence based on violations of his constitutional rights. People v. Erickson,
     183 Ill. 2d 213, 222 (1998). Proceedings under the Act are divided into three stages. People v.
     Gaultney, 174 Ill. 2d 410, 418 (1996). During the first stage, the trial court independently
     examines the petition within 90 days after it is filed and docketed. 725 ILCS 5/122-2.1(a)
     (West 2012). If the petition is frivolous or patently without merit, it will be summarily
     dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2012). If the petition is not dismissed at the first
     stage, it proceeds to the second stage, at which an indigent defendant is entitled to appointed
     counsel, the petition may be amended, and the State may answer or move to dismiss the
     petition. Gaultney, 174 Ill. 2d at 418. A petition that is not dismissed at the first or second stage
     advances to the third stage, at which an evidentiary hearing is held. Id.
¶6       The right to counsel when a postconviction petition advances to the second stage (as
     defendant’s petition did here) is statutory, not constitutional. People v. Davis, 382 Ill. App. 3d
     701, 709 (2008). Under the Act, “defendants are entitled to a reasonable level of assistance, but
     are not assured of receiving the same level of assistance constitutionally guaranteed to criminal
     defendants at trial.” People v. Kegel, 392 Ill. App. 3d 538, 541 (2009). “The Act impose[s]
     duties on postconviction counsel to ensure that a prisoner’s complaints [are] adequately
     presented, and the statute envision[s] that the attorney appointed to represent an indigent
     person [will] ascertain the basis of his complaints, shape those complaints into appropriate
     legal form and present the [defendant’s] constitutional contentions to the court.” People v.
     Schlosser, 2012 IL App (1st) 092523, ¶ 18.
¶7       In People v. Hardin, 217 Ill. 2d 289 (2005), our supreme court developed a procedure for
     determining whether an attorney from the public defender’s office may represent a defendant
     in proceedings on a postconviction petition alleging that another attorney from the same office
     failed to provide effective assistance at trial. In Hardin, our supreme court stated:
                  “The right to effective assistance of trial counsel comes from the sixth amendment
              and includes the correlative right to conflict-free representation. [Citations.] There is
              no corresponding constitutional right to effective assistance of postconviction counsel.
              [Citation.] The right to assistance of counsel in postconviction proceedings is a matter
              of legislative grace, and a defendant is guaranteed only the level of assistance provided
              by the Post-Conviction Hearing Act. [Citation.] We have labeled that level
              ‘reasonable’ assistance. [Citation.]
                  However, when a defendant’s appointed postconviction attorney is called upon to
              assert that the defendant’s appointed trial attorney was ineffective, the distinction
              between constitutional and statutory rights makes no difference. If postconviction
              counsel is appointed to mold the defendant’s allegations into legally cognizable shapes
              [citation], that counsel must be as conflict-free as trial counsel. [Citation.] The right to
              reasonable assistance of postconviction counsel includes the correlative right to
              conflict-free representation. [Citation.]” (Emphasis added.) Id. at 299-300.


         1
          Further, as noted above, the parties agree that defendant was serving his term of MSR when he
     filed the postconviction petition, and, therefore, he has standing.

