2017 IL App (4th) 150291 FILED NO. 4-15-0291 September 26, 2017 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of ) Macon County v. ) No. 09CF145 ) ZEBULIN BEASLEY, ) Honorable Defendant-Appellant. ) Timothy J. Steadman, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.
OPINION
¶1 Defendant, Zebulin Beasley, appeals from the second-stage dismissal of his
amended postconviction petition. On appeal, defendant argues (1) the trial court erroneously
concluded his amended postconviction petition failed to make a substantial showing of a
constitutional violation, (2) his postconviction counsel provided unreasonable assistance, and
(3) the circuit clerk improperly imposed fines against him. We affirm in part and vacate in part.
¶2 I. BACKGROUND
¶3 A. Information
¶4 In January 2009, the State charged defendant by information with three counts of
first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)), three counts of unlawful
possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), one count of retail theft (720 ILCS 5/16A-3(a) (West 2008)), one count of aggravated unlawful use of a weapon (720
ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), and one count of unlawful use of a weapon (720
ILCS 5/24-1(a)(7)(iii) (West 2008)). Each count of first degree murder included a sentencing
enhancement for the personal discharge of a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West
2008)).
¶5 B. Plea Hearing
¶6 In February 2010, the trial court held a plea hearing. Defendant and the State
indicated they reached a fully negotiated plea agreement. As part of that agreement, defendant
would plead guilty to the charge of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) in
exchange for the State moving to amend the information to remove the sentencing enhancement,
dismissing all other charges against defendant, and recommending a 30-year prison sentence.
¶7 The State moved to amend the information to remove the sentencing
enhancement, which the trial court granted. The court admonished defendant as to the offense
charged in the amended information and the possible penalties. Defendant indicated he
understood. The court also admonished defendant as to the rights he was giving up if he pleaded
guilty. Defendant indicated he understood. Defendant expressed his desire to plead guilty and
signed a jury waiver.
¶8 The State provided the following factual basis in support of the plea:
“The State’s evidence would show that on [January 24,
2009,] at around 12:54 p.m. officers from the Decatur Police
Department were dispatched to 1537 East Walnut Street in Decatur
on a shots fired call. Upon arrival, they located the victim,
-2- Nazareth Lee, in the kitchen area of this residence. The kitchen is
just off an enclosed porch. Mr. Lee was laying [sic] on his back
and had three apparent gunshot wounds. These turned out to be
wounds caused by two bullets. One went through his left arm
through and through and then entered his chest cavity striking a
lung and damaging his aorta. That bullet was recovered. The
second one went in the right arm and remained in the right arm, so
it was recovered. Mr. Lee was taken to Decatur Memorial
Hospital. He died there as a result of internal injuries sustained
from the gunshot to his chest. Witnesses at the scene of this
offense implicated [defendant] and Cordell Scott as being people
involved in the shooting. Cordell Scott was interviewed following
his Miranda rights by detectives Frank Hubbard and Charles
Hendricks of the Decatur Police Department. Mr. Scott indicated
he went to 1537 East Walnut with [defendant]. He, Scott, engaged
in an argument with a visitor at the residence named Jamario
Freeman on the front porch. Mr. Scott indicates [defendant] stood
at the front of the house as this verbal argument went on, and that
during the course of the argument, Jamario Freeman retrieved a
knife and displayed it, although he did not swing at it or charge
Mr. Scott with it. Cordell Scott indicates that at that point
[defendant] then fired a gun at Jamario Freeman, and that he and
-3- [defendant] ran away after the shots were fired. [Defendant] was
interviewed following his Miranda rights by Detectives Hubbard
and James Atkinson of the Decatur Police Department. He
indicated he had received a call that afternoon from a friend saying
Jamario Freeman had threatened him with a knife. Cordell Scott
decided to fight Jamario Freeman over that threat. The two of them
then went to 1537 East Walnut to confront Jamario Freeman.
[Defendant] brought along his .38 caliber revolver with him
because he said Jamario Freeman was known to have weapons.
Jamario Freeman and Cordell Scott engaged in a verbal argument.
