Opinion filed June 7, 2016 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0455 v. ) Circuit No. 11-CF-906 ) JOSEPH W. GROSZEK, ) Honorable ) Edward A. Burmila, Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 The defendant, Joseph W. Groszek, appeals from the second-stage dismissal of his

postconviction petition. On appeal, the defendant argues that reversal is warranted because

postconviction counsel provided unreasonable assistance.

¶2 FACTS

¶3 The defendant was charged by indictment with three counts of predatory criminal sexual

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)); two counts of criminal sexual assault

(720 ILCS 5/12-13(a)(3) (West 2010)); and six counts of aggravated criminal sexual abuse (720

ILCS 5/12-16(b) (West 2010)). ¶4 On December 30, 2011, the defendant appeared for a plea hearing. At the time, the

defendant was represented by private counsel. During the hearing, the defendant agreed to plead

guilty to three counts of predatory criminal sexual assault of a child in exchange for the State's

agreement to nolle prosequi the remaining counts. During the State's presentation of the

agreement, the court advised the State that, in an exercise of its statutory discretion, it would

impose a five-year term of mandatory supervised release. The State recommended that the

defendant be sentenced to 10 years' imprisonment on count I and 6 years' imprisonment on

counts II and III. The terms were to run consecutively. The court accepted the defendant's plea

and entered the recommended sentences.

¶5 On August 21, 2012, the defendant filed a pro se postconviction petition. In the petition,

the defendant argued that he received ineffective assistance of counsel and his plea was not

knowing and voluntary. The court advanced the petition to the second stage of proceedings and

appointed the public defender. The public defender filed a motion to withdraw as postconviction

counsel pursuant to Pennsylvania v. Finley,

(1987). The court denied the public

defender's Finley motion, but then allowed counsel to withdraw as the defendant had hired

private counsel.

¶6 Private counsel filed an amended postconviction petition, which argued, in relevant part,

that the defendant received ineffective assistance of counsel when plea counsel: (1) pressured the

defendant to withdraw his motion to suppress; (2) pressured the defendant to plead guilty to the

three most serious offenses because the State would "badger" his elderly father at trial and

counsel was unwilling to try the case; and (3) failed to file a motion to quash the defendant's

warrantless arrest. The amended petition was accompanied by an Illinois Supreme Court Rule

651(c) (eff. Feb. 6, 2013) certificate and the defendant's affidavit.

2 ¶7 In his affidavit, the defendant averred that: (1) plea counsel told him that the State would

withdraw its plea offer if the defendant did not withdraw his motion to suppress and the State

would badger the defendant's father at trial; (2) plea counsel pressured the defendant to take the

plea deal because counsel said that "going to trial would be worse"; (3) the defendant did not

understand what he was agreeing to during the plea colloquy; and (4) the defendant believed that

plea counsel did not want to try the case.

¶8 The State filed a motion to dismiss the defendant's amended postconviction petition, and

the court set the matter for a hearing. At the hearing, the State argued that the defendant did not

allege prejudice with regard to his ineffective assistance of counsel claims. Private counsel

argued that "the standard in a plea deal for what constitutes prejudice is not that the trial would

have been in his favor but that the outcome would be different." At the conclusion of the

arguments on the petition, the court granted the State's motion to dismiss. The defendant

appeals.

¶9 ANALYSIS

¶ 10 The defendant argues that private postconviction counsel provided unreasonable

assistance because counsel failed to properly allege and support the claim that plea counsel

provided ineffective assistance.

¶ 11 The right to counsel during postconviction proceedings is wholly statutory. People v.

Lander,

(2005). The Post-Conviction Hearing Act (Act) provides for the

appointment of counsel for an indigent defendant at the second stage of proceedings. 725 ILCS

5/122-4 (West 2014). Alternatively, a defendant may privately retain counsel at the first or later

stages of proceedings. See People v. Anguiano,

.

3 ¶ 12 Generally, a defendant is entitled to a "reasonable" level of assistance during

postconviction proceedings. People v. Munson,

(2002). However, the

application of this standard to privately retained counsel is the subject of a split of authority. See

People v. Cotto,

; Anguiano,

;

People v. Csaszar,

. We note that all three of these cases

were decided by the First District, and this district has yet to rule on this issue.

