People v. Ajibola

2023 IL App (4th) 220968-U

• Court: Appellate Court of Illinois
• Decided: November 2, 2023
• Docket: 4-22-0968
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220968-U FILED This Order was filed under November 2, 2023 Supreme Court Rule 23 and is NO. 4-22-0968 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County OLADAPO AJIBOLA, ) No. 11CF327 Defendant-Appellant. ) ) Honorable ) Ryan M. Cadagin, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed the trial court’s dismissal of defendant’s postconviction petition because defendant waived his unreasonable assistance of counsel claim and counsel’s failure to file a valid Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) certificate was harmless error.

¶2 Defendant, Oladapo Ajibola, appeals from the trial court’s second-stage dismissal

of his postconviction petition. Defendant argues he is entitled to remand for new second-stage

proceedings because (1) he received unreasonable assistance of postconviction counsel and

(2) counsel filed a deficient Rule 651(c) certificate of compliance (see Ill. S. Ct. R. 651(c) (eff.

July 1, 2017)), and the record does not otherwise demonstrate compliance with the rule. We

affirm.

¶3 I. BACKGROUND ¶4 The factual background and procedural history of defendant’s case were

examined in depth on direct appeal. See People v. Ajibola, 2015 IL App (4th) 130430-U

(unpublished order under Supreme Court Rule 23). Accordingly, we only address the facts

necessary to the disposition of this appeal.

¶5 A. Conviction and Appeal

¶6 In May 2011, the State charged defendant by information with home invasion,

(720 ILCS 5/12-11(a)(2) (West 2010)) (count I), aggravated domestic battery (id. § 12-3.3(a))

(count II), two counts of criminal damage to property (id. § 21-1(1)(a)) for damage to a car

window (count III) and for damage to a residence door (count IV), and domestic battery (id.

§ 12-3/2) (count V). In December 2012, a jury found defendant guilty on all five counts. The trial

court entered judgment on the first four counts and merged count V into count II as a

lesser-included offense.

¶7 In February 2013, the trial court sentenced defendant to 22½ years in prison for

count I and 364 days in jail each for counts III and IV, to run concurrently. The court vacated

count II under the one-act, one-crime rule.

¶8 On direct appeal, this court affirmed defendant’s 22½-year sentence but reversed

the trial court’s judgment on count IV. Ajibola, 2015 IL App (4th) 130430-U, ¶ 75.

¶9 B. Postconviction Petition

¶ 10 In August 2015, defendant filed a pro se postconviction petition pursuant to the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Defendant alleged

multiple claims of ineffective assistance of trial counsel, including failing to (1) communicate a

plea offer, (2) call defendant’s mother to testify at trial, and (3) review any discovery materials

with defendant before trial.

-2- ¶ 11 The trial court advanced defendant’s petition to the second stage of

postconviction proceedings and appointed counsel to represent defendant. In October 2015, the

State filed a motion to dismiss defendant’s petition. No amended petition for postconviction

relief was filed on defendant’s behalf during the next four years. In July 2019, counsel moved to

withdraw as attorney for defendant.

¶ 12 In January 2020, the trial court appointed new postconviction counsel.

Postconviction counsel filed an amended petition for postconviction relief in April 2022. The

amended petition realleged defendant’s pro se ineffective assistance of counsel arguments

related to failing to communicate a plea offer and failing to call defendant’s mother to testify.

The amended petition omitted the claim concerning the failure to review discovery but did

mention the failure to review evidence in the context of another claim. The amended petition did

not indicate it incorporated defendant’s pro se petition.

¶ 13 Along with the amended petition, postconviction counsel attached (1) an affidavit

from defendant’s parents, (2) the jail visitor log, (3) the docket sheet from October 15, 2012, to

the end of trial, (4) an affidavit from defendant’s mother, and (5) defendant’s affidavit.

Defendant’s affidavit predominately addressed the plea offer claim but did allege trial counsel

“made no reasonable effort” to discuss the case with defendant before trial. Counsel also filed a

Rule 651(c) certificate of compliance, which read in part:

“1. I am the attorney for the petitioner.

2. I have consulted with the petitioner via telephone to ascertain his

contentions of deprivation of constitutional rights.

3. I have examined relevant records of the trial proceedings and other

documents and/or evidence.

-3- 4. Amendments to the petition filed pro se are required for an adequate

representation of petitioner’s contentions.”

¶ 14 In June 2022, the State filed a motion to dismiss the amended petition.

Postconviction counsel then filed a response to the State’s motion to dismiss. Unlike the

amended petition, counsel added a third claim of “Failure to Counsel.” This new claim included

allegations relating to the failure to communicate a plea offer and the failure to review evidence

before trial. Counsel’s response also clearly stated the amended petition superseded and did not

incorporate the pro se petition.

¶ 15 In October 2022, the trial court held a hearing on the State’s motion to dismiss.

After argument, the court granted the State’s motion and dismissed defendant’s amended

postconviction petition. The court entered a written order finding defendant failed to make a

substantial showing of a constitutional violation.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues postconviction counsel provided unreasonable

assistance by failing to make the necessary amendments to his pro se petition. Defendant also

contends postconviction counsel filed a deficient Rule 651(c) certificate, and the record does not

otherwise demonstrate compliance with the rule.

