2023 IL App (1st) 220841-U No. 1-22-0841
FIRST DIVISION October 10, 2023
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 JUDICIAL DISTRICT ____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 16 CR 9001 ) A.O.N, ) ) The Honorable Defendant-Appellant. ) Mark W. Martin, ) Judge Presiding.
____________________________________________________________________________
JUSTICE Pucinski delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment.
ORDER
¶1 Held: The circuit court’s second-stage dismissal of defendant’s postconviction petition is affirmed where postconviction counsel provided reasonable assistance at second stage of postconviction proceedings when counsel filed a facially valid Rule 651(c) certificate, and defendant did not overcome the presumption of reasonable assistance when he did not demonstrate his attorney failed to substantially comply with the duties mandated by Rule 651(c)
¶2 BACKGROUND
¶3 Defendant, A.O.N., was charged by indictment with two counts of aggravated criminal sexual
assault, eighteen counts of criminal sexual assault, and six counts of aggravated criminal sexual 1-22-0841
abuse committed against 14-year-old A.A. Following a Rule 402 conference, defendant pled guilty
to one count of aggravated criminal sexual assault, in that he knowingly committed an act of sexual
penetration upon A.A., by the use of force or threat of force, causing bodily harm, to wit: pain and
bleeding. 720 ILCS 5/11-1.30(a)(2) (West 1992). At that time, the State presented the following
offer of proof:
“If this matter proceeded to trial, the State would have produced the following evidence
proving the following beyond a reasonable doubt. Your honor, the State would have called
the minor child. A.A. She would have testified that between the dates of April 1, 2016 and
May the 6th of 2016, she was 14 years old. She was living at…County of Cook, State of
Illinois. Also living there, among others, was the defendant who she would be able to
identify in open court. Defendant was above the age of 18.”
“Defendant was related to her and was her half uncle. A.A. would have testified that
another person living there was her mother and her mother would work Friday nights
during the late shift.”
“She would testify prior to the time period of April 1, 2016 and May 6th of 2016, the
defendant had had non-consensual sexual encounter with her. In early April of 2016 during
one of the Friday nights when her mother was working, the defendant approached her and
without her consent and through the use or threat of force, he inserted his penis into the
minor child victim A.A.’s vagina.”
“She told him to stop and he did not listen and continued the penetration. Eventually, the
defendant ejaculated. The defendant then told the victim that he was only trying to teach
her what she needed to learn to be a grown woman.”
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“The victim then ran to the bathroom and saw that she was bleeding. She cried out to the
defendant about the blood. The defendant said that it was just normal. After several other
but similar encounters, on May 13th of 2016, the victim made an outcry to a family friend.”
¶4 On January 12, 2018, the trial court sentenced him to 14 years’ imprisonment in the Illinois
Department of Corrections. Defendant did not file a motion to withdraw his plea or challenge his
plea on direct appeal.
¶5 On August 26, 2020, defendant mailed a pro se postconviction petition, alleging that his trial
counsel was ineffective for (1) pressuring defendant to accept a plea agreement which conflicted
with the evidence and the law because the victim did not suffer any bodily harm and he was not
related to the victim; (2) his plea was involuntary due to his self-asserted ignorance as shown by
his low “TABE” score; and (3) failing to properly investigate evidence such as emails, text
messages, and photos, which would have shown the true nature of the relationship between
defendant and the victim, and show that defendant did not know that the victim was under the age
of 17. Defendant asserted in his petition that his contentions could be supported by “hospital
records,” an “IDOC Statement of Facts,” police reports showing no complaints filed against
defendant before the date of his arrest, as well as the emails, text messages and photos between
him and the victim. To his petition, he attached, in pertinent part, a typewritten document entitled
“Statement of Facts[;]” a copy of his TABE scores, as well as a handwritten motion to withdraw
his guilty plea.
¶6 Subsequently, on October 9, 2020, defendant filed a pro se supplement to his postconviction
petition. In the supplemental petition, defendant admitted that “the last time this petitioner engage
[sic] in a sexual congress with [A.A.] was 8 days, more than a week before this petitioner’s arrest.”
