{ "id": 25366, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VON E. JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "2003-05-15", "docket_number": "No. 2-01-1431", "first_page": "1004", "last_page": "1009", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 1004" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "187 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131028 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "255" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0249-01" ] }, { "cite": "215 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294008 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0024-01" ] }, { "cite": "324 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256291 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0553-01" ] }, { "cite": "194 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096306 ], "year": 2000, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0135-01" ] }, { "cite": "195 Ill. 2d 506", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725372 ], "year": 2001, "pin_cites": [ { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0506-01" ] } ], "analysis": { "cardinality": 608, "char_count": 12343, "ocr_confidence": 0.778, "pagerank": { "raw": 9.004458969743937e-08, "percentile": 0.5033909312859552 }, "sha256": "ffc92d49bcc4fb95d900f6868081ffa99af28586c3a4956a4aff6419ec0d9c0e", "simhash": "1:2b2a463af3c01d78", "word_count": 1991 }, "last_updated": "2023-07-14T21:28:15.941926+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VON E. JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Winnebago County, defendant, Von E. Johnson, was found guilty of armed robbery (720 ILCS 5/18 \u2014 2 (West 1994)), unlawful possession of a weapon by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 1994)), aggravated assault (720 ILCS 5/12 \u2014 2(a)(1) (West 1994)), and aggravated battery of a senior citizen (720 ILCS 5/12 \u2014 4.6 (West 1994)). He was sentenced to concurrent 30-year terms of imprisonment for each offense. We affirmed defendant\u2019s convictions and sentences on direct appeal. People v. Johnson, No. 2 \u2014 99\u20140646 (2000) (unpublished order under Supreme Court Rule 23). Defendant later filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2000)). The trial court appointed counsel for defendant, but later granted the State\u2019s motion to dismiss the petition. On appeal, defendant argues that he did not receive reasonable assistance of counsel in the postconviction proceedings in conformity with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) and that he was entitled to an evidentiary hearing on two of his postconviction claims. We reverse and remand.\nDefendant\u2019s convictions were based on evidence of his participation in an attack on a 63-year-old man outside a restaurant in Rockford. Defendant\u2019s pro se postconviction petition, filed on May 7, 2001, raised four claims. First, defendant claimed that he received ineffective assistance of counsel at trial because his attorney failed to inform him that the State had offered a plea bargain under which defendant would receive a 20-year prison sentence. Second, defendant claimed that he received ineffective assistance of counsel because his attorney was aware that defendant\u2019s parents could supply an alibi but he failed to call them to testify at trial. Third, defendant claimed that in sentencing defendant, the trial court improperly considered \u201cunproven testimony\u201d of the victim\u2019s injuries. Defendant\u2019s fourth claim \u2014 that his sentence was an abuse of discretion \u2014 was essentially the same as the third claim. In support of the petition, defendant submitted his own affidavit averring that his attorney had failed to convey the State\u2019s plea offer to him and had refused to contact defendant\u2019s parents even though defendant told the attorney that his parents would testify that defendant was at home when the crimes occurred.\nOn June 6, 2001, the trial court ruled that defendant\u2019s petition \u201cis not frivolous, it does raise issues that may be of a constitutional nature.\u201d The court appointed attorney Frank Martinez to represent defendant, and the State later filed a motion to dismiss the petition, arguing that the issues raised in the petition could and should have been raised on direct appeal. On September 24, 2001, the date the motion to dismiss was originally set to be heard, the following exchange occurred:\n\u201cMR. MARTINEZ: It\u2019s a post-conviction filed by Mr. Johnson, who is in the Department of Corrections.\nI have conducted an investigation, ordered the transcript, reviewed the transcripts, interviewed defense counsel, Wendell Coates. I have interviewed a witness, Mr. Johnson, that would be an alibi witness that would have been the father, Lee Johnson.\nMy findings are the first two allegations in Mr. Johnson\u2019s post-conviction are completely contradicted by his own witness. I don\u2019t believe they will be included in a [sic] amended petition I\u2019m going to file.\nThe second two I don\u2019t think rise up to a constitutional violation; however, I will include them in an amended petition that the Court would review, and there is a motion to dismiss his petition pending. I assume it will apply to my amended motion.\nI think the remaining two I would like to set this on either status call or a short oral argument hearing date or not necessarily a court date, but an oral argument hearing date to resolve the matter.\nTHE COURT: And are you asking that your client be writted to the court for that?\nMR. MARTINEZ: Judge, I don\u2019t writ clients back unless there\u2019s an evidentiary hearing. Although I\u2019ve only spoken to him once on the phone, I don\u2019t have \u2014 so far I don\u2019t have any plans to go actually to speak to him, because I understand the issues, and I have been very thorough in reviewing the history of the case, so generally for those oral argument cases I just leave them there. If the Court wishes him here, I don\u2019t have a problem writting him, I don\u2019t have a problem issuing a writ.\nTHE COURT: I think it is best where there are issues presented such as you mentioned by your client he may have an interest in.\u201d The motion to dismiss was continued to November 19, 2001. No amended postconviction petition was filed, and defendant was not personally present at the November 19, 2001, hearing. At the hearing, attorney Martinez indicated that he had not filed an amended petition because after interviewing defendant\u2019s father and trial attorney he could not find reasonable grounds to amend the pro se petition. The trial court inquired whether postconviction counsel had learned whether a plea offer had been made to defendant. Counsel responded:\n\u201cI checked my notes, not only was the plea offer conveyed to Mr. Johnson, but in my conversation with Mr. Johnson\u2019s father, it was conveyed to Mr. Johnson\u2019s father and Mr. Johnson\u2019s father attempted to persuade Mr. Johnson to take the plea before the trial.