2020 IL App (1st) 171925-U No. 1-17-1925 Order filed August 24, 2020 First Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 3925 ) JUAN ACEVES, ) Honorable ) Michele M. Pitman, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.
ORDER
¶1 Held: The trial court’s second-stage dismissal of defendant’s postconviction petition is affirmed over his contention that his postconviction counsel rendered an unreasonable level of assistance.
¶2 Following a 2004 jury trial, defendant Juan Aceves was found guilty of two counts of
first degree murder (720 ILCS 5/9-1(a) (West 2000)) for the shooting deaths of Sammy Mendez
and Adolfo Espinoza, and sentenced to concurrent terms of natural life imprisonment. On direct
appeal, we affirmed defendant’s convictions and sentence. People v. Juan Aceves, Jr., 1-05-1728
(2007) (unpublished order under Supreme Court Rule 23). No. 1-17-1925
¶3 On November 18, 2012, defendant filed a pro se petition for relief under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The circuit court
advanced the petition to the second stage of postconviction proceedings and appointed counsel.
The State filed a motion to dismiss the petition which the court granted. Defendant appeals,
arguing that this court should reverse and remand for further proceedings under the Act because
appointed postconviction counsel rendered an unreasonable level of assistance. We affirm.
¶4 Because we recounted the evidence presented at defendant’s jury trial at length in our
order disposing of defendant’s direct appeal and because that evidence is not relevant to his sole
contention on appeal, we set forth only those facts necessary to place defendant’s contention into
context.
¶5 Defendant was arrested in Austin, Texas in connection with an April 30, 2000 shooting
that occurred near the intersection of North Vincennes Avenue and 13th Street in Chicago
Heights. Assistant State’s Attorney (ASA) Nick D’Angelo traveled to Texas and questioned
defendant, who, after being advised of his Miranda rights, gave a videotaped confession.
¶6 In the confession, defendant explained that, because several members of the Latin Kings
street gang had been flashing gang signs on the day of the shooting, he was posted as security at
Jaime Balderas’ house while Chris Diaz rode his bicycle as a lookout. Defendant stated that he
was given a black handgun for his duty. While defendant stood in front of the house, he heard
Diaz yell for help and ran to assist him. When defendant arrived on the corner, he saw a man in a
yellow shirt confronting Diaz. Defendant told the man to get on the ground, but shot the man
when a car pulled up to the scene. Although defendant was aware that another person was shot,
he stated that he “blanked out” and could not remember firing another shot. In his confession,
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defendant admitted that he did not remember seeing anyone at the corner with a weapon and that
he shot at the dark blue car that pulled up to the scene. After the shooting, defendant returned to
Balderas’ house and threw the black gun into the garage. Two days later, defendant fled Illinois,
and eventually ended up in Texas where he was apprehended.
¶7 Gabriela Gomez, defendant’s girlfriend at the time of the shooting, testified that
defendant is the father of her first child. On the date of the shooting, Gomez was with defendant
at a party at Balderas’ house located on North Vincennes. Balderas, defendant and the other
partygoers, including Diaz, were members of the Spanish Gangster Disciples street gang. About
6:30 p.m., defendant was told to stand in front of the house to act as security against the rival
Latin Kings street gang that had been driving around the neighborhood. After defendant received
a gun with a brown wooden handle, Gomez accompanied him to the front of the house. When
Gomez stated that she could not recall whether defendant was handed another gun, the State
confronted her with her grand jury testimony. Gomez read the testimony and reviewed pictures
that she had initialed, but, when the State read the testimony aloud, she claimed that she did not
remember the questions she was asked or her answers. Gomez testified before the grand jury that
defendant was handed two guns and chose a black handled gun because it held more bullets.
