2021 IL App (2d) 180545 No. 2-18-0545 Opinion filed February 8, 2021 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 11-CF-1606 ) DION ADDISON, ) Honorable ) T. Clinton Hull, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Dion Addison, appeals the second-stage dismissal of his petition filed under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) in connection with
his convictions of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West
2010)), possession of a converted motor vehicle (id.), theft (720 ILCS 5/16-1(a)(1) (West 2010)),
and forgery (id. § 17-3(a)(2)). He contends that his appointed postconviction counsel provided
unreasonable assistance, leading to forfeiture of his postconviction claims and dismissal of his
petition. Defendant specifically alleges that counsel failed to (1) submit defendant’s affidavit
swearing that his statements to the police were involuntary and (2) allege ineffective assistance of 2021 IL App (2d) 180545
appellate counsel. We reverse and remand with directions to appoint new counsel and allow
defendant to replead his postconviction petition.
¶2 I. BACKGROUND
¶3 Defendant was indicted on February 22, 2012, in connection with his use of counterfeit
money to purchase a motorcycle. Defendant failed to appear for a September 6, 2012, status date
and arrived late to the January 10, 2013, pretrial conference. The court admonished defendant that,
if he failed to appear, he could be tried in absentia.
¶4 At the pretrial conference, defendant moved in limine to bar statements that he made to the
police. He alleged in part that his confession to knowingly using counterfeit bills to purchase a
motorcycle was in exchange for a promise from a United States Secret Service (Secret Service)
special agent that he would release defendant if he confessed. Both the hearing on the motion and
the first day of trial were set for January 14, 2013. Defendant failed to appear for the hearing, and
the court granted the State’s motion to try defendant in absentia.
¶5 At the hearing on the motion in limine, Special Agent Shannon McDowell testified that he
spoke with defendant at the Geneva, Illinois, police station. McDowell read Miranda warnings
(see Miranda v. Arizona, 384 U.S. 436 (1966)) to defendant, and defendant signed a waiver form.
McDowell testified that he made no promises to defendant and did not tell him that he would not
be charged if he confessed. After defendant made his statement, McDowell talked to defendant
about the potential of working with the Secret Service. The Geneva police then asked McDowell
for his recommendation regarding defendant’s custody status. McDowell explained to them that
defendant could be charged or instead released “if he was going to obtain further information or
[if] he was going to assist [the Secret Service].” To McDowell’s knowledge, defendant was
released from custody.
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¶6 Defense counsel did not present any evidence, noting that he was unable to do so because
defendant was absent. Counsel argued that the fact that defendant was released from custody
implied that he was promised release in exchange for his confession. The court denied the motion.
¶7 At the jury trial, the State presented evidence that defendant was involved in the purchase
of a motorcycle using counterfeit money. McDowell testified about defendant’s confession, which
included information that defendant purchased counterfeit bills from a man in Chicago. McDowell
acknowledged that he asked defendant to assist in obtaining additional counterfeit money from
that source. McDowell stated that, before defendant’s confession, they never discussed the
possibility of defendant avoiding charges in exchange for cooperation. McDowell also
acknowledged that defendant was ultimately charged because he failed to provide any information
about the source.
¶8 Defendant presented no evidence and was found guilty. New counsel was appointed, who
filed a posttrial motion that was denied. Defendant was sentenced in absentia. On June 1, 2013,
defendant was arrested. He moved to reconsider the sentence—that motion was denied. On direct
appeal, appellate counsel moved for a summary order to correct the mittimus to reflect two
additional days of sentencing credit. Appellate counsel raised no other issues and no briefs were
filed. The motion was unopposed, and we granted it in a minute order.
¶9 On March 25, 2015, defendant filed a pro se postconviction petition. In it, he alleged 16
issues, including arguments that (1) his trial counsel was ineffective for failing to investigate or
present evidence in connection with the motion in limine, (2) trial counsel should have filed a
motion to suppress earlier in the case, and (3) the trial court erred in denying the motion in limine.