(emphasis omitted). The supplemental petition included defendant’s birth certificate, showing a
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date of birth of August 6, 1995, along with an affidavit from defendant’s mother, written in
Spanish, stating that defendant was not related to A.A.
¶7 On November 20, 2020, the circuit court advanced defendant’s petition to the second stage
and appointed postconviction counsel. On that date, the hearing was heard via video conference.
The circuit court stated that it could not provide any further explanation regarding the allegations
because “the file and my notes and an outline of my ruling [is] on my credenza at the courthouse,
but…I have not been at the courthouse since last Thursday so I can’t put together the reasons for
the ruling.”
¶8 On April 16, 2021, postconviction counsel informed the circuit court that she had ordered the
transcript for this case.
¶9 On September 9, 2021, postconviction counsel filed a Rule 651(c) certificate, in which counsel
averred:
1. I have consulted with the [defendant] personally or by letter to ascertain his
contentions of deprivations of constitutional rights.
2. There was not an appeal in this case.
3. I have reviewed the trial file of the public defender.
4. I have reviewed the court file looking specifically at any and all Pre-trial
Motions for discovery and Motions for a new trial.
5. I have reviewed the laws for 720 ILCS 5/11-1.30(A)(2).
6. I have obtained and examined the transcript of his plea and sentencing in this
case.
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7. I have not filed an Amended Petition for Post-Conviction Relief. The pro se
petitions sets forth the petitioner’s claims of a violation of due process rights
constitutional rights.
¶ 10 On October 29, 2021, postconviction counsel stated:
I did, in fact - - I filed a 651(c), I don’t know if you received that, I sent it both to
you as well as your clerk. After speaking with [defendant], I did explain to him
what I was doing as well as sending him letter to submit that. However, I mean, I -
- I haven’t received anything to support some of the claims that [defendant] had in
his petition. So, I did file a 651(c) this morning, your Honor.
¶ 11 On February 18, 2022, the State filed a Motion to Dismiss. As to defendant’s claim of
ineffective assistance of trial counsel for failing to investigate text messages exchanged between
defendant and A.A., which would support a defense of consent, the State argued that defendant
failed to introduce any evidence to support the assertion that he requested his trial counsel to
investigate the text message exchanges or provide any information about the content of the alleged
messages. Regarding the defense of consent, the State argued that mistake of age was not a viable
defense to the offense of aggravated criminal sexual assault.
¶ 12 As to the text messages, the State argued that defendant failed to demonstrate that he was
prejudiced by his trial court’s failure to investigate the cell phone messages between himself and
A.A. The State noted that defendant represented himself for more than six months and failed to
obtain the alleged exculpatory evidence during that time, and he failed to offer any evidence or
support to explain his own efforts to investigate or obtain the text messages. As to defendant’s
claim that he did not cause bodily harm to A.A., the State argued that this claim is belied by the
fact that defendant pled guilty to this element.
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¶ 13 Regarding defendant’s contention that his plea was involuntary because he was “ignorant”
and received a low “TABE” score, the State responded that defendant failed to include an affidavit
regarding the significance of the score and he did not include the method or date of testing.
Moreover, the TABE testing score that defendant included in his petition related only to
defendant’s reading comprehension and was silent about his abilities to understand Spanish or
English. Moreover, defendant received the assistance of a court-appointed Spanish interpreter
during his plea.
¶ 14 The State also pointed out that defendant’s plea took place after a Rule 402 conference after
defendant requested this procedure, and the purpose of this conference was to ensure defendant
understood his plea, the rights he was waiving, and the consequences of his actions. During the
plea hearing, defendant did not hesitate to ask for further explanation when he stated that he did
not understand something, the trial court provided further explanation, and defendant answered
appropriately to the questions asked of him.
¶ 15 On June 10, 2022, at the hearing on the State’s motion to dismiss, both parties rested on their
written motions. In granting the State’s motion to dismiss, the circuit court found that there was
no support for defendant’s claim that his trial counsel forced him to plead guilty. The court pointed
out that counsel negotiated a beneficial plea deal which prevented defendant from the possibility
of being sentenced to consecutive sentences, and defendant did not express any reluctance or
hesitation in pleading guilty.