Cordell Scott then threw a beer bottle at the house. Jamario
Freeman went inside, came back outside with a knife, displayed
the weapon. And then [defendant] indicates he shot the weapon he
carried at Jamario Freeman intending to kill Jamario Freeman. He
indicates that he ran after he fired shots. He indicates later he left
the area with his sister. He was taken to an alleyway in the 1000
block of East William Street and there hid a gun. The police went
to 1044 West William Street and located a firearm beneath the
backstairs of the residence there. [Defendant] was questioned
concerning this and identified that as the gun that he had used that
afternoon. Other bullets besides the one recovered from the
victim’s body were recovered from the door frame of the residence
-4- where this occurred. The bullets from the body and the bullets
from the scene along with this firearm were sent to the Illinois
State Police Crime Lab for analysis. Vickie Reels, a forensic
scientist there, conducted experiments and determined to a
reasonable degree of professional certainty that all of the bullets
had been fired by the weapon identified by [defendant]. ***
Jamario Freeman suffered no injuries as a result of this incident
and the victim, Nazareth Lee, had nothing to do with the
altercation or the previous altercation that led to the gunfire in this
case.”
Defendant did not object to the factual basis, and the trial court found it to be sufficient to
support the plea.
¶9 The trial court questioned defendant as to whether his trial counsel answered all
of his questions to his satisfaction, to which defendant indicated he had. The court accepted the
plea, finding it to be knowingly and voluntarily made, and sentenced defendant to 30 years’
imprisonment with credit for time served in presentence custody. The record shows defendant
was later assessed certain fines and fees, including (1) a $5 Crime Stoppers assessment, (2) a $5
youth diversion assessment, (3) a $25 violent crime victims assistance assessment, and (4) a $10
arrestee’s medical assessment.
¶ 10 After rendering its sentence, the trial court admonished defendant as to his
appellate rights and his need to file a motion to withdraw his guilty plea within 30 days to
preserve his right to appeal. Defendant indicated he understood the court’s admonishments.
-5- ¶ 11 C. Pro Se Postconviction Petition
¶ 12 In December 2011, defendant filed a pro se postconviction petition, alleging, in
part, he received ineffective assistance “[w]hen [t]rial counsel failed to file a [m]otion to
[w]ithdraw his [g]uilty [p]lea, where he repeated[ly] asked his [attorney] to file an [a]ppeal.” In
support of his claim, defendant alleged (1) he notified counsel of his desire to withdraw his
guilty plea, (2) he requested counsel to file “a [m]otion to withdraw his [p]lea and appeal,”
(3) counsel indicated he would visit him at the jail on a later date to discuss the reasons for
withdrawal, (4) counsel never visited him at the jail, and (5) counsel did not file a motion to
withdraw his guilty plea. Defendant attached to his petition a personal affidavit, which realleged
the above facts and added he felt like he was in a “no win” situation and accepted the plea based
upon counsel’s statement he did not think they would win the case if it went to trial.
¶ 13 That same month, the trial court advanced defendant’s petition to the second stage
of postconviction proceedings and appointed counsel to represent defendant.
¶ 14 D. Addendum to Defendant’s Postconviction Petition
¶ 15 In September 2014, defendant, through appointed counsel, filed an addendum to
his postconviction petition, which set forth additional independent claims of ineffective
assistance of trial counsel. In part, defendant alleged the following:
“1. Counsel failed to file a [m]otion to [s]uppress
[d]efendant’s ‘in[-]custody statements’, even though [d]efendant
informed his counsel *** that he was ‘under the influence of three-
mind altering substances[’] and was not ‘completely cognizant’ at
the time of his statements. ***
-6- 2. Counsel denied [d]efendant of his right to assert the
defense, ‘defense of another’, by incorrectly informing the
[d]efendant that ‘self-defense’ is only available if [d]efendant
himself ‘was in harm’s way’, and refused to further investigate or
to even discuss the matter. By doing so, [c]ounsel deprived the
[d]efendant of his right to present one of the defenses available to
the charges outstanding against the [d]efendant.
