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                                  Supreme Court                               Date: 2019.06.13
                                                                              13:09:26 -05'00'



                          People v. Johnson, 2018 IL 122227




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:               GRANVILLE S. JOHNSON, Appellant.



Docket No.           122227



Filed                November 29, 2018



Decision Under       Appeal from the Appellate Court for the Fourth District; heard in that
Review               court on appeal from the Circuit Court of Champaign County, the
                     Hon. John R. Kennedy, Judge, presiding.



Judgment             Reversed and remanded.


Counsel on           James E. Chadd, State Appellate Defender, Jacqueline L. Bullard,
Appeal               Deputy Defender, and Sheril J. Varughese, Assistant Appellate
                     Defender, of the Office of the State Appellate Defender, of
                     Springfield, for appellant.

                     Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
                     Solicitor General, and Michael M. Glick and Retha Stotts, Assistant
                     Attorneys General, of Chicago, of counsel), for the People.
     Justices                  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 of 1963 (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 (Ill. Jan. 30, 2013)), and the United States Supreme Court denied his petition for writ
       of certiorari (Johnson v. Illinois, 571 U.S. ___, 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 “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



           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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       same conclusion, People v. Kegel, 392 Ill. App. 3d 538 (2009), and People v. Garcia-Rocha,
       2017 IL App (3d) 140754, 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.
¶ 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 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.

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       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 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).

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       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 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.
¶ 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,

                                                     -6-
       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.

¶ 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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