People v. Barlow

2023 IL App (3d) 210380-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 210380-U

Order filed March 22, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0380 v. ) Circuit No. 13-CF-426 ) ANTHONY D. BARLOW, ) Honorable ) Katherine S. Gorman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAVENPORT delivered the judgment of the court. Justices McDade and Brennan concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defendant failed to make a substantial showing that trial counsel was ineffective. Subsequent postconviction counsel who represented defendant at the hearing on the State’s motion to dismiss was not required to independently show compliance with Rule 651(c).

¶2 Defendant, Anthony D. Barlow, appeals the second-stage dismissal of his postconviction

petition. Defendant argues that he made a substantial showing that his trial counsel provided

ineffective assistance by failing to inform him of a plea offer. Defendant also argues that the matter

should be remanded for further proceedings because postconviction counsel who represented him at the hearing on the State’s motion to dismiss failed to file an Illinois Supreme Court Rule 651(c)

(eff. July 1, 2017) certificate and the record does not establish that counsel complied with that rule.

We affirm.

¶3 I. BACKGROUND

¶4 The State charged defendant with armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and

later added a charge of first degree murder (id. § 9-1(a)(3)). Before adding the first degree murder

charge, during an August 30, 2013, hearing at which defendant was present, the State told the court

that it had made an offer to the defense that expired that day and, if the offer was not accepted, the

State was going to add a first degree murder charge. The State also noted its understanding was

that defendant had rejected the offer.

¶5 At a scheduling conference on November 1, 2013, with defendant present, the State noted

that it had given a revised offer to defendant that day and its understanding was that defendant

rejected it. Trial counsel said that the State “did tender to me today a new offer. I did convey that

to [defendant] and, for the record, [defendant] did reject that.” On the day defendant’s jury trial

began, November 12, 2013, trial counsel said

“for the record, at one point in time, an offer was conveyed to [defendant].

[Defendant] rejected that offer. And then at the pretrial just ten days ago, the State

gave me a new offer which I then proceeded to give that to [defendant], a floor and

then the ceiling with it. I conveyed that to [defendant]. [Defendant] again rejected

that.

So, for the record, I want to make sure that all parties are clear. You didn’t

want to take that offer?”

2 Defendant responded “Right, exactly.” The matter proceeded to trial and defendant was found

guilty on both charges.

¶6 Trial counsel filed a motion for a new trial, and defendant filed a pro se motion arguing

ineffective assistance of counsel for failing to investigate Robert Buford as a witness. The court

appointed posttrial counsel to argue defendant’s ineffective assistance claim. During the hearing

appointing posttrial counsel, the court noted that it had received correspondence from defendant

alleging an additional ineffective-assistance issue: “something about the timing of when a plea

offer was given or something.” Posttrial counsel filed another motion for a new trial. The motion

incorporated trial counsel’s motion and defendant’s filing and also alleged ineffective assistance

for failing to make certain objections.

¶7 At the hearing on the motions on February 27, 2014, defendant testified that trial counsel

was ineffective regarding the conveyance of an offer. Defendant stated that “when [trial counsel]

came the day before—the 29th of August I think, and *** my court date was the 30th, she told me

the reason she didn’t bring me the offer, say anything about the offer is because she knew I wasn’t

going to take it.” Posttrial counsel asked, “If I understand your court filing to be correct, *** you

stated that the offer was conveyed to you somewhere on or about August 29th of last year?”

Defendant responded affirmatively. Posttrial counsel then asked, “So it was before your trial?”

Defendant replied, “No, it was the day before. The next day, they said that was the deadline ***

for that offer.” When asked if he gave trial counsel an answer to the offer, defendant said, “I told

her no.” The State asked, “So you didn’t accept the offer?” and defendant responded “Exactly.”

¶8 The court denied the motions. It sentenced defendant to 35 years’ imprisonment. Defendant

appealed arguing that trial counsel was ineffective for failing to (1) investigate and call Buford as

3 a witness, and (2) request a jury instruction regarding accomplice-witness testimony. This court

affirmed. People v. Barlow, 2016 IL App (3d) 140334-U.

¶9 Defendant, as a self-represented litigant, filed a postconviction petition. Among other

issues, defendant alleged trial counsel provided ineffective assistance in regard to a plea offer and

appellate counsel was ineffective for failing to raise this issue. Defendant argued that “[h]ad trial

counsel properly informed [him] in instant case of the State’s plea offer, there was the possibility

of the acceptance of plea by the court given that the court was not co[m]fortable with the current

imposed minimum sentence.” Defendant attached a transcript page from the hearing on his motion

for new trial wherein he testified about his claim of ineffective assistance of counsel regarding the

failure to convey a plea offer.

¶ 10 The court advanced the petition to the second stage and appointed postconviction counsel,

Dennis Merkley. Merkley filed a Rule 651(c) certificate and supplemented defendant’s petition by

including additional language and legal citations regarding ineffective assistance of trial counsel.

¶ 11 The State moved to dismiss. Relevant here, the State noted the transcript attached to

defendant’s petition showed defendant knew of the offer before it expired.

¶ 12 Before the court conducted a second-stage hearing, public defender Maggi Wettstein

replaced Merkley. She filed a supplemental postconviction petition which incorporated

defendant’s filing. The petition argued that the plea offered by the State was “a 15 year plea deal

which counsel never advised [defendant] of before she turned it down.” In support, Wettstein

attached an affidavit from defendant alleging that the allegations were true and correct. She also

attached a memorandum of offer dated August 20, 2013. The memo said the State offered

defendant 20 years’ imprisonment and that, if rejected, the State would file first degree murder

charges. The memo also said the offer expired at the scheduling conference on August 30, 2013.