¶ 16 The circuit court also ruled that defendant’s contention that his guilty plea was involuntary was
contradicted by the record. The circuit court found that defendant was properly admonished, had
the assistance of a court certified interpreter, did not voice any words to show that his plea was
involuntary, and indicated that he understood the trial court’s questions. The circuit court found
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that defendant did not present any evidence to suggest that his guilty plea was involuntary.
Regarding his low TABE score, the circuit court determined that voluntariness “is tested to
proceedings that occur in open court and is not based on post hoc academic tests or academic test
scores…” Regarding defendant’s claim that his trial counsel was ineffective for failing to
investigate text messages and a consent defense, the circuit court found that, in pleading guilty,
defendant waived all non-jurisdictional claims. Therefore, the circuit court granted the State’s
motion to dismiss.
¶ 17 ANALYSIS
¶ 18 On appeal, defendant argues that his postconviction counsel failed to render reasonable
assistance by fulfilling her obligations under Supreme Court Rule 651(c). Specifically, defendant
alleges that, despite filing a Rule 651(c) certificate: (1) counsel’s certificate was facially deficient
because counsel failed to certify that she made any amendments to his petition that were necessary
for an adequate presentation of defendant’s claims; (2) counsel made no amendments to the pro se
petition and did not offer a written or oral response to the State’s motion to dismiss; and (3) counsel
did not move to withdraw.
¶ 19 The Act provides a three-stage process for a criminal defendant to allege that his conviction
was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1 et seq. (West
2018). In this case, the circuit court dismissed defendant’s petition at the second stage. At the
second stage, counsel may be appointed to an indigent defendant (725 ILCS 5/122-4 (West 2018)),
and the State, as the respondent, enters the litigation. (725 ILCS 5/122-5 (West 2018). The circuit
court must determine whether the petition and any accompanying documentation make a
substantial showing of a constitutional violation. People v. Cotto, 2016 IL 119006, ¶ 28. At this
stage, all well-pleaded facts that are not positively rebutted by the trial record are to be taken as
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true. People v. Pendleton, 223 Ill.2d 458, 473 (2006). The court reviews the petition’s factual
sufficiency as well as its legal sufficiency considering the trial court record and applicable law.
People v. Ryburn, 2019 IL App (4th) 170779, ¶ 22 (citing People v. Alberts, 383 Ill.App.3d 374,
377 (4th Dist. 2008)). If the defendant makes such a showing, then he is entitled to a third-stage
evidentiary hearing. 725 ILCS 5/122-6 (West 2014). We review de novo the circuit court’s
dismissal of a postconviction petition at the second stage. Pendleton, 223 Ill.2d at 473.
¶ 20 At the second stage, postconviction counsel may amend the petition, and the State may move
to dismiss it. Cotto, 2016 IL 119006, ¶ 27 (citing 725 ILCS 5/122-4 (West 2010). The Act provides
for a “reasonable” level of assistance from counsel. Pendleton, 223 Ill.2d at 472. “This is because
the right to counsel in postconviction proceeds is statutorily rather than constitutionally derived.”
People v Smith, 2022 IL 126940, ¶ 13 (citing People v. Turner, 187 Ill.2d 406, 410 (1999)).
¶ 21 “Commensurate with the lower reasonable assistance standard mandated in postconviction
proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017) sharply limits the requisite duties
of postconviction counsel.” People v. Custer, 2019 IL 123339, ¶ 32. To assure reasonable
assistance, Rule 651(c) imposes specific duties on postconviction counsel. Turner, 187 Ill.2d at
410. The rule’s primary purpose is to ensure that counsel shapes the defendant’s claims, contained
in the pro se petition, into proper legal form and presents them to the court. People v. Kuehner,
2015 IL 117695, ¶ 20. Pursuant to Rule 651(c), when counsel is appointed to represent defendant
at the second stage, postconviction counsel must consult with the defendant to ascertain his
contentions of deprivation of constitutional rights, examine the record of the proceedings and the
trial, and make any amendments to the pro se petition that are necessary to adequately present the
defendant’s contentions. People v. Urzua, 2023 IL 127789, ¶ 33 (citing Ill. S. Ct. R. 651(c) (eff.