¶ 13 The Csaszar decision is the first Illinois case to limit the right to the reasonable assistance

of counsel to formerly pro se postconviction petitioners. Csaszar,

. In

Csaszar, the defendant hired private counsel to prepare his postconviction petition. The

defendant sent private counsel a draft of a petition that he had prepared pro se but did not file.

Id. ¶¶ 11-12. Private counsel then filed a postconviction petition that argued that the defendant:

(1) was unable to understand his actions at the time of the offense because of his medications and

depression; (2) was not fit to stand trial; and (3) received ineffective assistance of trial counsel.

Id. ¶ 12. The trial court granted the State's motion to dismiss the petition. Id. ¶ 13.

¶ 14 On appeal, the defendant argued that private counsel did not provide the reasonable level

of assistance required for postconviction proceedings. Id. ¶ 15. The court noted that the Act

establishes the State's duty to provide counsel only " '[i]f the petition is without counsel and

alleges that he is without means to procure counsel,' " and it does not mention the duties of

privately retained counsel. Id. ¶ 17 (quoting 725 ILCS 5/122-4 (West 2006)). The court held

"the State has no duty to provide counsel, and no duty to provide reasonable assistance of

counsel, for any petitioner able to hire his own counsel." Id. ¶ 18. Rather, private counsel "has a

duty to provide the petitioner with a reasonable level of assistance with postconviction

proceedings." Id. ¶ 22 (citing People v. Kegel,

(2009) ("An attorney

4 who fails to provide competent representation is potentially subject to disciplinary action as well

as to liability for professional malpractice.")). As a result, the Csaszar court suggested that the

defendant's recourse was to bring an action against postconviction counsel in the form of a

successive postconviction petition, "in which [the defendant] argues that his retained counsel's

failings show cause for his failure to raise meritorious issues in his initial postconviction

petition." Id. ¶ 23.

¶ 15 In Cotto,

, 1 the court stated that it continued to find the

reasoning in Csaszar persuasive and applied it to the defendant's reasonable assistance of private

postconviction counsel claim. Private counsel filed a postconviction petition, on behalf of the

defendant, that raised several claims of ineffective assistance of trial and appellate counsel. Id.

¶ 3. The trial court docketed the petition for second-stage proceedings, and the State moved to

dismiss the petition arguing that it was untimely, its allegations were barred by res judicata and

waiver, and the claims were meritless. Id. ¶ 5. At the hearing on the petition, private counsel did

not address the untimeliness argument and, instead, focused his argument on the merits of the

petition. Id. ¶ 8. The court granted the State's motion to dismiss the petition. Id. On appeal, the

defendant solely argued that private postconviction counsel failed to provide reasonable

1 We note that our supreme court allowed the petition for leave to appeal in People v.

Cotto, No. 119006 (Ill. May 27, 2015); however, neither of the parties ask us to stay our decision

pending the outcome of Cotto. The defendant specifically argues that the instant case is factually

distinct from Cotto because private counsel only filed the amended petition and did not

participate in the first-stage proceedings. We agree with the defendant's position and find no

reason to stay our decision.

5 assistance. Id. ¶ 9. The court found "no appreciable difference in the case at bar, where, as in

Csaszar, defendant retained private counsel to prepare and file his petition for him." Id. ¶ 10.

¶ 16 In Anguiano,

, the court held, contrary to its holdings in

Csaszar and Cotto, that a defendant's right to the reasonable assistance of postconviction counsel

extended to private counsel. In Anguiano, a private attorney, who had represented the defendant

during his direct appeal, drafted and filed the defendant's first-stage postconviction petition. Id.

¶ 11. In the petition, private counsel elaborated on an ineffective assistance of counsel argument

that he had raised in the direct appeal. Id. The State filed a motion to dismiss the petition which

argued that the claim was barred by res judicata. Id. ¶ 12. At the hearing on the State's motion,

private counsel argued that he was presenting new evidence in support of the ineffective

assistance claim. However, the trial court agreed with the State and dismissed the petition. Id.

