People v. Bassett

2023 IL App (4th) 220414

Opinion

NOTICE 2023 IL App (4th) 220414-UB This Order was filed under FILED NO. 4-22-0414 November 29, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County LARMARCUS BASSETT, ) No. 14CF1519 Defendant-Appellant. ) ) Honorable ) Brendan A. Maher, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Zenoff and Lannerd concurred in the judgment.

ORDER ¶1 Held: In the second stage of a postconviction proceeding, the merits of the petition may be considered only after the appointed postconviction counsel has fully complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).

¶2 Defendant, Larmarcus Bassett, appeals from a ruling in which the circuit court of

Winnebago County granted the State’s motion to dismiss his amended petition for postconviction

relief. Originally, we affirmed this ruling. See People v. Bassett, 2023 IL App (4th) 220414-U, ¶ 5.

Defendant then petitioned the supreme court for leave to appeal. On September 27, 2023, the

supreme court denied leave to appeal. In so doing, however, the supreme court issued to us the

following order:

“In the exercise of this Court’s supervisory authority, the Appellate Court,

Fourth District, is directed to vacate its judgment in People v. Bassett, case No.

4-22-0414 (03/30/23). The appellate court is directed to consider the effect of this Court’s opinion in People v. Addison, 2023 IL 127119, on the issue of whether

defendant received reasonable assistance of post-conviction counsel and determine

if a different result is warranted.”

Accordingly, we vacate our judgment in Bassett, 2023 IL App (4th) 220414-U. In the light of

Addison, we now reverse the circuit court’s judgment, and we remand this case for full compliance

with the requirement, in Illinois Supreme Court Rule 615 (eff. July 1, 2017), that postconviction

counsel make “amendments” to the pro se petition “that are necessary for an adequate presentation

of [defendant’s] contentions.”

¶3 I. BACKGROUND

¶4 Defendant is serving a term of 32 years’ imprisonment for armed robbery (720

ILCS 5/18-2(a)(2) (West 2014)). The evidence in the jury trial tended to show that on June 17,

2014, he and another man, Dezha Manning, robbed Deonterryo Thompson at gunpoint.

¶5 Thompson was the main witness in the jury trial. In his pro se petition for

postconviction relief, defendant accused his trial counsel of rendering ineffective assistance in the

trial by failing to present Manning and Malikah Muhammed (defendant’s sister) as alibi witnesses.

Thompson’s testimony, defendant claimed, could have been thrown into doubt by this alibi

evidence, especially considering that Thompson was biased again him. The pro se petition

explained that defendant and Thompson had gotten into “an earlier altercation where [Thompson]

had an unfounded grudge against defendant for the death of one of [Thompson’s] friend[s].”

¶6 Postconviction counsel filed an amended petition for postconviction relief. Ground

three of the amended petition accused trial counsel of rendering ineffective assistance by “fail[ing]

to meet with the Defendant sufficiently in order to adequately prepare a defense for trial.” The

amended petition continued:

-2- “30. Prior to the trial, the Defendant made his attorney aware that the victim,

Thompson, knew him well and that Thompson had a grudge against him. He also

told his attorney that he did not rob Thompson and that Thompson had fabricated

the story to get even with him.

31. Trial counsel did not put on any evidence, choosing to rely solely on

cross examination of Thompson as to some inconsistencies in his testimony and

prior police statements. Counsel essentially conceded the Defendant’s guilt as to

one or both charges.

32. Trial counsel’s failure to review evidence and strategy with the

Defendant arises [sic] to a level of ineffective assistance. *** [T]here appears to be

no strategy whatsoever.”

¶7 In an affidavit accompanying the amended petition, defendant averred:

“6. Prior to our meeting on [January 8, 2015], my attorney spent little time

with me to review the evidence or what our trial strategy would be.

7. I told my attorney that Deonterryo Thompson had a grudge against me

and fabricated the story about being robbed. My attorney led me to believe that I

could not be found guilty based on the testimony of Thompson. My attorney never

made it clear to me or sought my input into what our trial strategy would be. I

wanted to testify but my attorney convinced me otherwise.”

¶8 II. ANALYSIS

¶9 Postconviction counsel must give the defendant a “reasonable level of assistance.”

(Internal quotation marks omitted.) People v. Flores, 153 Ill. 2d 264, 276 (1992). To that end,

Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) provides as follows:

-3- “The record *** shall contain a showing, which may be made by the

certificate of petitioner’s [appointed] attorney, that 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, 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.”

The filing of a Rule 651(c) certificate raises a presumption that postconviction counsel provided

reasonable assistance. People v. Profit, 2012 IL App (1st) 101307, ¶ 19. The defendant has the

burden of rebutting that presumption by showing, from the record, that postconviction counsel

failed to perform a task enumerated in the certificate. People v. Leon, 2022 IL App (1st) 191367-

U, ¶ 51. We decide de novo whether the Rule 651(c) certificate is rebutted. See id.

¶ 10 In this case, postconviction counsel filed an amended certificate pursuant to Rule

651(c). One of his representations in the certificate was that he had “made any amendments to the

petition filed pro se that [were] necessary for an adequate presentation of petitioner’s contentions.”