He also alleged that his appellate counsel was ineffective for failing to raise the issues. Defendant
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included an affidavit stating that he confessed because McDowell said that he would not be
charged and would be released if he named the source of the counterfeit money.
¶ 10 The trial court advanced the petition to the second stage and appointed counsel.
Postconviction counsel filed an amended petition (1) noting evidence that defendant gave multiple
statements to the police and to McDowell and (2) alleging that trial counsel was ineffective for
(a) failing to file a motion to suppress statements based on improper Miranda warnings; (b) failing
to file a motion to suppress on the basis that the confession to McDowell was involuntary;
(c) failing to object to expert testimony about the counterfeit money when no expert was disclosed;
and (d) failing to challenge the sufficiency of the evidence when there was a discrepancy in the
number of bills recovered, inventoried, and introduced into evidence. Counsel also alleged an error
in the jury instructions. Counsel made no allegations regarding ineffective assistance of appellate
counsel. Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017),
stating that she consulted with defendant to ascertain his contentions, examined the trial court file
and record of proceedings, and made any amendments to the petition as necessary for an adequate
presentation of defendant’s contentions.
¶ 11 Counsel attached (1) McDowell’s investigation report describing defendant’s cooperation
with the Secret Service, (2) defendant’s signed Miranda waiver, and (3) a form showing that he
refused to make a written statement. Counsel did not submit an affidavit from defendant.
¶ 12 The State moved to dismiss, arguing that defendant’s claims were procedurally barred
because they could have been raised on direct appeal. The State also argued that defendant failed
to show that any of the claims had merit and noted that there was no affidavit from defendant
disputing McDowell’s testimony.
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¶ 13 At the hearing, the court asked postconviction counsel why she did not believe that the
issues could have been raised on direct appeal. Counsel replied that appellate counsel had told
defendant that issues not argued at trial could not be raised on appeal. However, postconviction
counsel told the court that she felt that trial counsel truly had been ineffective. The court then
stated:
“I am just—I am just asking on the waiver argument.
Everything that has been presented by way of the amended PCP are arguments that
I believe could have been made on direct appeal. Arguments that you have brought forth
are all matters that were in the record.
So you don’t have to have an answer. I just wondered if you wished to address it.
Okay. I understand.”
Counsel responded: “Other than that perhaps there was the same oversight on the appellate level
the trial counsel had.”
¶ 14 The trial court granted the motion to dismiss. In a written order the court found, without
elaboration, that defendant failed to make a substantial showing of a violation of a constitutional
right. Defendant appeals.
¶ 15 II. ANALYSIS
¶ 16 Defendant contends that he did not receive reasonable assistance from his postconviction
counsel when counsel (1) failed to file an affidavit from him supporting the allegations of the
amended postconviction petition and (2) failed to allege ineffective assistance of appellate counsel.
The State contends that defendant forfeited collateral review by failing to appear at trial and that
he cannot show prejudice from any errors.
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¶ 17 We first address the State’s argument that defendant forfeited collateral review by failing
to appear at trial. The State points to no relevant precedent for its assertion that “a defendant who
waives his presence at trial also waives collateral review of any issue that could have been resolved
had he appeared.” The State offers the following statement, quoting from People v. Rogers, 2015
IL App (2d) 130412, ¶ 82: “ ‘[W]hen a defendant’s trial and subsequent conviction [were] the
result of his or her own decision ***, the defendant cannot claim the protection intended for those
who attack their convictions on constitutional grounds.’ ” The State edits the sentence from Rogers
by removing text from the middle and the end. In light of the full text of the proposition, which
we quote below (infra ¶ 18), Rogers is inapplicable.
¶ 18 In Rogers, the defendant pleaded guilty and later filed a postconviction petition that the
court summarily dismissed. We held that defendant’s petition set forth the gist of a claim of
ineffective assistance of counsel and that the trial court’s dismissal at the first stage was improper.
