The appellant in People v. Hawkins, 2019 IL App (3d) 160682, appealed the trial court’s order dismissing his pro se post-conviction petition at the second stage on the grounds that the court erred by ordering that he be shackled without stating the reasons for doing so and that post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). The Appellate Court of Illinois Third District ultimately vacated the circuit court’s order and remanded for new second-stage proceedings, beginning with the appointment of new post-conviction counsel.

Anthony Hawkins was convicted of first-degree murder and aggravated unlawful use of a weapon (AUUW) and sentenced to terms of 45 years’ and 2 years’ imprisonment, respectively. Id. at ¶ 4. On direct appeal, both convictions and sentences were affirmed. Shortly thereafter, Hawkins filed a pro se post-conviction petition alleging that appellate counsel had been ineffective for failing to argue on direct appeal that the circuit court had erred by denying his motion to suppress. Hawkins also asserted that his conviction for AUUW was unconstitutional. Id. at ¶ 5.

The court appointed post-conviction counsel and advanced the petition to the second stage of postconviction proceedings. Counsel filed a petition for relief from judgment, alleging the AUUW conviction should be vacated under People v. Aguilar, 2013 IL 112116. Id. at ¶ 6. The court granted the petition and vacated the conviction. Following a conclusion that no nonfrivolous arguments remained to be made on appellant’s behalf, counsel filed a motion to withdraw. The circuit court found that counsel had complied with the requirements of Rule 651(c) and granted the motion. Id. at ¶ 7.

The State then subsequently filed a motion to dismiss the postconviction petition. Hawkins filed a response, pro se, and, at the hearing, repeatedly requested that he be unshackled so that he could maneuver through his notes and other paperwork. The court refused all requests and said, at one point, “I’m not removing them… do the best you can do.” Id. at ¶ 8. The record did not provide any rationale for keeping Hawkins shackled nor did it contain any notation of the factors considered by the court in denying Hawkins’ requests to be unshackled. The court granted the State’s motion to dismiss. This appeal followed.

On appeal, Hawkins raised two arguments. First, he argued that the court’s decision to keep him shackled during the second-stage hearing, absent any articulated justification by the court on the record, requires a new second-stage hearing. Further, he argued that he was entitled to a new second-stage hearing due to post-conviction counsel’s failure to file a Rule 651(c) certificate before withdrawing from the case. Id. at ¶ 10.

The court acknowledged that it is “well accepted” that in-court shackling has the potential to restrict an individual’s ability to assist defense counsel, and a trial judge’s failure to articulate any basis for the shackling constitutes a violation of due process. Id. at ¶ 11. The court looked to People v. Rippatoe for similar instruction on pro se proceedings and found that the aforementioned requirements from Boose applied similarly to pro se cases.

The State acknowledged that the shackling documented in this record was “inappropriate” under the Boose standard. Id. at ¶ 12. The point of dispute between the two parties focused on the proper remedy for the Boose violation. The State argued that the court should remand the matter for a retrospective hearing to determine if shackling was proper, while Hawkins argued for the vacation of the order dismissing his post-conviction petition and remand for a new second-stage hearing. Id. at ¶ 13. The appellate court agreed with Hawkins that a retrospective hearing would be improper, and, due to the trial court’s silence on its precise rationale for shackling, vacated the order dismissing the post-conviction petition and remanded for new second stage proceedings. Id. at ¶ 15.

The appellate court then turned to the second issue raised on appeal: that post-conviction counsel had not filed a valid Rule 651(c) certificate before being allowed to withdraw from second stage proceedings. All parties agreed that no valid certificate was filed. The appellate court, similarly, instituted the same remedy for the first issue and remanded for new second stage proceedings. Id. at ¶ 16. The court provided instruction to the trial court to begin the second stage post-conviction proceedings anew with the re-appointment of post-conviction counsel, allowing counsel to review the entire record in compliance with Rule 651(c). Id. at ¶ 18.

The Third District vacated the judgement of the Circuit Court of Will County and remanded with new directions.

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