¶ 19 The Act grants defendants the statutory right to challenge their convictions based

on a substantial deprivation of their constitutional rights. People v. Pendleton, 223 Ill. 2d 458,

471 (2006). The postconviction process is divided into three stages. Id. at 471-72. At the first

stage, the trial court reviews the petition and may dismiss it if “the petition is frivolous or is

-4- patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is not dismissed,

the trial court dockets the petition for further consideration. Id. § 122-2.1(b).

¶ 20 At the second stage, the trial court may appoint counsel to represent an indigent

defendant. Id. § 122-4. “The right to assistance of counsel in postconviction proceedings is a

matter of legislative grace, and a defendant is guaranteed only the level of assistance provided by

the *** Act.” People v. Hardin, 217 Ill. 2d 289, 299 (2005). Because the right to postconviction

counsel is wholly statutory, a defendant is entitled only to a reasonable level of assistance.

Pendleton, 223 Ill. 2d at 472. The standard for reasonable assistance is “significantly lower than

the one mandated at trial by our state and federal constitutions.” People v. Custer, 2019 IL

123339, ¶ 30.

¶ 21 The State may file a motion to dismiss or answer the petition at the second stage.

725 ILCS 5/122-5 (West 2022). The trial court then determines whether the defendant made a

substantial showing of a constitutional violation. People v. Cotto, 2016 IL 119006, ¶ 28. All

well-pleaded facts not affirmatively rebutted by the record are taken as true, and the court is

precluded from engaging in fact-finding or credibility determinations. People v. Dupree, 2018 IL

122307, ¶ 29. If the defendant makes a substantial showing of a constitutional violation, the

petition advances to the third stage, where the court conducts an evidentiary hearing. 725 ILCS

5/122-6 (West 2022).

¶ 22 In the case before us, the trial court dismissed defendant’s petition at the second

stage. We review de novo the dismissal of a postconviction petition without an evidentiary

hearing. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

-5- ¶ 23 Neither party has raised the issue of waiver on appeal. Nevertheless, we must first

address whether defendant waived his claim of unreasonable assistance of postconviction

counsel.

¶ 24 A. Waiver of Unreasonable Assistance Claim

¶ 25 Defendant first argues postconviction counsel rendered unreasonable assistance

by failing to shape defendant’s failure to review discovery claim into proper legal form.

Specifically, defendant contends counsel failed to include necessary information in defendant’s

attached affidavit in support of this claim.

¶ 26 Section 122-3 of the Act provides “[a]ny claim of substantial denial of

constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS

5/122-3 (West 2022). The Act contemplates the filing of only one postconviction petition

without leave of the trial court. Id. § 122-1(f); People v. Sanders, 2016 IL 118123, ¶ 24.

Consequently, when counsel files an amended petition and does not incorporate the pro se

petition, the amended petition supersedes the pro se petition. People v. Phelps, 51 Ill. 2d 35, 38

(1972); People v. Snow, 2012 IL App (4th) 110415, ¶ 55.

¶ 27 When a superseding amended petition omits a claim which was raised in a

defendant’s initial pro se petition, the issue is no longer before the trial court. Phelps, 51 Ill. 2d at

38. Likewise, the claim is also deemed waived on appeal. See Barnett v. Zion Park District, 171

Ill. 2d 378, 384 (1996) (“Where an amended pleading is complete in itself and does not refer to

or adopt the prior pleading, the earlier pleading ceases to be part of the record for most purposes

and is effectively abandoned and withdrawn.”); see also People v. Bowens, 407 Ill. App. 3d

1094, 1098 (2011) (defining waiver as “the intentional relinquishment of a known right”).

-6- ¶ 28 Here, in his initial pro se petition, defendant included the failure to review

discovery as its own ineffective assistance of counsel claim. However, in the amended petition

filed by counsel, the failure to review evidence is only briefly mentioned within the context of a

different ineffective assistance claim. It is not asserted as an independent claim.

¶ 29 At the October 2022 hearing, counsel acknowledged the amended petition did not

include the failure to review discovery as a separate claim, stating:

“MR. SCHANTZ [(DEFENSE COUNSEL)]: I want to also make clear

that not only are we alleging that [defendant] was not told about this deal, he was

also not counseled about the case against him, the State’s evidence and so forth.

It’s mentioned in my—it’s mentioned in my petition, but it’s not separated

out, though I did separate it out on my response to the State’s Motion to Dismiss.”

Further, the amended petition did not incorporate the pro se petition. In his response to the

State’s dismissal motion, counsel explicitly argued the amended petition superseded the pro se

petition, and any claims not included in the amended petition were no longer before the trial

court.

¶ 30 Defendant now contends he received unreasonable assistance of counsel based

solely on the failure to review discovery claim. However, this claim was not sufficiently

realleged in the amended petition, and defendant makes no claim postconviction counsel

provided unreasonable assistance by failing to include it. Because the amended petition did not

include the failure to review discovery as an independent claim, the issue was never properly

before the trial court. Defendant cannot now argue counsel provided unreasonable assistance for

failing to properly support a particular issue if the issue he appeals was never presented to the

court. Defendant’s unreasonable assistance of postconviction counsel claim is therefore waived.