Accordingly, we reversed and remanded for further proceedings. Id. ¶ 5. After further
postconviction proceedings, the trial court allowed the defendant to withdraw her plea. Id. ¶ 82.
The court vacated the judgment entered on the plea, and the defendant’s case ultimately proceeded
to a jury trial. Id. ¶ 6. She was convicted and received a greater sentence than she received after
her guilty plea. Id. ¶¶ 4, 62-63. On appeal, she claimed that section 5-5-4(a) of the Unified Code
of Corrections (730 ILCS 5/5-5-4(a) (West 2010)) barred the court from imposing a sentence
greater than what she received previously. When a conviction or sentence is set aside on collateral
attack, section 5-5-4(a) prohibits a trial court from imposing a new sentence more severe than the
prior sentence. Id. We rejected the defendant’s interpretation of section 5-5-4(a). We said: “[W]hen
a defendant’s trial and subsequent conviction were the result of his or her own decision to withdraw
a guilty plea, the defendant cannot claim the protection intended for those who attack their
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convictions on constitutional grounds by either direct review or collateral attack.” (Emphasis
added.) Rogers, 2015 IL App (2d) 130412, ¶ 82. With the emphasis restored, we see the narrow
scope of Rogers’s holding. Rogers’s specific question was whether a court could increase a
sentence after a defendant’s plea is voluntarily withdrawn. Contrary to what the State’s edited
quotation would suggest, we made no general comment on how a defendant’s voluntary actions
impact the availability of collateral relief. We certainly made no specific comment on the ability
of a defendant tried in absentia to seek collateral relief.
¶ 19 Fortunately, there is more pertinent case law. Regarding a defendant’s failure to appeal,
even though willful absence, our supreme court has held that “[t]he Post-Conviction Hearing Act
provides a separate remedy, the availability of which is not contingent upon exhaustion of any
other remedy.” People v. Rose, 43 Ill. 2d 273, 279 (1969). “[A] party who fails to take an appeal,
whether by careful choice, inadvertence, indigence, or as a result of fleeing the jurisdiction as here,
may waive claims of error, but any right which may have existed to a post-conviction hearing on
the constitutionality of imprisonment will remain undiminished.” Id.
¶ 20 Under Rose, defendant’s failure to appear at trial did not extinguish his right to bring proper
constitutional claims in a collateral proceeding. Regarding Rose’s reference to waiver, we note
that many of defendant’s claims allege the ineffective assistance of counsel. Normally, such claims
cannot be resolved during a trial—they are reserved for direct appeal or collateral review.
Therefore, defendant could not have forfeited those claims by failing to appear at trial. Nor did
defendant forfeit his ineffectiveness claims specific to appellate counsel when he failed to oppose
counsel’s motion for a summary order. See People v. Jones, 364 Ill. App. 3d 1, 5 (2005) (rejecting
argument that a defendant’s failure to respond to appellate counsel’s motion under Anders v.
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California, 386 U.S. 738 (1967), results in the waiver of all future claims, including those more
properly pursued in a collateral, postconviction proceeding).
¶ 21 On the merits, defendant argues that postconviction counsel failed to comply with Rule
651(c) by neglecting to adequately support defendant’s claims with an affidavit and by failing to
amend the petition to include claims of ineffective assistance of appellate counsel.
¶ 22 We address first the failure to amend. Defendant argues that, by that failure, postconviction
counsel unreasonably allowed claims of ineffective assistance to be forfeited. The State responds
that counsel adequately complied with Rule 651(c) and that defendant cannot show prejudice.
¶ 23 The Act provides a three-stage mechanism for a defendant to advance a claim that he or
she suffered a substantial deprivation of constitutional rights. People v. Barcik, 365 Ill. App. 3d
183, 190 (2006). At the first stage, the trial court must independently review the petition within 90
days of its filing and determine whether it is frivolous or patently without merit. 725 ILCS 5/122-
2.1(a)(2) (West 2016). At this stage, the petition needs to present only a limited amount of detail
to set forth the gist of a meritorious constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244
(2001). If the trial court does not dismiss the petition as frivolous or patently without merit, the
petition advances to second-stage proceedings. People v. Lesley, 2018 IL 122100, ¶ 31.
