                                  Illinois Official Reports

                                          Appellate Court



                              People v. Cotto, 2015 IL App (1st) 123489



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


District & No.               First District, Third Division
                             Docket No. 1-12-3489


Filed                        February 11, 2015


Held                         The second-stage dismissal of defendant’s postconviction petition was
(Note: This syllabus         affirmed, despite defendant’s contentions that his privately retained
constitutes no part of the   postconviction counsel did not provide him with reasonable assistance
opinion of the court but     because he failed to contest the State’s assertion that the petition was
has been prepared by the     untimely due to his culpable negligence and that his case should be
Reporter of Decisions        remanded for a new second-stage hearing with different counsel, since
for the convenience of       defendant failed to explain what additional steps should have been
the reader.)                 take to overcome the late filing.



Decision Under               Appeal from the Circuit Court of Cook County, No. 08-CR-5917; the
Review                       Hon. Shelley Sutker-Dermer, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Carson R. Griffis, all of
Appeal                       State Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             Joan F. Frazier, and Joseph A. Alexander, Assistant State’s Attorneys,
                             of counsel), for the People.
     Panel                      JUSTICE LAVIN delivered the judgment of the court, with opinion.
                                Justice Hyman concurred in the judgment and opinion.
                                Presiding Justice Pucinski dissented, with 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 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
       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.


             1
            The record shows that defendant retained the same attorney at trial and on direct appeal.
             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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¶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 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, ¶ 25,
       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 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

                                                    -3-
       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.

¶ 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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