Soon after they went to the front of the house, defendant ran through a vacant lot to assist Diaz,
who had whistled and yelled from the corner. Gomez testified before the grand jury that she
heard five or six gunshots and she went back to Balderas’ house. Defendant returned to the house
with a black gun, which he gave to Balderas. Gomez further testified before the grand jury that
defendant said that he thought he had shot someone. At trial, Gomez testified that she did not
recall defendant returning to the house with a gun or saying that he had shot someone.
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¶8 Gomez was confronted by the State about her interview with an Assistant State’s
Attorney Nick D’Angelo (ASA) and a detective. Gomez again testified that she did not recall
making these statements and denied telling the detective that defendant shot the victims because
they were members of the Latin Kings street gang.
¶9 The State presented the testimony of ASA D’Angelo and the detective, who both testified
to their respective interviews with Gomez and authenticated the State’s presentation of the
questions and responses from the interviews. D’Angelo also identified exhibits, including a
certified grand jury transcript and photos of three guns that Gomez had used to identify the black
handgun used by defendant.
¶ 10 Gerardo Urquizo, a member of the Spanish Gangster Disciples street gang, testified that
he was present at the party at Balderas’ house. Urquizo corroborated Gomez’s grand jury
testimony that defendant was armed with a black handgun and that about five or six shots were
fired shortly after a whistle came from the intersection of 13th Street and North Vincennes. After
the shooting, Urquizo disposed of a gym bag, containing three guns, in the woods north of
Balderas’ house.
¶ 11 Nick Rodriguez testified that at approximately 6:30 p.m. on April 30, 2000, he was in the
driveway of his home at the corner of North Vincennes and 13th Street, and saw Chris Diaz
riding a bicycle up and down 13th Street. Rodriguez testified that Diaz was continuously looking
around the neighborhood as he rode. Rodriguez saw a blue car slowly approach east on 13th
Street and stop about 20 feet from Diaz, who yelled at the occupants of the car and also shouted
in the opposite direction of the car. The car parked and two men exited the car and exchanged
words with Diaz. Rodriguez testified that one of the men was wearing a yellow shirt. Rodriguez
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looked away and heard gunshots. When he looked back, he saw a different person in a blue shirt
holding a gun and shooting the man in the yellow shirt. Rodriguez heard three or four shots fired
as he and his wife retreated into their house to call the police. Rodriguez looked out and saw the
blue car driving away on North Vincennes.
¶ 12 Officer Christina Benton responded to the scene and found Espinoza in the alley of 1315
North Vincennes. Espinoza was lying on his back with a wound to his neck. Benton found
Mendez at 14th Street and North Vincennes with paramedics on the scene. While at the second
scene, Benton monitored a radio call of a reckless driver in a dark blue car about five blocks
from the crime scene. The car was later recovered, but the driver was never found. No weapons
were recovered from the victims, the dark blue car, or either crime scene. After canvassing the
area, Benton found two shell casings at the northeast corner of 13th Street and North Vincennes.
¶ 13 A detective recovered the gym bag from the woods that Urquizo had discarded. The bag
contained, in part, a Walther PPK semiautomatic pistol, a Lorcin .380 caliber pistol, and a
shotgun. The bag and its entire contents were entered into evidence without objection. The State
presented evidence that the fired shell casings matched the Lorcin handgun found in the gym
bag.
¶ 14 Medical examiners testified that both victims died of the gunshot wounds they suffered.
The medical examiners opined that Mendez was shot in the chest and Espinoza had been shot in
his left arm with the bullet exiting through his chest, consistent with being shot from behind
while fleeing.
¶ 15 Defendant testified that, when he ran to assist Diaz, he saw Diaz on the ground and being
beaten by two men. Defendant fired a warning shot and the man in the yellow shirt began
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walking towards him. Defendant shot the man because he believed the man was reaching for a
gun. The dark blue car then approached defendant, who shot at the car.
¶ 16 The jury found defendant guilty of two counts of first degree murder. The trial court
sentenced him to concurrent terms of natural life imprisonment.