¶ 24 At the second stage of postconviction proceedings, the trial court may appoint counsel for
an indigent defendant. 725 ILCS 5/122-4 (West 2016). The State may file a motion to dismiss or
an answer (id. § 122-5). “If the State moves to dismiss, the trial court may hold a dismissal hearing,
which is still part of the second stage.” People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009). To
survive dismissal, the petition must make a substantial showing of a constitutional violation.
Edwards, 197 Ill. 2d at 246. The trial court is foreclosed from engaging in any fact-finding at this
stage because all well-pleaded facts are to be taken as true unless they are rebutted by the record.
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Wheeler, 392 Ill. App. 3d at 308. A postconviction petitioner is not entitled to an evidentiary
hearing as a matter of right. People v. Coleman, 183 Ill. 2d 366, 381 (1998). To require an
evidentiary hearing, the petition’s allegations must be supported by the record or by accompanying
affidavits. Id.
¶ 25 In a postconviction proceeding, there is no constitutional right to the assistance of counsel.
Instead, the right to counsel is wholly statutory. People v. Suarez, 224 Ill. 2d 37, 42 (2007); see
725 ILCS 5/122-4 (West 2016). Petitioners are entitled only to the level of assistance granted by
the Act, which provides for a reasonable level of assistance. People v. Turner, 187 Ill. 2d 406, 410
(1999); People v. Flores, 153 Ill. 2d 264, 276 (1992). To ensure that postconviction petitioners
receive this level of assistance, Rule 651(c) requires that the record or a filed certificate must
disclose that postconviction counsel
“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.” Ill. S. Ct. R. 651(c)
(eff. July 1, 2017).
Compliance with the rule is mandatory and, as noted, may be shown by a certificate filed by
postconviction counsel. People v. Perkins, 229 Ill. 2d 34, 50 (2007).
¶ 26 Here, postconviction counsel filed a certificate pursuant to Rule 651(c), asserting that she
consulted by “mail/telephone/in person” with defendant to ascertain his contentions of deprivation
of constitutional rights; that she examined the court file and record of proceedings at the trial; and
that she made any amendments necessary for adequate presentation of defendant’s claims. The
filing of a Rule 651(c) certificate gives rise to a presumption that postconviction counsel provided
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reasonable assistance during second-stage proceedings under the Act. People v. Rossi, 387 Ill.
App. 3d 1054, 1060 (2009). A defendant may overcome this presumption by demonstrating
counsel’s failure to substantially comply with the duties mandated by the rule. See People v.
Richardson, 382 Ill. App. 3d 248, 257 (2008).
¶ 27 Defendant argues that postconviction counsel violated Rule 651(c) by failing to amend his
pro se petition to present his claims in appropriate legal form, where counsel allowed the claims
to be forfeited by failing to allege that appellate counsel was ineffective for not raising them. We
agree.
¶ 28 Generally, where postconviction claims could have been raised on direct appeal but were
not, they are forfeited. Turner, 187 Ill. 2d at 412-13. However, if postconviction counsel amends
the postconviction petition to allege ineffective assistance of appellate counsel for failing to raise
the petitioner’s claims on direct appeal, the claims are not procedurally barred. Id. at 413. “Our
supreme court has held that a failure of postconviction counsel to ‘make a routine amendment to
[a] post-conviction petition which would overcome the procedural bar of waiver’ constitutes
unreasonable assistance in violation of Rule 651(c).” People v. Kluppelberg, 327 Ill. App. 3d 939,
947 (2002) (quoting Turner, 187 Ill. 2d at 414). Thus, a postconviction counsel’s failure to allege
appellate counsel’s ineffectiveness, especially where it was properly alleged in the pro se petition,
is “patently unreasonable.” Id.