¶ 17 On appeal, the court acknowledged its prior decision in Csaszar,

, which distinguished appointed and privately retained counsel with regard to the right to

a reasonable level of assistance, and then disagreed with the Csaszar holding. Anguiano,

. The Anguiano court found that "[n]iether the Act nor the Illinois

Supreme Court's rulings create a distinction between appointed and retained counsel with regard

to this right, and we decline to infer such a distinction."

The court specifically noted that

Csaszar did not discuss People v. Mitchell,

(2000), in which the supreme

court strongly indicated that a counseled defendant is entitled to a reasonable level of assistance.

Anguiano,

. The Anguiano court also noted that Csaszar did not

provide any policy reasons for affording a reasonable level of assistance to second-stage

defendants who were appointed counsel, and denying the guarantee to defendants who privately

retained counsel at the first and second stages.

The Anguiano court was not persuaded by the

6 Csaszar court's rationale that private counsel would be subject to disciplinary action or a

malpractice suit for his or her incompetent performance. Id. ¶ 39. The Anguiano court held:

"we do not believe the legislature intended for private counsel retained

through the first and second stages to be free to provide a level of assistance

below that required of counsel appointed or retained at the second stage.

Applying the same standards has the virtue not only of guaranteeing similar

protections to similarly situated litigants, but also of simplicity. We see no need

to further complicate postconviction proceedings." Id. ¶ 40.

Applying the reasonable level of assistance standard to the defendant's claims against private

postconviction counsel, the Anguiano court ultimately concluded that the defendant had not

established that he received unreasonable assistance of private counsel. Id. ¶ 49.

¶ 18 After reviewing the split of authority, we adopt the reasoning in Anguiano, and reject the

Csaszar and Cotto holdings. We agree with Anguiano that the law strongly suggests that the

reasonable assistance standard applies to privately retained counsel who is trying a

postconviction petition at the second stage of proceedings. Id. ¶ 26; see also Mitchell,

(finding that defendant's private postconviction attorneys "clearly provided a reasonable

level of assistance," and the private attorneys' representation was not "unreasonable"). To hold

otherwise would incentivize petitioners to claim indigence as it would guarantee that they

receive reasonable assistance of counsel, which would not be required of private postconviction

attorneys. In light of this conclusion, we proceed to determine whether the defendant received

unreasonable assistance of postconviction counsel. We review the second-stage dismissal of a

postconviction petition de novo. People v. Whitfield,

(2005).

7 ¶ 19 The defendant argues that postconviction counsel did not adequately develop and support

his claim of ineffective assistance of plea counsel. To establish a claim of ineffective assistance

of counsel, the defendant must prove that (1) counsel's performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's

unprofessional errors, the result would have been different. Strickland v. Washington,

(1984). At the second stage of proceedings, the defendant need only make a substantial

showing of both of the Strickland prongs to warrant an evidentiary hearing. People v. Hall,

(2005).

¶ 20 In this case, in the amended petition, private counsel raised several allegations of plea

counsel's deficient performance. However, private counsel did not argue that the defendant

suffered prejudice as a result of plea counsel's performance. Stated another way, private counsel

failed to allege that plea counsel's deficient performance affected the outcome of the proceeding,

and absent plea counsel's errors, the defendant would not have pled guilty and insisted on going

to trial. See People v. Guzman,

, aff'd,

("To

show prejudice in the plea context, the defendant must demonstrate that but for trial counsel's

error, there is a reasonable probability that he would not have pled guilty and would have

insisted on going to trial."). The complete omission of the second prong of the Strickland

analysis from the amended petition and the lack of oral argument in support of this prong was

unreasonable. Without this necessary allegation and argument, the amended petition could never

satisfy the "substantial showing" of ineffective assistance required to advance the petition to an

evidentiary hearing. Hall,

. Thus, postconviction counsel's performance was

unreasonable, and we reverse the court's dismissal and remand the cause for de novo second-

8 stage proceedings held in compliance with section 122-4 of the Act (725 ILCS 5/122-4 (West

2014)).

¶ 21 CONCLUSION

¶ 22 The judgment of the circuit court of Will County is reversed and remanded.

¶ 23 Reversed and remanded.

9