¶ 17 On direct appeal, defendant contended that (1) the trial court denied him a fair trial by
allowing evidence of other weapons that were not used in the commission of the crime; and (2)
the trial court erred in allowing the substantive admission of additional prior inconsistent
statements of Gomez. We affirmed defendant’s convictions. Juan Aceves, Jr., 1-05-1728 (2007)
(unpublished order under Supreme Court Rule 23).
¶ 18 On December 3, 2012, defendant filed a pro se petition under the Act. In the petition,
defendant alleged numerous claims of ineffective assistance of trial counsel. He also alleged that
the State engaged in prosecutorial misconduct during closing arguments, elicited perjured
testimony, and withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). He
further alleged that the trial court failed to properly admonish the jury as required by Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012), that the jury was biased against him and that
appellate counsel was ineffective for failing to raise these claims on direct appeal. Defendant
attached his own affidavit to the petition, a letter from “The Review Case Research Group,” two
letters from the “National Inmate Advocacy Program,” and a disciplinary decision entered
against his retained trial counsel Raymond L. Prusak, whom defendant retained in February 2004
(after he was found guilty and sentenced) and discharged on April 19, 2006. Prusak’s misconduct
in handling defendant’s case caused defendant’s direct appeal to be delayed by over a year. On
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February 8, 2013, the circuit court docketed the petition and appointed counsel to represent
defendant.
¶ 19 On April 5, 2013, Assistant Public Defender Lynn Wilson filed her appearance,
confirmed that she was in receipt of defendant’s pro se petition and obtained a court order for the
release of transcripts.
¶ 20 During the next several court dates, counsel related to the court that, despite having
ordered the transcripts, she did not receive the records. On August 1, 2014, counsel informed the
court that she had reviewed defendant’s petition. Counsel related that defendant raised several
allegations of ineffective assistance of trial counsel in his petition and that she had sent a letter to
defendant’s trial counsel (Prusak) requesting a copy of his trial file.
¶ 21 On October 17, 2014, counsel informed the court that Prusak had been disbarred, but that
she had spoken to his wife, who told her that they no longer had the record for defendant’s case
due to the age of the case. Counsel asked for a continuance so she could “review the issues.” She
informed the court that defendant alleged his trial counsel was ineffective for failing to
investigate and “several other issues of ineffective assistance” that she needed to “look into.”
The State informed counsel that if she needed police reports or other records it would order the
trial file and tender it to her.
¶ 22 On the next court date, January 16, 2015, the State informed the court that it had spoken
with defendant’s postconviction counsel and that counsel is “working on the case. She has read
the record. She has briefed the issues. Her client has three or four witnesses that he would like
her to investigate. Her investigator is out there looking for those witnesses.” The State informed
the court that the parties had agreed to continue the case to March 20, 2015.
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¶ 23 On that date, counsel informed the court that she had reviewed the transcripts and all the
issues in the petition and that she was “trying to locate some witnesses.” She explained that her
investigator was looking for the witnesses and the matter was continued.
¶ 24 On June 12, 2015, counsel informed the court that she was still waiting on the trial file.
She also explained that defendant had alleged trial counsel failed to investigate and missed
possible witnesses. She relayed to the court that there were two witnesses left that she needed to
interview and that her investigator was interviewing one of these witnesses that week. Counsel
further explained that the last witness is in Texas and that her investigator has not had a chance
to go to Texas. The State also informed the court that there was a “significant time period” where
the clerk’s office could not locate the record and that the “trial file” was destroyed.
¶ 25 On August 28, 2015, counsel informed the court that she had completed her investigation,
but that she did not have a chance to speak with defendant nor to comply with Illinois Supreme
Court Rule 651(c) (eff. Feb. 6, 2013). Counsel told the court that she had arranged a phone call
with defendant on September 9 and the matter was continued to September 18.