¶ 11 According to defendant, the record belies that representation. He argues that

postconviction counsel failed to fulfill his duty of “investigat[ing] the defendant’s claims and

mak[ing] any amendments necessary for an adequate presentation of the defendant’s contentions.”

People v. Austin, 2022 IL App (4th) 200630-U, ¶ 36 (citing Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)).

Specifically, defendant complains that, in the amended petition, “[t]here was no discussion of what

counsel should have done differently (e.g., investigate Thompson’s bias and present evidence on

it).” Because the amended petition contained no mention or proof of the earlier altercation between

Thompson and defendant, the allegation, in the amended petition, that “Thompson had a grudge

against [defendant]” was a bare conclusion. See People v. Coleman, 183 Ill. 2d 366, 381 (1998)

-4- (“Nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to

require a hearing under the [Post-Conviction Hearing] Act [(725 ILCS 5/122-1 et seq. (West

1994))].”). Second, defendant criticizes the amended petition for failing to “specify what

‘evidence’ and ‘strategy’ trial counsel failed to review.”

¶ 12 It is inferable, from defendant’s affidavit, that the evidence that trial counsel

supposedly should have reviewed was the altercation between Thompson and defendant. The

strategy that trial counsel supposedly should have discussed with defendant was the possibility of

defendant’s taking the stand to testify to that altercation, thereby establishing that Thompson held

a grudge against him. So, the affidavit contains some discussion of the evidence and the strategy

to which the amended petition vaguely refers.

¶ 13 The affidavit, however, fails to explain the basis for defendant’s bare conclusion

that Thompson had a grudge against him. To survive a motion for dismissal, the amended petition

must make a substantial showing of a constitutional violation (see People v. Edwards, 197 Ill. 2d

239, 246 (2001)), and again, conclusory assertions fail to make such a showing (Coleman, 183 Ill.

2d at 381). Apparently, defendant’s affidavit could have easily provided support for his “grudge”

conclusion: the affidavit could have described the altercation that defendant mentioned in his

earlier, superseded pro se petition—including what Thompson specifically said to defendant in the

altercation.

¶ 14 The duty of making necessary amendments (see Ill. S. Ct. R. 651(c) (eff. July 1,

2017)) includes corroborating the amended petition with “the affidavits (if any) of those witnesses

who offer support for the claims the defendant raised in the petition” (if the record does not already

support the claims) (People v. Johnson, 154 Ill. 2d 227, 249 (1993)). It is true that,

-5- “[i]n the ordinary case, a trial court 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.” Id. at

241.

“Here, however, this presumption is flatly contradicted by the record,” specifically, the pro se

petition, in which defendant mentioned the altercation between Thompson and himself over the

death of Thompson’s friend. Id. If defendant could discuss the altercation in his pro se petition,

then apparently he could have done so in his affidavit attached to the amended petition. The lack

of such a discussion in defendant’s affidavit is evidence, on the face of the record, that defendant

received (in this respect) less than reasonable assistance.

¶ 15 Nevertheless, in our original decision in this appeal, we upheld the dismissal of the

amended petition because “under binding precedent, the strategic decision not to try to impeach

Thompson regarding his alleged grudge against defendant [was] immune to a claim of ineffective

assistance.” Bassett, 2023 IL App (4th) 220414-U, ¶ 45 (citing People v. West, 187 Ill. 2d 418,

432 (1999)). We acknowledged defendant’s citation of People v. Suarez, 224 Ill. 2d 37, 47 (2007),

in which the supreme court had held, “[R]emand 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.” We regarded Suarez as

distinguishable, however, because postconviction counsel in that case had filed no Rule 651(c)

certificate whereas, in the present case, postconviction counsel had done so. See Bassett, 2023 IL

App (4th) 220414-U, ¶ 46.

-6- ¶ 16 In Addison, though, the supreme court rejected the State’s argument “that Suarez is

limited to situations in which postconviction counsel did not file a certificate of compliance.”

Addison, 2023 IL 127119, ¶ 34. Addison made clear—without exception or qualification—that “it

is inappropriate to consider the merits of the claims in the petition when counsel has not complied

with Rule 651(c) by shaping the claims into the appropriate form.” Id. ¶ 42.

¶ 17 An unmeritorious claim can be in an appropriate form, or it can be in an

inappropriate form. If the record shows that a conclusory claim could be fleshed out with an

affidavit, and if postconviction counsel inexplicably failed to supply an affidavit that does so, the

claim is in an inappropriate form—regardless of whether the claim ultimately has any chance of

succeeding. Consideration of the merits comes only after full compliance with Rule 651(c). See

id. ¶ 41.

¶ 18 III. CONCLUSION

¶ 19 For the foregoing reasons, we reverse the circuit court’s judgment, and we remand

this case for full compliance with Rule 651(c), including the requirement that appointed

postconviction counsel make amendments to the pro se petition that are necessary for an adequate

presentation of defendant’s contentions.

¶ 20 Reversed and remanded with directions.

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