4 Finally, Wettstein attached a transcript page from the November 1, 2013, scheduling conference,

which indicated the State made a revised offer to defendant and defendant had rejected it.

¶ 13 Wettstein also filed a response to the State’s motion to dismiss. She argued trial counsel

failed to inform defendant regarding the plea deal. Further, although defendant knew of a plea

offer before trial, the details were not communicated to him and he did not become aware of the

details until after trial. Additionally, trial counsel did not provide defendant enough information to

know what the offer was so that he could not make an informed decision.

¶ 14 The court dismissed the petition, and this appeal followed.

¶ 15 II. ANALYSIS

¶ 16 A. Substantial Showing

¶ 17 Defendant argues the circuit court erred in dismissing his postconviction petition because

he made a substantial showing that trial counsel was ineffective for failing to inform him of the

State’s initial plea offer.1

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a three-

stage process for a criminal defendant to assert that his conviction resulted from a substantial denial

of his rights under the United States Constitution, the Illinois Constitution, or both. People v.

Hodges, 234 Ill. 2d 1, 9 (2009). At the second stage, “the defendant bears the burden of making a

substantial showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

Additionally, “all well-pleaded facts that are not positively rebutted by the trial record are to be

taken as true, and, in the event the circuit court dismisses the petition at that stage, we generally

review the circuit court’s decision using a de novo standard.” Id.

1 Although Wettstein, in some filings, framed defendant’s argument as the failure to fully explain the plea offer to him, on appeal, defendant only argues that he made a substantial showing that counsel failed to inform him of a plea offer, and therefore, we limit our analysis to that argument. 5 ¶ 18 Although we recognize that the failure to convey a plea offer can amount to ineffective

assistance of counsel (see, e.g., Missouri v. Frye, 566 U.S. 134, 145 (2012)), we find defendant

failed to make a substantial showing of ineffective assistance because his claim is rebutted by the

record. Specifically, at the hearing on his motion for new trial, defendant testified that counsel

conveyed an offer to him the day before it expired and that he rejected that offer. Additionally, a

memorandum attached by Wettstein in support of the supplemental petition contradicts

defendant’s assertion that the State made him a 15-year offer because it expressly provided a 20-

year offer.

¶ 19 Defendant argues that it is unclear that his petition was based upon the same offer as his

motion for new trial. His argument is rebutted by the record. Notably, defendant attached a

transcript page with testimony from the motion for new trial as support for his petition, which

would be useless unless it pertained to the same offer. Further, Wettstein supported the allegations

of the supplemental petition with a memorandum detailing an offer with an August 30, 2013,

deadline, Defendant’s testimony at the hearing on the motion for new trial indicates it concerned

the State’s offer that expired on August 30, 2013, because defendant said the offer was conveyed

to him the day before his court date and the day before it expired. He further testified that he

believed the offer was conveyed to him on August 29 and his court date was August 30, which is

supported by the record as transcripts show that defendant was in court on August 30 and the State

represented that it had made defendant an offer which was expiring that day.

¶ 20 The only other offer defendant’s petition could be referencing based on the supporting

documentation—namely the transcript page concerning a revised offer which Wettstein attached

to the supplemental petition—was the revised offer the State made to defendant at the scheduling

conference on November 1, 2013. But any claim in regard to that offer would also be positively

6 rebutted by the record. The transcripts show that, in defendant’s presence, counsel told the court

that she conveyed the offer to defendant and he rejected it, facts defendant confirmed in open court.

¶ 21 Based on the foregoing, we conclude that the circuit court properly dismissed defendant’s

petition.

¶ 22 B. Rule 651(c) Compliance

¶ 23 In his opening brief, defendant also contended the matter should be remanded because

Wettstein failed to file a Rule 651(c) certificate and the record fails to establish that she complied

with the rule. He argued the rule required compliance by the attorney who ultimately represented

defendant at the State’s motion to dismiss and that a Rule 651(c) certificate filed by an attorney

that no longer represented him did not satisfy the rule’s requirements. Defendant also argued that

People v. Smith, 2020 IL App (1st) 181220, ¶ 23—which held that new postconviction counsel

who replaced prior postconviction counsel before the hearing on the State’s motion to dismiss

“was not required to duplicate [prior postconviction counsel’s] efforts and independently perform

the duties specified in Rule 651(c) in order to provide reasonable assistance at the motion

hearing”—was wrongly decided. At the time defendant filed his opening brief, our supreme court

had granted leave to appeal in Smith but had not yet issued its opinion. In his reply brief, while not

conceding this issue, defendant acknowledges our supreme court had by then issued its opinion in

Smith and declined to provide any further argument.

¶ 24 In People v. Smith, 2022 IL 126940, ¶¶ 15, 19, 29, our supreme court affirmed the appellate

court and rejected arguments nearly identical to those raised in defendant’s opening brief.

Accordingly, Wettstein was not required to independently establish compliance with Rule 651(c).

As stated in Smith, “[b]y virtue of [prior postconviction counsel] filing a Rule 651(c) certificate, a

rebuttable presumption arose that petitioner received reasonable assistance of postconviction

7 counsel. [Citation.] Petitioner did not seek to rebut that presumption.” Id. ¶ 29. Similarly here,

there is no dispute that Merkley filed a Rule 651(c) certificate and thus, there is a presumption that

defendant received reasonable assistance of postconviction counsel. Defendant did not seek to

rebut that presumption. As such, defendant is not entitled to remand for further second-stage

proceedings.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the judgment of the circuit court of Peoria County.

¶ 27 Affirmed.