¶ 26 On the next court date, counsel relayed that she had reviewed the petition, consulted with
defendant, and that she would not be preparing an amended or supplemental petition. Counsel
then filed her certificate under Rule 651(c), which stated as follows:
“1. I have consulted with the petitioner, Juan Aceves, by phone, mail, electronics
means or in person to ascertain his contentions of deprivations of constitutional rights; 2.
I have obtained and examined the record of proceedings at the trial and sentencing in this
case; 3. I have not prepared a Supplemental Petition for Post-Conviction Relief as the
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petitioner’s previously-filed pro se petition for post-conviction relief adequately sets forth
the petitioner’s claims of deprivation of his constitutional rights.”
The matter was continued to January 8, 2016, for the State to file a motion to dismiss the
petition.
¶ 27 On December 30, 2015, defendant filed a “Pro Se Amended Petition for Post-Conviction
Relief,” adding several claims to his initial petition. On January 8, 2016, the State filed a motion
to dismiss defendant’s initial petition. Assistant Public Defender Lynn Roseland, appearing on
behalf of defendant, requested a date of March 18, 2016, to file a response to the State’s motion.
¶ 28 On March 14, 2016, defendant filed a pro se motion to “Discharge Appointed Counsel
and Reappointment of Different Counsel on Post-Conviction Petition.” In the motion, defendant
alleged that his postconviction counsel (Lynn Wilson) did not respond to his letters or requests,
refused to amend his petition in accordance with his requests, refused to incorporate his amended
petition into the initial petition, attempted to discourage defendant from filing an amended
petition, and refused to investigate certain witnesses as requested by defendant.
¶ 29 On March 28, 2016, postconviction counsel informed the court that defendant had filed a
motion requesting that she be discharged from the case. The matter was continued to April 15,
2016, for defendant to appear in court.
¶ 30 On April 15, 2016, defendant and counsel appeared in court. Defendant expressed his
displeasure with counsel not amending his petition or incorporating his amended petition. The
court explained to defendant that his counsel was tasked with making appropriate legal
determinations regarding his postconviction petition. The court then passed the case so defendant
could confer with counsel and determine whether he wished to proceed pro se. When the case
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was recalled, defendant elected to proceed pro se. Counsel informed the court that she had
reviewed defendant’s amended petition, was in communication with him, evaluated the issues
that he presented and informed him that she would not be amending the petition. Counsel also
informed that court that she would not be filing a supplemental petition. The court granted
counsel leave to withdraw. Defendant requested the court to treat his amended petition as a
supplemental petition. The court granted defendant’s request and granted the State motion to
withdraw its previously filed motion to dismiss and file another motion to dismiss defendant’s
supplemental petition.
¶ 31 On June 24, 2016, the State informed the court that it was seeking leave to file a motion
to dismiss which addressed “both of the petitions that are before the court.” Defendant informed
the court that he did not wish to proceed pro se and had filed a motion to discharge his counsel
because she failed to comply with Rule 651(c). Defendant requested the court to reappoint
counsel to “argue the issues that [he] had presented to the court.” The court admonished
defendant at length about the role of postconviction counsel and that it could not reappoint
counsel under the condition that she follow his directives regarding what pleadings to file. The
State again withdrew its second motion to dismiss and the case was continued for counsel to
appear and defendant to confer with counsel regarding his decision to proceed pro se.
¶ 32 On July 8, 2016, after defendant conferred with counsel, the court reappointed counsel to
represent him. Counsel informed the court that she reviewed defendant’s supplemental petition
and requested additional time to determine whether to adopt it.
¶ 33 On September 16, 2016, counsel informed the court that she would adopt defendant’s
supplemental petition but would not be preparing a new supplemental petition.
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¶ 34 The record shows that in a November 7, 2016, letter counsel informed defendant that she
had reviewed the issues in his pro se amended petition and stood by her decision not to amend or
supplement the petition. In the letter, counsel also informed defendant that, per their
“communications in court, by mail, and telephone” she would not abandon defendant’s issues
and would present them in arguing for an evidentiary hearing.