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¶8         The Hardin court explained that, if a potential conflict of interest comes to the trial court’s
       attention early in proceedings under the Act, the trial court has a duty to investigate.
       Id. at 302-03. The Hardin court elaborated as follows:
                    “In the context of a potential conflict between two public defenders, the conflict
                issue will normally be raised by the defendant. *** The defendant must sketch, in
                limited detail, a picture of how the working relationship between the public defenders
                created an appearance of impropriety. [Citation.] Relevant factors include whether the
                two public defenders were trial partners in the defendant’s case [citations]; whether
                they were in hierarchical positions where one supervised or was supervised by the other
                [citations]; or whether the size, structure, and organization of the office in which they
                worked affected the closeness of any supervision [citations].” Id. at 303.
¶9         Hardin entails a case-by-case inquiry when a different attorney from the public defender’s
       office is appointed to advance a claim that trial counsel was ineffective. However, the factors
       identified in Hardin essentially bear on how closely postconviction counsel’s interests are
       aligned with trial counsel’s: the more closely aligned, the more likely that a potential conflict
       of interest will be found to exist. When trial counsel and postconviction counsel are one and
       the same, the interests are identical and the potential conflict of interest is inherent.
¶ 10       Therefore, in our view, it is improper to appoint an attorney as postconviction counsel to
       pursue a claim that his or her own performance as trial counsel was incompetent. We hasten to
       add that our holding is limited to cases where trial counsel’s competence is at issue, as
       distinguished from cases where an ineffectiveness claim is based on external factors. See
       People v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 17 (“Defendant alleged that his trial
       counsel was unable to provide effective assistance because the trial court and the prison failed
       to allow communication with counsel and to allow access to discovery materials.”).
¶ 11       The State argues that it was not a per se conflict of interest for Criswell to represent
       defendant in postconviction proceedings in which the competence of Criswell’s performance
       as trial counsel was at issue. According to the State, absent a per se conflict, People v. Moore,
       207 Ill. 2d 68 (2003), provides that defendant’s right to counsel other than Criswell depends on
       the merits of the underlying ineffective-assistance-of-counsel claim. The issue in Moore was
       whether trial counsel could continue to represent the defendant in proceedings on the
       defendant’s posttrial motion. The defendant in Moore had moved, pro se, for appointment of
       new counsel. As described by the Moore court, the defendant’s motion complained that “ ‘no
       line of meaningful communication was established’ between defendant and trial counsel,
       whose ‘entire attitude’ showed that counsel was unconcerned with the defense of the case.”
       Id. at 77. The Moore court held that “when a defendant presents a pro se posttrial claim of
       ineffective assistance of counsel, the trial court should first examine the factual basis of the
       defendant’s claim.” Id. at 77-78. The trial court should appoint new counsel “if the allegations
       show possible neglect of the case.” Id. at 78. On the other hand, the trial court is not obligated
       to appoint new counsel if it finds that “the claim lacks merit or pertains only to matters of trial
       strategy.” Id.
¶ 12       The Moore court described the procedure to be followed when the defendant files a pro se
       posttrial motion claiming ineffective assistance of counsel. Here, in contrast, defendant’s
       claim of ineffective assistance of counsel appears in a pro se petition under the Act. Although
       the State argues that defendant here is “[e]ssentially *** no different from a defendant who
       makes a pro se posttrial allegation of ineffective assistance of counsel,” the State cites no case,

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       nor are we aware of any, extending the procedure described in Moore to proceedings under the
       Act.
¶ 13       The State maintains that this case “is not a case where the allegations of ineffective
       assistance [of counsel] are impossible to determine without further investigation by
       independent counsel.” The State’s assertion flies in the face of the trial court’s decision to
       appoint counsel; that decision signifies that the trial court found that the petition was not
       frivolous or patently without merit. What the State seeks by virtue of its argument is, for all
       practical purposes, to relitigate the first-stage decision in defendant’s favor, so as to
       retroactively deprive him of his right to counsel under the Act. We are aware of no precedent
       that would permit us to do so. Moreover, if that approach were permissible in postconviction
       proceedings, the analysis in Hardin might often yield the incongruous result that the assistant
       public defender who represented the defendant at trial could serve as postconviction counsel
       under circumstances where a different public defender would be disqualified from doing so.
¶ 14       Once a pro se postconviction petition has cleared the first-stage hurdle, the Act affords the
       defendant the right to an attorney with undivided loyalty who, as noted, will “ascertain the
       basis of his complaints, shape those complaints into appropriate legal form and present the
       [defendant’s] constitutional contentions to the court.” Schlosser, 2012 IL App (1st) 092523,
       ¶ 18. Precisely what shape defendant’s petition might have taken if an attorney other than
       Criswell had represented defendant in the postconviction proceedings is a matter of conjecture.
       We decline to speculate whether Criswell failed to amend the petition because there was no
       good-faith basis for arguing his own incompetence or, conversely, because there was a
       good-faith basis for doing so but Criswell was inhibited by self-interest.
¶ 15       For the foregoing reasons, we vacate the dismissal of defendant’s petition and remand for
       further proceedings. On remand, the court shall appoint an attorney other than Criswell to
       represent defendant.

¶ 16      Vacated and remanded with directions.

