Madison - St. Clair Record

Saturday, August 17, 2019

Appellate court reverses decision on post-conviction relief because of failure to attach documentation

By Karen Kidd | Mar 17, 2018

MOUNT VERNON – An appeals court has reversed a decision denying a man's amended petition for post-conviction relief on the grounds his counsel "provided an unreasonable level of assistance."

Illinois' 5th District Appellate Court remanded the matter back to the trial court on March 1. The court stated post-conviction counsel for Lewis Rice didn't attach "readily available supporting documentation" to Rice's amended petition for relief, according to the appeals court's decision.

The documentation in the form of affidavits was attached to Rice's earlier pro se petition but his post-conviction counsel did not attach the affidavits to his second amended petition, Justice Thomas M. Welch wrote in the appeals court's 11-page decision.

Justice Thomas M. Welch

"Thus, he (Rice) argues that counsel did not comply with Rule 651(c) and that this court should remand without requiring any showing of prejudice," Welch wrote in the court's decision.

The court's three-judge panel unanimously agreed.

"Thus, we conclude that this cause should be remanded to the trial court so that post-conviction counsel may comply with Rule 651(c)," Welch wrote in the decision.

Justice James R. Moore and Justice Judy Cates concurred in the decision.

That Rice shot Franklin Jones and Grady Appleton, killing the former and injuring the latter, while they were sitting in a parked vehicle on Sept. 26, 2007, "is undisputed," Welch wrote in the appeal's court's decision. In November 2009, a St. Clair County Circuit Court jury found Rice, who turned 40 that month, guilty of first-degree murder, armed violence and aggravated battery with a firearm, according to background information in the order.

Rice's previous first-degree murder conviction, in 1991, meant that a natural life sentence was mandatory, according to the background provided in the 5th District's response to Rice's first appeal.

In his first appeal, Rice asked that his first-degree murder conviction be reduced to second-degree murder because he "acted on an unreasonable belief in the need for self-defense" when he fired into the Cadillac where Jones and Appleton were sitting, Welch wrote in the 5th District's most recent ruling.

"This court disagreed, finding that the evidence presented for the jury's consideration sufficiently supported the findings that the defendant, with the intent to kill the occupants of the parked vehicle, repeatedly fired into the vehicle in retaliation for their earlier shooting at him, and he did not believe, reasonably or unreasonably, that the use of deadly force was necessary," the 5th District's most-recent ruling said.

In June 2012, the 5th District affirmed the St. Clair County jury's verdict. In June of the following year, Rice filed pro se for post-conviction relief, claiming "in pertinent parts" that his counsel during trial had been ineffective for not calling two witnesses, his then-wife Regina Andrews and then-girlfriend Alyce Woods, the 5th District's ruling said.

In February and September 2014, Rice's post-conviction counsel filed amended petitions for post-conviction relief that also claimed Rice's trial counsel had been ineffective because they didn't call Woods and Andrews as witnesses, according to the 5th District's most recent ruling.  

The state asked the court to dismiss Rice's petitions, arguing "the decision as to whether to call a particular witness was a matter of trial strategy and the issue of whether the defendant had a weapon in his possession was not determinative of his intent." 

In November 2014, St. Clair County Circuit Court granted the state's motion to dismiss, saying Rice had forfeited the issues he raised in his post-conviction petition because he didn't raise them during his post-trial hearing or on appeal, according to the 5th District's most recent ruling.  

Rice again appealed, this time based on his post-conviction counsel's failure to attach affidavits to his amended appeal. 

"Here, counsel mistakenly believed that affidavits were not necessary due to the nature of the claims raised," the 5th District's most recent ruling said.

Because Rice's post-conviction counsel failed to attach the affidavits, "we must conclude that post-conviction counsel provided an unreasonable level of assistance," the 5th District's most recent ruling said.

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Illinois Fifth District Appellate Court St. Clair County Circuit Court