¶ 35 On December 2, 2016, the court granted counsel leave to file a second Rule 651(c)
certificate, which counsel did on the same date. The certificate stated as follows:
“1. I have consulted with the petitioner, Juan Aceves, by phone, mail, electronics
means or in person to ascertain his contentions of deprivations of constitutional rights; 2.
I have obtained and examined the record of proceedings at the trial and sentencing in this
case; 3. I have not prepared a Supplemental Petition for Post-Conviction Relief as the
petitioner’s previously-filed pro se petition for post-conviction relief adequately sets forth
the petitioner’s claims of deprivation of his constitutional rights.”
Counsel also informed the court that she would not be preparing a supplemental petition. The
State then recounted the procedural history of the case and informed the court that it had not yet
filed a motion to dismiss pertaining to both defendant’s initial pro se petition and his pro se
supplemental petition. The case was then continued for the State to file a motion to dismiss.
¶ 36 On the next court date, the State informed the court that it was ready to file a motion to
dismiss but that it had received another supplemental postconviction petition from defendant.
The State tendered this petition to postconviction counsel, who did not receive the petition from
defendant. Counsel asked the court to continue the case so that she could read the new
supplemental petition and speak with defendant “in order to comply with [Rule] 651(c).” The
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State requested the court to deny defendant leave to file this additional pro se supplemental
petition, given that defendant was represented by counsel. The court then passed the case and
reviewed defendant’s pro se filing. When the matter was recalled, the court recounted the
procedural posture of the case and denied defendant leave to file “any further supplemental post-
conviction petitions.” The court then granted the State leave to file a motion to dismiss
defendant’s initial petition and the supplement that the court previously allowed defendant to
file. Counsel asked for a short date to respond to the State’s motion.
¶ 37 On January 6, 2017, the State filed a motion to dismiss defendant’s petitions. The State
argued that the petitions were untimely and that defendant’s claims were meritless because they
were unfounded, waived, and unsupported by affidavits or other evidence.
¶ 38 On February 10, 2017, counsel informed the court that she would not be filing a response
to the State’s motion and asked the case to be set for argument on the motion. At the hearing on
the motion, the court recounted the procedural history of the case. The court asked counsel if she
had filed a Rule 651(c) certificate and counsel informed the court that she had. The court also
asked counsel if she had spoken to her client and counsel responded: “I have spoken to my client
both over the phone and by mail on numerous occasions. I stand on his petition. I believe that he
accurately set forth all his allegations in his petition.” Counsel then went on to recount the
arguments raised in the petition and argued that Diaz, if he was allowed to testify, would have
shown that he was being attacked at the time of the shooting and that defendant was acting in self
defense to protect Diaz. The court asked counsel if she had a response to the State’s motion to
dismiss and counsel replied “nothing further.” The State then argued that defendant’s petition
was untimely and without merit. Counsel responded to some of the State’s arguments and
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pointed out that according to defendant, at the time he made his video recorded statement, he was
both mentally and verbally abused and threatened by the officers that they would arrest and
charge Gomez, his girlfriend, who was pregnant at the time. Counsel pointed out that Gomez was
now deceased and argued that had trial counsel spoken with her at the time of trial, she would
have informed trial counsel that police threated to take her children away from her if she did not
testify against defendant. The matter was then continued for the court to consider the State’s
motion to dismiss.
¶ 39 On July 21, 2017, the court granted the State’s motion and dismissed defendant’s
petition. In doing so, the court noted that, notwithstanding the untimeliness of the petition, it
would address the claims on the merits. The court pointed out that defendant failed to support his
claims with affidavits or other documentation and that he did not establish that his constitutional
rights were violated. On the same date, defendant filed a notice of appeal. On August 18, 2017,
defendant filed a pro se motion to withdraw the notice of appeal and a motion to reconsider the
court’s dismissal of his petition. The court denied the motion to reconsider on September 11,
2017, and this court granted defendant leave to file a late notice of appeal on November 14,
2017.
