Defendant filed several postconviction petitions; did counsel have to file a Rule 651 certificate after each amended petition? Appellate court said no.
People v. Bell, 2014 IL App (3d) 120637 (08/21/2014).
Did appointed counsel have to go back, meet defendant again and file a Rule 651(c) certificate for the new allegations raised by Defendant?
Defendant is serving 55 years for attempted first degree murder. Defendant filed a pro se postconviction petition which advanced to second-state proceedings.
Postconviction counsel was appointed and filed an amended petition accompanied by a Rule 651(c) certificate (Ill. S. Ct. R. 651(c)).
Counsel informed the court that “[defendant] has filed a number of additional matters relating to his case that I need to review and determine whether or not I intend to adopt them, if I need to file any 651(c).” The court granted counsel’s request for time and further ruled that no additional pro se motions would be considered for the purposes of that request. Defendant nevertheless filed his sixth pro se supplemental motion the next month.
Counsel then informed the court that he would not be adopting any of defendant’s prose filings, and the court struck those pleadings. The trial court struck defendant’s pro se amendments and subsequently dismissed the petition.
Illinois Compiled Statutes Post-Conviction Hearing Act section 725 ILCS 5/122-1 contains a legislative right to counsel.
The Act requires that counsel provide “a reasonable level of assistance” to petitioners in postconviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42 (2007).
To ensure that this level of assistance is met, Illinois Supreme Court Rule 651(c) imposes three mandatory requirements on postconviction counsel. The rule requires appointed counsel to certifying that she:
(1) consulted with defendant by mail and in person to ascertain his contentions of deprivation of constitutional rights
(2) examined the record of proceedings at the trial; and
(3) made any amendments to defendant’s pro se petition as were necessary for adequate presentation of defendant’s contentions.
See also People v. Mendoza, 402 Ill. App. 3d 808 (2010).
Defendant’s actions in the present case demonstrate why the “petitioner’s claims” contemplated by Illinois Supreme Court Rule 651(c), must be limited to those in the original pro se petition.
The arguments raised by defendant in his original pro se petition were deemed by the court to be nonfrivolous and worthy of appointed counsel’s resources. The appointment of counsel should be a guarded step.
When an appointment is made it is implicit that the issues raised at the time merited the appointment. That does not mean that any subsequent amendment should have the same level of importance by the court.
Defendant’s subsequently raised issues also cannot be said to relate back to his initial pro se petition simply because they were characterized as supplements or amendments to that petition. At the time that each of defendant’s six pro se supplemental petitions were filed, he was represented by appointed counsel.
“A trial court has no responsibility to entertain a defendant’s pro se motions during the time he is represented by competent counsel, and a represented defendant ‘must not be permitted to proceed unfettered, to file a stream of pro se motions.'” People v. Stevenson, 2011 IL App (1st) 093413, ¶ 31 (quoting People v. Pondexter, 214 Ill. App. 3d 79, 88 (1991)).
The trial court properly struck defendant’s pro se supplemental pleadings. Requiring that appointed counsel respond to every contact made by incarcerated petitioners would be inefficient at best and impossible at worst.
Appointed counsel was in full compliance with Rule 651(c).