July 1, 2017).
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¶ 22 Thus, the filing of a Rule 651(c) certificate creates a rebuttable presumption that postconviction
counsel provided the defendant with reasonable assistance. People v. Addison, 2023 IL 127119, ¶
21; People v. Custer, 2019 IL 123339, ¶ 32. Additionally, the certificate is counsel’s official
representation to the court that he has fulfilled the duties listed therein. People v. Perkins, 229
Ill.2d 34, 50 (2007). If postconviction counsel files a certificate, “[i]t 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; See also
Addison, 2023 IL 127119, ¶ 21.
¶ 23 A. Postconviction Counsel’s Rule 651(c) Certificate Was Sufficient
¶ 24 We first consider the threshold issue of whether postconviction counsel’s certificate filed
pursuant to Rule 651(c) was facially sufficient. “‘Because the question presented in this appeal
concerns the proper interpretation of a supreme court rule, our review is de novo.’” People v. Smith,
2022 IL 126940, ¶ 12 (quoting People v. Suarez, 224 Ill.2d 37, 41-42 (2007). As our supreme court
recognized, “‘When interpreting our supreme court rules, we apply the same principles of
construction applicable to statutes.’” Smith, 2022 IL 126940, ¶ 12 (quoting People v. Perkins, 229
Ill.2d 34, 41 (2007)). Courts “endeavor to ascertain and give effect to the drafter’s intent, which is
most reliably indicated by the language of the provision under consideration.” Id. (citing In re
Estate of Rennick, 181 Ill.2d 395, 404-05 (1998)).
¶ 25 Specifically, Rule 651(c) provides in relevant part:
“The record filed in that court shall contain a showing, which may be made by the
certificate of petitioner’s attorney, that [(1)] the attorney has consulted with
petitioner by phone, mail, electronic means or in person to ascertain his or her
contentions of deprivation of constitutional rights, [(2)] has examined the record of
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the proceedings at the trial, and [(3]) 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).
¶ 26 “Substantial compliance with the rule is sufficient.” People v. Landa, 2020 IL App (1st)
170851, ¶ 45 (citing People v. Profit, 2012 IL App (1st) 101307, ¶ 18. Strict compliance is not
required. People v. Collins, 2021 IL App (1st) 170597, ¶ 30. Moreover, counsel’s certificate does
not need to mirror the language of Rule 651(c) precisely. Landa, 2020 IL App (1st) 170851, ¶ 49.
¶ 27 Here, on September 9, 2021, postconviction counsel filed a Rule 651(c) certificate, in which
counsel averred:
1. I have consulted with the [defendant] personally or by letter to ascertain his contentions of
deprivations of constitutional rights.
4. I have reviewed the court file looking specifically at any and all Pre-trial Motions
for discovery and Motions for a new trial.
6. I have obtained and examined the transcript of his plea and sentencing in this case.
7. I have not filed an Amended Petition for Post-Conviction Relief. The pro se
petitions sets forth the petitioner’s claims of a violation of due process rights
¶ 28 Defendant initially contends that the Rule 651(c) certificate filed in this case was facially
invalid where the Rule requires that the certificate state that counsel has made any amendments to
the pro se petition that are necessary for an “adequate” presentation of defendant’s contentions.
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He points out that counsel only certified that she did not file an amended petition because the “pro
se petition sets forth [defendant’s] claims of a violation of due process rights constitutional rights.”
¶ 29 In essence, defendant’s argument is that when counsel attested that she did not file an amended
petition, because defendant’s pro se petition set forth his claims of constitutional violations, it is
not synonymous with counsel attesting that he or she made amendments to the pro se petition that
are necessary for an adequate presentation of defendant’s constitutional claims. Defendant’s
argument is unpersuasive. We find that counsel’s certificate shows that it substantially complied
with the duties mandated by Rule 651(c) where it closely tracked the language of the rule itself.