¶ 40 On appeal, defendant contends that the court erred in dismissing his petition because he
did not receive a reasonable level of assistance from his postconviction counsel.
¶ 41 The Act sets forth a procedure under which a criminal defendant may assert his or her
conviction was the result of a substantial denial of his or her rights under the United States
Constitution, the Illinois Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act
contemplates a three-stage proceeding, which is initiated by the filing of a petition. People v.
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Johnson, 2018 IL 122227, ¶ 14; 725 ILCS 5/122-1(b) (West 2016). The petition must “clearly
set forth the respects in which [the defendant’s] constitutional rights were violated.” 725 ILCS
5/122-2 (West 2016). The defendant must attach affidavits, records, or other evidence to support
his or her allegations or shall state why same is not attached, but the petition need not contain
argument or citation and discussion of pertinent authority. Id.
¶ 42 During the first stage, the circuit court must independently evaluate the petition and
determine whether it meets the low standard of pleading sufficient facts to state an arguably
constitutional claim. Hodges, 234 Ill. 2d at 9-10. The court may dismiss the petition only if it is
frivolous and patently without merit. Id. at 10. A petition is frivolous and patently without merit
when it is based on an indisputably meritless legal theory or a fanciful factual allegation. Id. at
16. “[A]n indisputably meritless legal theory is one which is completely contradicted by the
record,” and “[f]anciful factual allegations include those which are fantastic or delusional.” Id. at
16-17.
¶ 43 If the court does not dismiss the petition within 90 days, the matter is advanced to the
second stage at which the court may appoint counsel to represent defendant, and the State may
either move to dismiss or answer the petition. Johnson, 2018 IL 1222267, ¶¶ 14-15. At the
second stage, the court must determine whether the petition and accompanying documentation
sets forth a substantial showing of a constitutional violation. Id. ¶ 15. If no such showing is
made, the petition is dismissed. Id.
¶ 44 In this court, defendant does not challenge the dismissal of his petition on the merits.
Rather, he requests that we remand his case to the circuit court for further proceedings because
his postconviction counsel provided unreasonable assistance by failing to amend his petition;
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attach supporting documentation or explain the absence thereof; and avoid procedural default by
adequately developing his claim that he was not culpably negligent for the untimeliness of the
petition. By focusing exclusively on this issue, defendant has forfeited for review the substantive
claims actually raised in the petition. People v. Cotto, 2016 IL 119006, ¶ 49.
¶ 45 When a postconviction petition is dismissed without an evidentiary hearing, the standard
of review is de novo. People v. Suarez, 224 Ill. 2d 37, 42 (2007) (citing People v. Coleman, 183
Ill. 2d 366, 388-89 (1998)).
¶ 46 There is no constitutional right to counsel in postconviction proceedings. People v.
Moore, 189 Ill. 2d 521, 541 (2000). Because the right to counsel in such proceedings is wholly
statutory (see 725 ILCS 5/122–4 (West 2012)), petitioners are entitled only to the level of
assistance provided by the Act, which has been determined to be a “ ‘reasonable level of
assistance.’ ” People v. Turner, 187 Ill. 2d 406, 410 (1999) (quoting People v. Owens, 139 Ill. 2d
351, 364 (1990)). Illinois Supreme Court Rule 651(c) (eff. Feb 6, 2013) “imposes specific duties
on postconviction counsel to ensure that counsel provides that reasonable level of assistance.”
People v. Kirk, 2012 IL App (1st) 101606, ¶ 18. To that end, Rule 651(c) requires that the record
in postconviction proceedings demonstrate that counsel “has consulted with petitioner by phone,
mail, electronic means or in person to ascertain his or her 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’s contentions.” Counsel’s duty is to shape defendant’s claims into proper legal form
and present them to the court. People v. Perkins, 229 Ill. 2d 34, 44 (2007). An adequate
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presentation of defendant’s claims necessarily includes attempting to overcome procedural bars
that result in dismissal of a petition if not rebutted. Id.