\nSo as an officer of the court, I really can\u2019t proceed on something that I have found clearly is not the case.\u201d\nThe trial court granted the State\u2019s motion to dismiss on the basis that all of defendant\u2019s postconviction claims could have been raised on direct appeal. This appeal followed.\nWe begin our analysis with a brief summary of the general principles governing postconviction proceedings. As our supreme court has noted:\n\u201cThe Post-Conviction Hearing Act *** provides a remedy by which defendants may challenge their convictions or sentences for violations of federal or state constitutional law. [Citations.] *** The purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal. [Citations.] Thus, res judicata bars consideration of issues that were raised and decided on direct appeal, and issues that could have been presented on direct appeal, but were not, are considered waived. [Citations.]\u201d People v. Barrow, 195 Ill. 2d 506, 518-19 (2001).\nInitially, the trial court independently reviews a postconviction petition and may summarily dismiss the petition if it is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2000). Otherwise, the State must answer or move to dismiss the petition, and if the petition is not dismissed on the State\u2019s motion, it ordinarily proceeds to an evidentiary hearing. 725 ILCS 5/122 \u2014 5, 122 \u2014 6 (West 2000).\nWe first consider defendant\u2019s argument that he did not receive reasonable assistance from postconviction counsel. There is no constitutional right to counsel in postconviction proceedings (People v. McNeal, 194 Ill. 2d 135, 142 (2000)), but the Act affords an indigent defendant a statutory right to appointed counsel if his or her petition is not summarily dismissed (725 ILCS 5/122 \u2014 4 (West 2000)). The defendant is entitled to \u201creasonable assistance\u201d from counsel (People v. Robinson, 324 Ill. App. 3d 553, 556 (2001)), which includes compliance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) (Robinson, 324 Ill. App. 3d at 556). Under Rule 651(c) the record on appeal must \u201ccontain a showing, which may be made by the certificate of petitioner\u2019s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u201d 134 Ill. 2d R. 651(c).\nHere, the record does not show compliance with the requirement that counsel consult with defendant \u201cto ascertain his contentions of deprivation of constitutional rights.\u201d 134 Ill. 2d R. 651(c). Attorney Martinez did not file a certificate of compliance with Rule 651(c) and the only reference in the record to any communication with defendant is Martinez\u2019s statement in court that he had spoken to defendant only once on the telephone and had no plans \u201cto go actually to speak to him.\u201d The record does not reveal what was discussed during this single telephone conversation. The circumstances are similar to those in People v. Henderson, 215 Ill. App. 3d 24 (1991). In Henderson, the court held that postconviction counsel failed to comply with Rule 651(c)\u2019s consultation requirement where the record was \u201cdevoid of any indication that counsel consulted with [the defendant], other than defense counsel\u2019s general statement to the court at the postf ]conviction hearing that he spoke with the defendant.\u201d (Emphasis added.) Henderson, 215 Ill. App. 3d at 26. The Henderson court specifically noted that there was \u201cno indication that counsel\u2019s contact with the defendant was in any way to ascertain defendant\u2019s \u2018contentions of deprivation of constitutional rights.\u2019 \u201d Henderson, 215 Ill. App. 3d at 26, quoting 134 Ill. 2d R. 651(c). The same is true here. Accordingly, the cause must be remanded for counsel to comply with Rule 651(c).\nWe next consider defendant\u2019s argument that the trial court erred in dismissing the two claims in his petition alleging ineffective assistance of counsel. The trial court dismissed these claims on the basis that they could have been raised on defendant\u2019s direct appeal, but were not, and were therefore waived. The State acknowledges that the trial court\u2019s analysis was incorrect because these claims depended on facts outside the trial record and thus could not have been asserted on defendant\u2019s direct appeal. Nonetheless, the State urges us to affirm the trial court\u2019s judgment on the alternative basis that because post-conviction counsel advised the court that the claims were \u201cfactually nonmeritorious,\u201d the claims were \u201cde facto withdrawn from the defendant\u2019s petition.\u201d We disagree. Notwithstanding counsel\u2019s defeatism, we find no clear indication of an intent to withdraw defendant\u2019s pro se claims. More importantly, because the record does not reflect that counsel complied with his obligation to consult with defendant to ascertain his contentions of deprivation of constitutional rights, any such \u201cde facto withdrawal\u201d is tainted by counsel\u2019s failure to consult with his client. We also note that, given the procedural posture of the case, it was improper for counsel to volunteer the information that defendant\u2019s father and trial counsel would refute defendant\u2019s claims. The matter was before the court on the State\u2019s motion to dismiss, which is not designed to resolve factual disputes. Rather, where the State seeks dismissal of a postconviction petition instead of filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed and challenges only their legal sufficiency. People v. Ward, 187 Ill. 2d 249, 255 (1999). \u201cAll well-pleaded facts in the petition and in the supporting affidavits are to be taken as true.\u201d Ward, 187 Ill. 2d at 255.\nFor the foregoing reasons, we reverse the dismissal of defendant\u2019s postconviction claims alleging ineffective assistance of counsel and remand for an evidentiary hearing on those claims. On remand, counsel is directed to comply with the requirements of Rule 651(c) and, in particular, should amend defendant\u2019s petition, as appropriate, after consulting with defendant to ascertain his contentions of deprivation of constitutional rights.\nReversed and remanded with directions.\nGROMETER and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Alison J. Norwood, of Streamwood, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Stephen E. Norris and Patrick D. Daly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VON E. JOHNSON, Defendant-Appellant.\nSecond District\nNo. 2\u201401\u20141431\nOpinion filed May 15, 2003.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Alison J. Norwood, of Streamwood, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Stephen E. Norris and Patrick D. Daly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1004-01", "first_page_order": 1022, "last_page_order": 1027 }