¶ 29 Here, in his pro se postconviction petition, defendant raised multiple allegations of
ineffective assistance of trial and appellate counsel, including the claim that he was denied his
right to effective assistance of both trial and appellate counsel based on the alleged failure of trial
counsel to properly present his claim that his statement to McDowell was involuntary. In her
amended postconviction petition, postconviction counsel also alleged multiple claims of
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ineffective assistance of trial counsel but did not address the performance of appellate counsel.
Not only did counsel fail to allege ineffective assistance of appellate counsel, she also did not
attempt to present such claims when the State argued forfeiture in its motion to dismiss—even
though the trial court alertly questioned why she did not include any such claims. Postconviction
counsel’s failure constitutes unreasonable assistance under Rule 651(c). By failing to allege
ineffective assistance of appellate counsel, postconviction counsel “prevented the circuit court
from considering the merits of petitioner’s claims and directly contributed to the dismissal of the
petition without an evidentiary hearing.” Turner, 187 Ill. 2d at 413.
¶ 30 The State argues, however, that we should affirm because defendant failed to show
prejudice by demonstrating that his underlying claims had merit. However, “a defendant is not
required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused
prejudice.” People v. Nitz, 2011 IL App (2d) 100031, ¶ 18. Counsel must show compliance with
Rule 651(c) regardless of whether the claims made in the petitioner’s pro se or amended
postconviction petition are viable. Suarez, 224 Ill. 2d at 47, 51-52. A “remand is required where
postconviction counsel failed to fulfill the duties of consultation, examining the record, and
amendment of the pro se petition, regardless of whether the claims raised in the petition had merit.”
Id. at 47. This compliance is required because the rationale behind Rule 651(c) is that the limited
right to counsel under the Act cannot be fully realized when postconviction counsel does not
adequately fulfill his or her duties under the rule. Id. at 43-44, 51. Thus, claiming harmless error
is no excuse for noncompliance with Rule 651(c). Id. at 52.
¶ 31 In Turner, where, as here, postconviction counsel failed to allege ineffective assistance of
appellate counsel, our supreme court rejected the argument that the defendant could not
demonstrate prejudice in that his underlying claim lacked merit. The court noted that
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postconviction counsel’s failure to overcome forfeiture was itself “palpable” prejudice. Turner,
187 Ill. 2d at 415. The court refused to speculate whether the trial court would have dismissed the
petition if counsel had adequately performed his duties under Rule 651(c). Id. at 416.
¶ 32 The State attempts to distinguish Turner by arguing that counsel’s performance here was
less deficient. But Turner is controlling. Here, just as in Turner, postconviction counsel failed to
allege ineffective assistance of appellate counsel, thus allowing the underlying claims to be
fortified. By doing so, counsel deprived defendant of any decision on the merits of those claims.
¶ 33 Further, like the defendant in Turner, defendant here argues that postconviction counsel
unreasonably failed to attach defendant’s affidavit in support of his claims or explain its absence.
Normally, such an omission is fatal to a defendant’s claims. See id. at 414. The State argues that
the failure to include the affidavit did not prejudice defendant, because his assertions that he
confessed based on promises made by McDowell could not have been presented at trial due to his
willful absence. We agree that, in this respect, the affidavit may not have been necessary to support
defendant’s claims. However, because we are remanding and directing the appointment of new
counsel based on postconviction counsel’s failure to allege appellate counsel’s ineffectiveness, we
need not address that issue. See Kluppelberg, 327 Ill. App. 3d at 947-48 (declining to address
remaining issues when remanding for appointment of new postconviction counsel and to allow the
petitioner to replead his postconviction petition).
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we reverse the judgment of the circuit court of Kane County.
Further, we remand the cause with directions to appoint new counsel and to allow defendant to
replead his postconviction petition.
¶ 36 Reversed and remanded with directions.
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No. 2-18-0545
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 11-CF- 1606; the Hon. T. Clinton Hull, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Mary Beth Burns, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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