¶ 47 That said, “postconviction counsel is not required to amend a defendant’s pro se
postconviction petition [citation] but, rather is only required to investigate and present the
defendant’s claims [citation.]” Kirk, 2012 IL App (1st) 101606, ¶ 21. That is, although
postconviction counsel “may conduct a broader examination of the record [citation] and may
raise additional issues” that were not raised in the pro se petition, “there is no obligation to do
so.” (Emphasis in original.) People v. Pendleton, 223 Ill.2d 458, 476 (2006).
¶ 48 “Compliance with Rule 651(c) may be shown by the filing of a certificate representing
that counsel has fulfilled her duties.” Kirk, 2012 IL App (1st) 101606, ¶ 19 (citing People v.
Perkins, 229 Ill.2d 34, 50 (2007). “The filing of the certificate gives rise to the presumption that
the defendant received the required representation during second-stage proceedings [citations];
however, this presumption may be rebutted by the record [citation.].” Id. “It is defendant’s
burden to overcome this presumption by demonstrating his attorney’s failure to substantially
comply with the duties mandated by Rule 651(c).” People v. Profit, 2012 IL App (1st) 101307, ¶
19.
¶ 49 Here, postconviction counsel filed a Rule 651(c) certificate. Thus, the presumption exists
that defendant received the representation required by the rule. In order to overcome this
presumption, defendant argues that the totality of the record demonstrates that counsel utterly
failed to comply with Rule 651(c). In support of this argument, defendant argues that
postconviction counsel acted unreasonably when she did not make the amendments necessary to
overcome a petition’s untimeliness. He also asserts that counsel’s decision not to amend the
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petition or include an affidavit from Diaz to support the claims in the petition amounted to
unreasonable assistance. Defendant further maintains that it was unreasonable for postconviction
counsel not to file a written reply to the State’s motion to dismiss or orally argue against the
State’s motion.
¶ 50 After carefully reviewing the record at bar, we find that defendant has failed to overcome
the presumption that postconviction counsel provided reasonable assistance during second-stage
proceedings. The record shows that counsel: communicated with defendant to ascertain his
claims; reviewed the record of the proceedings at trial; reviewed defendant’s petition;
investigated potential witnesses; and argued for defendant’s petition and against the State’s
motion to dismiss. The record shows that on multiple court dates, counsel informed the court that
she was investigating defendant’s claims and that there were witnesses, some of whom resided
outside of the state, that she needed to locate. On August 28, 2015, counsel informed the court
that she had completed her investigation in this case, but that she did not have a chance to speak
with defendant nor to comply with Rule 651(c). Counsel told the court that she had arranged a
phone call with defendant and requested a continuance to comply with Rule 651. Subsequently,
counsel and defendant appeared in court together and conferred about the case. After briefly
discharging counsel, defendant again conferred with counsel on a later date and the court
reappointed counsel.
¶ 51 After defendant pro se filed a supplemental petition, counsel informed the court that she
reviewed the supplemental petition and requested additional time to determine whether to adopt
it. On September 16, 2016, counsel informed the court that she would adopt defendant’s
supplemental petition but would not be preparing a new petition. At the hearing on the State’s
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motion to dismiss, the court asked counsel if she had spoken to her client and counsel responded:
“I have spoken to my client both over the phone and by mail on numerous occasions. I stand on
his petition. I believe that he accurately set forth all his allegations in his petition.” Counsel then
went on to recount the arguments raised in the petition and argued in support of the claims raised
therein. After the State argued to dismiss the petition, counsel responded to some of the State’s
arguments and pointed out that according to defendant, at the time he made his video recorded
statement, he was both mentally and verbally abused and threatened by the officers that they
would arrest and charge Gomez, his girlfriend, who was pregnant at the time. Counsel pointed
out that Gomez was now deceased and argued that had trial counsel spoken with her at the time
of trial, she would have informed trial counsel that police threated to take her children away from
her if she did not testify against defendant. Given this record, defendant has not met his burden
to rebut the presumption that postconviction counsel provided reasonable assistance and satisfied
her duties under Rule 651(c).