Postconviction counsel recognized the necessity for filing an amended petition if her assessment
of defendant’s pro se petition showed that it did not present his constitutional claims. Under these
circumstances, where postconviction counsel determined that an amended petition should not be
filed, she just chose to phrase her attestations to explain why she chose not to do so. Postconviction
counsel explained that her decision to not file an amended petition was due to her assessment that
defendant’s pro se petition set forth defendant’s constitutional claims. The use of this language,
while it does not mirror the exact language of the rule, more effectively explains postconviction
counsel’s decision to not file an amended petition. Defendant’s suggestion that postconviction
counsel’s 651(c) certificate was facially invalid, therefore, fails.
¶ 30 Notably, defendant also argues that the State has the burden of showing that postconviction
counsel’s certificate substantially complied with the rule, citing to People v. Suarez, 224 Ill.2d 37
(2007). However, the facts in Suarez differ in that the postconviction counsel in that case failed to
file any Rule 651(c) certificate. Id. at 42. Instead, it is widely recognized that “[i]t is the defendant’s
burden to overcome this presumption [of compliance] by demonstrating his attorney’s failure to
substantially comply with the duties mandated by Rule 651(c).” People v. Profit, 2012 IL App
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(1st) 101307, ¶ 19; accord People v. Turner, 2023 IL App (1st) 191503, ¶ 26; People v. James,
2023 IL App (1st) 192232, ¶ 37; People v. Poole, 2022 IL App (4th) 210347, ¶ 101; People v.
Landa, 2020 IL App (1st) 170851, ¶ 46.
¶ 31 Defendant also argues that there is nothing on the face of the Rule 651(c) certificate to show
the steps taken by counsel to “shape[] the petitioner’s claim into proper legal form and present
those claims to the court.” In making this argument, defendant, again, fails to recognize that the
burden is on him to establish that his postconviction counsel failed to substantially comply with
the duties mandated by Rule 651(c), and he does not point to anything in support of his argument.
Moreover, in this case, there is no need to look any further than the Rule 651(c) certificate in
making this determination. Postconviction counsel’s attestations in her Rule 651(c) certificate
showed that she “personally or by letter” consulted with defendant to ascertain his contentions of
constitutional violations; reviewed the “trial file” of the public defender assigned at the trial level;
reviewed the court file, including all pre-trial motions for discovery and motions for a new trial;
reviewed “the laws for 720 ILCS 5/11-1.30(A)(2)[;] and examined the transcript from the plea
hearing and sentencing hearing.
¶ 32 In this case, postconviction counsel filed a valid Rule 651(c) certificate, creating a
presumption that defendant received reasonable assistance.
¶ 33 B. Defendant Did Not Overcome The Presumption of Reasonable Assistance.
¶ 34 Next, defendant contends that he did not receive reasonable assistance of postconviction
counsel where counsel “did not expressly concede to the State’s motion to dismiss,” but effectively
did so by failing to: (1) amend his pro se postconviction petition; (2) file a written response to the
State’s motion; or (3) make any arguments during the motion to dismiss hearing. Defendant
contends that postconviction should have amended his pro se postconviction petition to adequately
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present his claim of error, and respond to the State’s motion, or, in the alternative, withdraw from
the case, thereby allowing defendant to advance his case on his own or through new counsel.
¶ 35 On this record, however, we find that defendant has failed to rebut the presumption that his
postconviction counsel provided reasonable assistance. Counsel filed a Rule 651(c) certificate,
which outlined her efforts to investigate defendant’s claims and stated her conclusion that the
petition adequately set them forth. This filing led to a rebuttable presumption that counsel provided
reasonable assistance, including the presumption that she took all reasonable efforts to investigate
defendant’s claims. Custer, 2019 IL 123339, ¶ 32. This placed the burden on defendant to rebut
the presumption of reasonable assistance. Landa, 2020 IL App (1st) 170851, ¶ 46.