¶ 17       JUSTICE SPENCE, dissenting.
¶ 18       I respectfully dissent. As the majority states, the issue on appeal is whether it was error for
       defendant’s trial attorney, Criswell, to represent defendant in postconviction proceedings after
       defendant filed a pro se petition alleging ineffective assistance of counsel. Supra ¶ 4. The
       majority concludes that it is improper to appoint an attorney as postconviction counsel to
       pursue a claim that his or her own performance as trial counsel was incompetent, because the
       potential conflict of interest is “inherent.” Supra ¶ 9. While I agree with the majority that the
       better practice is to have an attorney other than the trial attorney represent the defendant in
       postconviction proceedings when the defendant raises a claim of ineffective assistance of
       counsel, I see no reason for the blanket rule established by the majority, especially where the
       defendant has not suggested a potential conflict of interest to the trial court.
¶ 19       Defendants are guaranteed “reasonable” assistance in postconviction proceedings
       (People v. Hardin, 217 Ill. 2d 289, 299 (2005)) and not the same level of assistance
       constitutionally guaranteed to criminal defendants at trial (People v. Kegel, 392 Ill. App. 3d
       538, 541 (2009)). For this reason, I am persuaded by the State’s reliance on People v. Moore,
       207 Ill. 2d 68, 75 (2003), where the issue was whether trial counsel could continue to represent


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       the defendant on his posttrial motion after he filed a pro se posttrial claim of ineffective
       assistance of counsel. In Moore, the supreme court held that in such a situation new counsel is
       not automatically required; rather, the trial court should first examine whether the defendant’s
       claim lacks merit. Id. at 77-78. If the claim lacks merit, then the court need not appoint new
       counsel and may deny the pro se motion. Id. at 78. If this is the approach in criminal trial
       proceedings, where defendants are guaranteed constitutionally effective assistance as opposed
       to reasonable assistance, I see no reason why it should not be the approach here.
¶ 20        In this case, the trial court properly determined that defendant’s claim lacked merit. A
       claim of ineffective assistance of counsel is assessed under the standards articulated in
       Strickland v. Washington, 466 U.S. 668 (1984). People v. Brown, 236 Ill. 2d 175, 185 (2010).
       The failure to establish either prong of Strickland is fatal to the claim. People v. Clendenin, 238
       Ill. 2d 302, 317-18 (2010). If it is easier to dispose of such a claim on the basis that it lacks
       sufficient prejudice, then the court may proceed directly to the second prong and need not
       address whether counsel’s performance was deficient. People v. Givens, 237 Ill. 2d 311, 331
       (2010).
¶ 21        In defendant’s pro se petition for postconviction relief, defendant provided some evidence
       that someone other than himself used his identity for two traffic cases, and he submitted copies
       of booking photos for those two offenses. Both of the offenses were traffic offenses other than
       DUI. Defendant has raised questions about two of the five prior DUI convictions set forth in
       the PSI, but has never contested the other three DUI convictions. Even assuming, for the sake
       of argument, that we disregard the two DUI convictions defendant has contested, defendant
       still has three prior DUI convictions that he has never contested and does not now contest. I
       would take defendant at his word that he has the three prior DUI convictions, because he
       knows his history better than anyone. For purposes of the sentence in this case, defendant
       remains with at least three unchallenged prior DUI convictions, which, as pointed out by the
       majority, result in this conviction being defendant’s fourth conviction and therefore still a
       nonprobationable Class 2 felony. Defendant received a Class 2 felony sentence. Accordingly,
       he has failed to establish the prejudice prong of Strickland, and thus his ineffective-
       assistance-of-counsel claim fails.
¶ 22        As a final matter, I do not believe that Hardin, the case relied upon by the majority, dictates
       a different outcome. In Hardin, the issue was whether the trial court should have conducted an
       inquiry to ensure that there was no conflict of interest between the defendant’s postconviction
       public defender and a different trial public defender. Hardin, 217 Ill. 2d at 299. While I agree
       with the majority that Hardin entails a case-by-case inquiry as to how closely postconviction
       counsel’s interests are aligned with trial counsel’s, Hardin still requires a defendant to present
       facts suggesting a conflict of interest to the trial court. Id. at 302-03. Admittedly, the pleading
       threshold is low (id. at 303), but at no time in the proceedings below did defendant in this case
       suggest a conflict of interest based on having trial counsel serve as postconviction counsel.
       Absent defendant’s suggestion of a conflict of interest to the trial court, I believe that it is a
       stretch for the majority to presume one. In my opinion, Hardin is distinguishable and does not
       lead to the conclusion that the potential conflict of interest in this case is inherent.
¶ 23        As stated above, I believe that our supreme court’s decision in Moore, rather than Hardin,
       provides the sounder approach in this case. Because the trial court correctly determined that
       defendant’s claim lacked merit, I would affirm the dismissal of defendant’s postconviction
       petition.

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