A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Thursday, April 20.

People v. Addison, 2023 IL 127119

By Kerry J. Bryson, Office of the State Appellate Defender

Dion Addison was convicted of unlawful possession of a stolen motor vehicle, forgery, and theft, and was sentenced to 15 years of imprisonment. He filed a direct appeal, and appellate counsel successfully argued for additional days of credit against his sentence but did not raise any other issues. Addison subsequently filed a pro se post-conviction petition raising more than a dozen claims of constitutional error. He also alleged that appellate counsel was ineffective for not raising those claims on direct appeal. The trial court advanced the petition to the second stage and appointed counsel to represent Addison.

Appointed post-conviction counsel ultimately filed an amended petition advancing five of Addison’s claims. But, the amended petition did not raise appellate counsel’s ineffectiveness. The State filed a motion to dismiss arguing, among other things, that the claims in the amended petition were forfeited because they could have been raised on direct appeal but were not. The State also argued forfeiture at the hearing on its motion to dismiss, noting that the amended petition did not assert ineffective assistance of appellate counsel. Post-conviction counsel did not counter the State’s forfeiture arguments. After a hearing, the trial court granted the State’s motion to dismiss on the basis that Addison had not made a substantial showing of a constitutional violation. The court did not discuss the merits of the claims in its dismissal order.

On appeal, Addison argued that post-conviction counsel rendered unreasonable assistance in failing to argue ineffective assistance of appellate counsel. The appellate court agreed, and the Illinois Supreme Court affirmed that decision, remanding the matter to the trial court for further post-conviction proceedings.

It is well established that a post-conviction petitioner can avoid forfeiture for not raising claims that were available on direct appeal by arguing ineffective assistance of appellate counsel for failing to raise those claims. Here, however, not only did appointed post-conviction counsel fail to raise appellate counsel’s ineffectiveness, she actually amended Addison’s pro se post-conviction petition to omit such claims where he had specifically included them. By doing so, counsel made the pro se petition worse, resulting in procedural forfeiture.

The Illinois Supreme Court acknowledged that appointed counsel had filed an attorney certificate in compliance with Supreme Court Rule 651(c). Rule 651(c) requires that counsel consult with defendant to ascertain his contentions of constitutional error, examine the record, and make any amendments to the pro se petition necessary for adequate presentation of those claims. Counsel’s filing of a Rule 651(c) certificate creates a rebuttable presumption that she had provided reasonable assistance. But, that presumption was overcome here, where the record plainly established counsel’s deficient performance. Specifically, counsel identified several claims she believed were worth pursuing but did not include the necessary allegation of ineffective assistance of appellate counsel to overcome forfeiture

Where post-conviction counsel fails to provide reasonable assistance, remand for compliance with Rule 651(c) is required under People v. Suarez, 224 Ill. 2d 37 (2007). The Court rejected the State’s argument that Suarez is limited to those situations where counsel did not file a 651(c) certificate. A petitioner who rebuts a certificate is in the same position as one where no certificate was filed, and thus there is no reason to treat the two circumstances differently. Where post-conviction counsel fails to carry out the limited duties required by Rule 651(c), remand is required regardless of whether the claims in the petition have merit. It is premature to consider the merits of a defendant’s post-conviction claims where counsel has not complied with the obligation to shape those claims into their appropriate form.

Chief Justice Theis authored a dissent, joined by Justice Overstreet, concluding that the Court had dismissed Addison’s claims on their merits and not on the basis of forfeiture where the Court’s dismissal order stated that defendant failed to make a substantial showing of a constitutional violation, which is the second-stage standard for legal sufficiency. And, the dissent agreed that the claims were meritless and would have affirmed the dismissal on that basis.