¶ 36 Historically, when looking at whether a defendant was able to rebut the presumption of
reasonable assistance, our supreme court has found that a defendant has done so by relying upon
the presence of evidence in the record. For instance, in People v. Johnson, 154 Ill.2d 227, 243
(1993), our supreme court found that defendant was able to rebut the presumption that
postconviction counsel provided reasonable assistance where counsel admitted on the record that
he or she was unable to obtain the affidavits of the witnesses “based upon my schedule.” In so
holding, our supreme court found that “…trial court’s ruling upon a motion to dismiss a post-
conviction petition which is not supported by affidavits or other documents may reasonably
presume that post-conviction counsel made a concerted effort to obtain affidavits in support of the
post-conviction claims, but was unable to do so.” Johnson, 154 Ill.2d at 241.
¶ 37 Again, in People v. Perkins, 229 Ill.2d 34, 52 (2007), our supreme court looked to whether
there was anything “in the record on appeal” that rebutted postconviction counsel’s certification
that there were no amendments necessary for an adequate presentation of the defendant’s claim
and found, however, that the record did not contradict counsel’s certification. Most recently, in
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People v Urzua, 2023 IL 127789, our supreme court held that counsel’s certification of compliance
created a rebuttable presumption of a reasonable level of assistance, “absent an affirmative
showing in the record.” Id. ¶ 54; see also People v. Wallace, 2016 IL App (1st) 142758, ¶ 27 (court
found that defendant’s argument that there was no affirmative evidence in the record to establish
that postconviction counsel did not seek out and examine all available evidence was “a reversal of
the presumption and corresponding burden…”
¶ 38 Here, defendant does not point to anything in the record to affirmatively rebut postconviction
counsel’s certification that she had complied with Rule 651(c). Instead, he solely relies upon
postconviction counsel’s failure to amend the petition as grounds. As our supreme court has
already found, postconviction counsel’s duties under Rule 651(c) “do not include bolstering each
and every claim presented in a petitioner’s pro se petition, regardless of its legal merit, or
presenting each and every witness or shred of evidence the petitioner believes could potentially
support his position.” Custer, 2019 IL 123339, ¶ 32. Counsel is not required to file an amended
petition in every case; amendments are necessary only when required to adequately present the
defendant’s claims. People v. Turner, 187 Ill.2d 406, 412 (1999). Thus, counsel may choose to
stand on the defendant’s unamended petition if it adequately presents his or her claims. People v.
Greer, 212 Ill.2d 192, 205-06 (2004). Here, because defendant’s argument is not based upon any
evidence in the record, he cannot affirmatively rebut postconviction counsel’s certification that
she complied with Rule 651(c).
¶ 39 Moreover, during the hearing on the State’s motion to dismiss, the State disputed the merits of
defendant’s claim of ineffective assistance of trial counsel for failing to investigate text messages,
emails and photos exchanged between defendant and the A.A., to support a defense of consent,
where consent in not an available defense in this case. We acknowledge that our supreme court
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implicitly recognized that the age of consent in Illinois is 17 in reviewing the sexual offenses
statutory framework. See People v. Lloyd, 2013 IL 113510, ¶ 30 (“[T]he prescribed age of consent
in Illinois is 17, although in a few instances where the accused is a family member or a person in
a position of trust or authority, the age of consent is 18 [citation].”); People v. Carter, 2022 IL App
(1st) 210261, ¶ 80; People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 60. Therefore, no matter
what the 14-year-old victim said or what defendant thought, a child less than 17, or in some cases,
less than 18 years of age, is too young to consent, so a minor’s alleged consent can never be an
effective defense and cannot be a defense here. As to whether evidence in the form of emails, text
messages, and photos may have existed on defendant’s phone to support a consent defense,
presumably defendant had or could have gotten access to this evidence, if the State had previously
confiscated this device, while he represented himself pro se by asking the judge to order the return
of the device or provide a certified thumb drive of material on the device. We also point out that
the decision to develop a consent defense was a matter of trial strategy where it is presumed that
the attorney would know the victim as a 14-year-old minor, was not an available defense. However,
we are not tasked with determining the merits of defendant’s underlying claims. Our supreme court
has also held that the reviewing court does not ask whether the defendant’s underlying claims in
his pro se postconviction petition were meritorious or not. People v. Addison, 2023 IL 127119, ¶
33.