-7- ¶ 31 Although defendant waived his unreasonable assistance claim in this appeal, he is

not “entirely without recourse.” People v. Jones, 211 Ill. 2d 140, 148 (2004). Defendant may

raise the above issues in a successive postconviction petition. Id. To succeed on a claim raised in

a successive petition, the defendant must “demonstrate ‘cause’ for failing to raise the error in

prior proceedings and actual ‘prejudice’ resulting from the claimed error.” Id. at 149 (citing

People v. Orange, 195 Ill. 2d 437, 449 (2001)).

¶ 32 B. Rule 651(c) Certificate of Compliance

¶ 33 Next, defendant contends counsel’s Rule 651(c) certificate is deficient on its face.

We agree with defendant, but for the reasons stated below, we find the error harmless.

¶ 34 Rule 651(c) provides for postconviction counsel to file a certificate where counsel

attests to compliance with the rule. Cotto, 2016 IL 119006, ¶ 27. The certificate must affirm

counsel consulted with the defendant regarding his or her constitutional claims, examined the

record of proceedings, and made any amendments necessary to the pro se petition for an

adequate presentation of the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 35 “Unlike other supreme court rules, however, the certificate requirement in Rule

651(c) is not a rule of strict compliance.” People v. Williams, 186 Ill. 2d 55, 59 n.1 (1999).

Counsel may either file a Rule 651(c) certificate or “the record as a whole may demonstrate that

postconviction counsel complied with those requirements.” People v. Jennings, 345 Ill. App. 3d

265, 271 (2003). If counsel files a valid Rule 651(c) certificate, a rebuttable presumption arises

“ ‘that counsel acted reasonably and complied with the rule.’ ” People v. Beasley, 2017 IL App

(4th) 150291, ¶ 39 (quoting People v. Wallace, 2016 IL App (1st) 142758, ¶ 25).

¶ 36 But if counsel fails to file a valid certificate of compliance, the reviewing court

cannot assume counsel complied with Rule 651(c). Jennings, 345 Ill. App. 3d at 271 (quoting

-8- People v. Carter, 223 Ill. App. 3d 957, 962 (1992)). Instead, the court must examine the record

for an “ ‘explicit showing’ ” demonstrating counsel fulfilled Rule 651(c)’s three requirements.

Id. The court will find the failure to file a valid certificate harmless only if the record indicates

counsel adequately satisfied the duties mandated by Rule 651(c). People v. Guest, 166 Ill. 2d

381, 412 (1995).

¶ 37 Here, counsel’s Rule 651(c) certificate stated, “Amendments to the petition filed

pro se are required for an adequate representation of petitioner’s contentions.” This stands in

contrast to the preceding statements on the certificate, which assert, “I have consulted with the

petitioner via telephone to ascertain his contentions of deprivation of constitutional rights,” and

“I have examined relevant records of the trial proceedings and other documents and/or

evidence.” (Emphases added). Unlike the prior statements, counsel’s statement on the necessary

amendments did not confirm whether counsel himself fulfilled the third requirement mandated

by Rule 651(c). Rather, counsel merely stated amendments are required, without attesting to

whether counsel actually made the necessary amendments.

¶ 38 Moreover, the text of the certificate misstates counsel’s duty under Rule 651(c).

Amendments to the pro se petition are not always necessary. Only amendments for an adequate

presentation of a defendant’s claims are required, which means in some instances, no

amendments are necessary. Because the certificate does not adequately convey whether counsel

understood his duty regarding necessary amendments under Rule 651(c), we find the certificate

failed to comply with Rule 651(c).

¶ 39 Although we find the Rule 651(c) certificate deficient on its face, the record

otherwise demonstrates counsel adequately fulfilled his duties under Rule 651(c). First, counsel

consulted with defendant through the exchange of several letters. See Ill. S. Ct. R. 651(c) (eff.

-9- July 1, 2017) (permitting postconviction counsel to consult with petitioner about his or her

constitutional claims by mail). Second, counsel’s arguments in his filings and at the dismissal

hearing demonstrated his familiarity with the record of proceedings at trial. And third, counsel

filed an amended petition, which realleged two of defendant’s pro se ineffective assistance of

trial counsel claims and included five new attachments in support of those claims.

¶ 40 We note counsel was not obligated to raise every claim from defendant’s pro se

petition to satisfy his duty under Rule 651(c). “Fulfillment of the third obligation under Rule

651(c) does not require postconviction counsel to advance frivolous or spurious claims on

defendant’s behalf. If amendments to a pro se petition would only further a frivolous or patently

nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.” People v. Greer,

212 Ill. 2d 192, 205 (2004).

¶ 41 Accordingly, although postconviction counsel filed a deficient Rule 651(c)

certificate, we find the error harmless as the record demonstrates counsel adequately satisfied his

duties under the rule.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the trial court’s judgment.

¶ 44 Affirmed.

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