¶ 52 In reaching this conclusion, we are not persuaded by defendant’s argument that
postconviction counsel provided unreasonable assistance because she failed to amend his
petition; attach supporting documentation or explain the absence thereof; and avoid procedural
default by adequately developing his claim that he was not culpably negligent for the
untimeliness of the petition. As mentioned, counsel is not required to amend a defendant’s pro se
postconviction petition but, rather is only required to investigate and present defendant’s claims.
Kirk, 2012 IL App (1st) 101606, ¶ 21. That is, although postconviction counsel may conduct a
broader examination of the record and may raise additional issues that were not raised in the pro
se petition, there is no obligation for counsel to do so. People v. Pendleton, 223 Ill.2d 458, 476
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(2006). As a matter of fact, ethical obligations prevent counsel from doing so if the claims are
frivolous. People v. Malone, 2017 IL App (3rd) 140165, ¶ 10. If the claims are frivolous,
postconviction counsel has the option of standing on the allegations in the pro se petition or to
withdraw as counsel. Malone, 2017 IL App (3rd) 140165, ¶ 10 (counsel may stand on the pro se
petition where she is unable to corroborate the claims with affidavits or other evidence; she need
not withdraw as counsel).
¶ 53 Defendant nevertheless argues that counsel should have attached affidavits (namely from
Diaz) to support the claims in the petition. However, the record shows that counsel conducted a
thorough investigation, including tracking down witnesses, before she ultimately determined that
defendant’s pro se petition adequately presented his claims.
¶ 54 Similarly, although amendment of an untimely pro se postconviction petition to allege
lack of culpable negligence is within the scope of Rule 651(c) (Perkins, 229 Ill. 2d at 50), the
rule does not mandate that postconviction counsel respond to the State’s motion to dismiss.
Again, counsel may choose to “stand” on defendant’s petition when it adequately presents his
claims and arguments. Malone, 2017 IL App (3rd) 140165, ¶ 10. In any event, the record here
shows that the circuit court dismissed defendant’s petition on the merits, not timeliness grounds.
See Perkins, 229 Ill. 2d at 44 (An adequate presentation of defendant’s claims necessarily
includes attempting to overcome procedural bars that result in dismissal of a petition if not
rebutted) (emphasis added).
¶ 55 Finally, we are not persuaded by defendant’s reliance on People v. Johnson, 154 Ill. 2d
227 (1993), People v. Turner, 187 Ill. 2d 406 (1999) and People v. Treadway, 245 Ill. App. 3d
1023 (1993). In those case, the reviewing courts found postconviction counsel’s representation to
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be unreasonable. However, in each of those cases counsel failed to file a Rule 651(c) certificate,
and therefore the question before those courts was whether the record affirmatively showed
compliance with the rule. See People v. Wallace, 2016 IL App (1st) 142758, ¶ 28. Here, on the
other hand, counsel did file a Rule 651(c) certificate and this court is tasked with determining
whether the record positively rebuts the presumption that defendant received the representation
required by the rule. Id.; Profit, 2012 IL App (1st) 101307, ¶ 19. As such, Johnson, Turner, and
Treadway are inapposite to this case.
¶ 56 In sum, defendant has failed to rebut the presumption that postconviction counsel
complied with Rule 651(c) and provided reasonable assistance. Therefore, we find that counsel
provide reasonable assistance and accept counsel’s representation that she reviewed the record
and could not or did not need to make any amendments to the petition to adequately present
defendant’s claims. Malone, 2017 IL App (3rd) 140165, ¶ 11.
¶ 57 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 58 Affirmed.
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