¶ 40 Citing to People v. Greer, 212 Ill.2d 192 (2004), defendant argues that if postconviction
counsel could not amend the petition and provide the required affidavits, counsel was required to
withdraw. In Greer, the defendant argued that postconviction counsel the circuit court erred in
allowing postconviction counsel to withdraw from representing the defendant because it deprived
him of the statutory right to counsel. Greer, 212 Ill.2d at 196. However, our supreme court held
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that postconviction counsel is not required to advance “frivolous or spurious claims on defendant’s
behalf.” Moreover, if counsel were to file an amended petition containing such frivolous or
spurious claims, it “would appear to violate the proscriptions of Supreme Court Rule 137… Id. at
205; see Ill.S.Ct.R. 137 (eff. Jan. 1, 2018) (providing that an attorney’s signature on a document
represents that he or she is filing the document in good faith). Furthermore, our supreme court
found that there was nothing in the Act that required counsel to continue to represent a
postconviction defendant after counsel determines that defendant’s petitions is frivolous or
patently without merit. Id. at 209. Thus, Greer held that it is permissible for postconviction to
withdraw if he or she finds the defendant’s contentions are frivolous or patently without merit.
However, contrary to defendant’s suggestion, our supreme court did not hold that counsel must
withdraw in that instance. See People v. Turner, 2023 IL App (1st) 191503, ¶ 53.
¶ 41 Subsequent appellate decisions have recognized withdrawal as one option for an attorney faced
with a meritless postconviction petition. For instance, in People v. Pace, 386 Ill.App.3d 1056 (4th
Dist. 2008), the Fourth District found that counsel had two options when faced with meritless
claims: “stand on the allegations in the pro se petition and inform the court of the reason the
petition was not amended” or withdraw as counsel.
¶ 42 In People v. Malone, 2017 IL App (3rd) 140165, ¶ 10, the court rejected the defendant’s
argument that counsel provided unreasonable assistance when counsel should have amended the
petition or asked to withdraw. However, the reviewing court found:
“Postconviction counsel***is not required to amend a defendant’s pro se
postconviction petition. [Citation.] Ethical obligations prevent counsel from doing
so if the claims are frivolous. [Citation.] If the claims are frivolous, postconviction
counsel has the option of standing on the allegations in the pro se petition or to
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withdraw as counsel. [Citation.] Further, the defendant does not make any
recommendations as to how counsel could have improved the petition, other than
stating that counsel did not attach any affidavits supporting the claims.” Id. ¶ 10.
¶ 43 In reaching this conclusion, the Malone court rejected the defendant’s contention that if his
postconviction counsel could not amend the pro se petition, he should have withdrawn as counsel.
Id. ¶ 12. “Though [Greer] allows postconviction counsel to withdraw when the allegations of the
petition are without merit and frivolous, it does not compel withdrawal under such circumstances.”
Id. The court found that this amounted to a “distinction without a difference.” Id.
¶ 44 In addressing defendant’s claim in this case, we chose to follow People v. Bass, 2018 IL App
(1st) 152650, and recognize a significant factual difference with Greer. In Greer, the defendant’s
petition was advanced to the second stage by default because the circuit court did not rule on the
petition within the statutorily required 90-day period (725 ILCS 5/122-2.1 (West 2000)). In that
case, “there was never an initial determination as to [the] merits of the petition.” Greer, 212 Ill.2d
at 200. Under these circumstances, where a petition escapes first-stage review, Greer found that it
is untenable to require a lawyer to continue to represent the defendant if the lawyer reviews the
petition and finds that the petition is, in fact, frivolous or patently without merit. See Bass, 2018
IL App (1st) 152650, ¶ 19.
