Trial court properly granted Kuehner motion where post-conviction counsel provided evidence that claims were frivolous

The appellant in People v. Fathauer, 2019 IL App (4th) 180241 appealed the trial court’s order dismissing his post-conviction petition on grounds that the court erred by granting post-conviction counsel’s motion to withdraw in light of a stated claim for ineffective assistance of counsel and post-conviction counsel’s failure to amend his pro se petition. The Fourth District Appellate Court affirmed.

Fathauer was originally convicted of participation in methamphetamine manufacturing and obstruction of justice, and sentenced to concurrent terms of 20 years and 3 years imprisonment. Id. at ¶ 1. On direct appeal, both his conviction and sentence were affirmed by the appellate court. Shortly thereafter, Fathauer filed a pro se petition for post-conviction relief, alleging four grounds for relief, including ineffective assistance of trial counsel. Id. at ¶ 2. The trial court appointed appellate counsel, who subsequently filed a motion to withdraw, citing People v. Kuehner, 2015 IL 117695, and arguing that each of the pro se claims were frivolous and patently without merit. Id. at ¶ 3. Counsel’s motion was initially granted by the court, and Fathauer’s appearl was dismissed for want of a final order. Id. at ¶ 4. On remand, the trial court granted the State’s motion to dismiss. This appeal followed.

Fathauer argued on appeal that the trial court erred by granting post-conviction counsel’s motion to withdraw because the petition stated a claim for ineffective assistance of counsel and because post-conviction counsel rendered unreasonable assistance by failing to amend the pro se petition. Id. at ¶ 5. As to the ineffective assistance of trial counsel claim, Fathauer alleged that counsel failed to scientifically test spots on his clothing and point out inconsistencies in trial testimony, and that such a lack of pre-trial investigation by his counsel “deprived him of a potential defense” that would have prevented his conviction at trial. Id. at ¶ 27. The State responded to his petition with a motion to dismiss, arguing that appellant’s claims were barred by res judicata, insufficiently pled, and unsupported by the record. Id. at ¶ 29.

In response to Fathauer’s claims of ineffective assistance of trial counsel, post-conviction counsel, in his motion to withdraw under Kuehner, asserted that “there is no evidence from the record to support” the claims made by Fathauer and that Fathauer had “not demonstrated deficient performance by trial counsel that caused him prejudice.” Id. at ¶ 32. Postconviction counsel also expressed his concurrence with the State that the issue of false testimony had been argued and rejected on direct appeal and was therefore barred by res judicata. As to the Kuehner issue, Fathauer argued that post-conviction counsel should not have been permitted to withdraw because his petition stated the gist of a constitutional claim of ineffective assistance of trial counsel.

The appellate court noted that Kuehner requires a two-step analysis. First, the court must determine whether the trial court advanced the petition to the second stage of postconviction proceedings on its merits, based upon its conclusion that the petition stated the gist of a constitutional claim. Second, the court must evaluate whether counsel provided “at least some explanation as to why, despite its superficial virtue, the pro se petition was in fact frivolous or patently without merit” with respect to each claim. Id. at ¶ 47. On the first requirement, the court held that the appointment of counsel was a sufficient and satisfactory action. Id. at ¶ 48. On the second requirement, the court held that it must address whether postconviction counsel (1) provided some information that was not apparent on the face of the petition that (2) demonstrated that each of defendant’s pro se claims were in fact frivolous and patently without merit. Id. at ¶ 50.

To that end, the court held that when post-conviction counsel provided the trial court with the full transcript of the witness’ testimony and the court’s decision on direct appeal, counsel was calling the court’s attention to information not apparent on the face of the petition and met Kuehner’s requirement. Id. at ¶ 52. Moreover, the court held that if counsel determines that appellant’s claims are barred by res judicata or are contradicted by the record, counsel has an ethical obligation to move to withdraw if he reasonably believes that the trial court erred when it found the petition had merit at first glance. Id. at ¶ 58. The court found further that post-conviction counsel had properly explained why each of the claims within the post-conviction petition were frivolous and patently without merit. Id. at ¶ 64. Thus, the court held that counsel’s motion to withdraw was proper under Kuehner.

Finally, as to Fathauer’s assertion of unreasonable assistance of post-conviction counsel for failing to amend his pro se petition, the court held that appellant’s claims were contradicted by the record, and that, because counsel is not required to advance frivolous claims, could not amount to unreasonable assistance. Id at ¶ 68. The Appellate Court affirmed.

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