¶ 45 However, in the instant case, while the circuit court did not explicitly state that the petition was
not frivolous or patently without merit because his notes regarding his decision were not available
to him at that time, defendant’s petition was not advanced by default of the time limitations. As
we recognized in Bass, “[w]hen after conducting his investigation, [defendant’s] lawyer
determined that he could not obtain affidavits or other evidence to support it, the petition did not
ipso facto become frivolous or patently without merit, but it nevertheless remained defective, and
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counsel determined he was unable to cure that defect.” Bass, 2018 IL App (1st) 152650, ¶ 19. We
also note, parenthetically, that the supreme court may soon resolve this issue. People v. Huff, 2022
IL App (1st) 201278-U, pet. for leave to appeal allowed, No. 128492 (Sept. 28, 2022).
¶ 46 Similarly here, where counsel investigated defendant’s claim, reviewed the record and relevant
caselaw, and ultimately was unable to supplement the petition with additional evidence because
she “[had not] received anything to support some of the claims[,]” defendant’s petition did not ipso
facto become frivolous or patently without merit. Accordingly, defendant has not sustained his
burden to overcome the presumption that attaches to counsel’s Rule 651(c) affidavit.
¶ 47 We also address defendant’s contention that postconviction counsel’s decision to not proceed
with any further argument, orally or in writing, after the State filed its motion to dismiss, equated
to counsel “expressly conced[ing]” to the State’s motion. Defendant points out that in People v.
Shortridge, 2012 IL App (4th) 100663, ¶ 5, the reviewing court found that postconviction counsel
had provided unreasonable assistance when counsel stated that he was “going to confess the
motion to dismiss” after the State had filed its motion to dismiss. Citing to Greer, the court
determined that “[i]f counsel, in fact, found the allegations ‘nonmeritorious,’ even with any
necessary amendments, then he should have moved to withdraw as counsel, not confess the State’s
motion to dismiss.” Shortridge, 2012 IL App (4th) 100663, ¶¶ 13-14.
¶ 48 In support, defendant cites to Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc.,
118 Ill.2d 389 (1987), for the proposition that postconviction counsel’s decision to not respond
orally or in writing to the State’s motion to dismiss equated to counsel expressly conceding to the
State’s motion. He argues that Spinelli held that “the failure to respond to the argument of an
opponent results in a forfeiture of the right to challenge the opponent’s argument[.]” However,
defendant’s reliance upon Spinelli is misplaced. In that case, the reviewing court pointed out the
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defendant waived an argument on appeal by failing to raise it at the trial level, but that the State,
“by failing to adequately brief or argue the issue in this court, has waived the issue.” Spinelli, 118
Ill.2d at 401. In its holding, the court cited to Illinois Supreme Court Rule 341(e)(7), which held
at that time that, in filing a brief before a reviewing court, “Points not argued are forfeited…” (Ill.
Sup. Ct. R. 341(e)(7)). Thus, our supreme court was referring to the Illinois Supreme Court rules
applicable to cases on appellate review; not to the decision of counsel during a postconviction
proceeding to respond to an argument made by the State in its motion to dismiss. In fact, defendant
does not cite to any case for the proposition that postconviction counsel must respond to the State’s
motion to dismiss either in writing or orally. He also does not cite to any case for the proposition
that the decision by postconviction counsel to stand on the defendant’s postconviction counsel
therefore equates to counsel conceding to the motion to dismiss. There are many times throughout
a criminal proceeding in which defense counsels decide to not make any further argument
regarding their position. We cannot hold that the decision to proceed in this manner thereby equates
to conceding to the State’s position on the subject matter.
¶ 49 Thus, postconviction counsel filed a valid Rule 651(c) certificate, creating a presumption that
defendant received reasonable assistance. We further find that defendant has failed to rebut the
presumption that postconviction counsel provided reasonable assistance by relying upon counsel’s
decision to not file an amended petition, make any oral or written response to the State’s motion
to dismiss, or file a motion to withdraw.
¶ 50 CONCLUSION
¶ 51 Therefore, for the foregoing reasons, we affirm the judgment of the circuit court of Cook
County.
¶ 52 Affirmed.
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