3. *** That in counsel’s effort to obtain [d]efendant’s
approval of the [plea] offer, counsel informed [d]efendant that, at
trial, he would not be entitled to an instruction of a lesser included
charge, at a time counsel knew that said possibility did exist. That
by counsel’s failure to fully inform [d]efendant of his choices and
the law, counsel deprived [d]efendant of his right to effective
assistance of counsel.”
Defendant attached to his addendum his April 8, 2009, notarized statement, which requested his
in-custody statements be suppressed because he was under the influence of marijuana, cocaine,
and alcohol when giving those statements. Defendant, through counsel, later filed a second
personal affidavit in support of these additional claims.
¶ 16 E. State’s Amended Motion To Dismiss Defendant’s Amended Postconviction Petition
¶ 17 In October 2014, the State filed a motion to dismiss defendant’s amended
postconviction petition, which it later amended. The State asserted defendant failed to make a
substantial showing of a constitutional violation. In particular, the State argued, even if the trial
-7- court were to assume defendant asked his trial counsel to file a motion to withdraw his guilty
plea, defendant failed to show he suffered prejudice by counsel’s failure to do so.
¶ 18 F. Hearing on the State’s Amended Motion To Dismiss Defendant’s Amended Postconviction Petition
¶ 19 In March 2015, the trial court held a hearing on the State’s amended motion to
dismiss defendant’s amended postconviction petition. Defendant’s postconviction counsel filed a
certificate in compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Following
arguments, the court dismissed defendant’s petition, finding it failed to make a substantial
showing of a constitutional violation.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues (1) the trial court erroneously concluded his
amended postconviction petition failed to make a substantial showing of a constitutional
violation, (2) his postconviction counsel provided unreasonable assistance, and (3) the circuit
clerk improperly imposed fines against him.
¶ 23 A. Trial Court’s Dismissal
¶ 24 Defendant asserts the trial court erroneously concluded his amended
postconviction petition failed to make a substantial showing of a constitutional violation.
Defendant contends his petition makes a substantial showing his trial counsel provided
ineffective assistance by (1) failing to perfect his right to appeal by filing a motion to withdraw
his guilty plea and (2) affirmatively misadvising him on a plausible defense and an available
lesser offense of second degree murder.
-8- ¶ 25 At the second stage of postconviction proceedings, the trial court determines
whether a defendant’s postconviction petition and any accompanying documentation make a
“ ‘substantial showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688,
¶ 33, 987 N.E.2d 767. In making this determination, the court accepts all well-pleaded facts as
true, unless they are affirmatively refuted by the record. Id. ¶ 35. The defendant bears the burden
of making a substantial showing of a constitutional violation. Id. We review a trial court’s
second-stage dismissal de novo. People v. Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999, 1008
(2006).
¶ 26 “[T]he sixth amendment [(U.S. Const., amend. VI)] guarantees a defendant the
right to effective assistance of counsel at all critical stages of the criminal proceedings, which
include the entry of a guilty plea.” People v. Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439.
Claims of ineffective assistance of counsel are governed by the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504, 526-27,
473 N.E.2d 1246, 1255-56 (1984) (adopting Strickland). To succeed on a claim of ineffective
assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective
standard of reasonableness and (2) the deficient performance resulted in prejudice. Strickland,
466 U.S. at 687; Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439. To satisfy the deficiency prong
of Strickland, counsel’s performance must be so deficient that counsel was “not functioning as
the ‘counsel’ guaranteed by the sixth amendment.” People v. Easley, 192 Ill. 2d 307, 317, 736
N.E.2d 975, 985 (2000). To satisfy the prejudice prong of Strickland, the defendant must
demonstrate, but for counsel’s deficient performance, there is a reasonable probability the result
of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694; People v.
-9- Houston, 226 Ill. 2d 135, 144, 874 N.E.2d 23, 29 (2007). Failure to satisfy either prong defeats
the claim. Strickland, 466 U.S. at 697; People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d
1063, 1079 (1998). This court may dispose of a claim on prejudice grounds alone, without
deciding whether counsel’s performance was deficient. People v. Munson, 171 Ill. 2d 158, 184,
662 N.E.2d 1265, 1276 (1996).
¶ 27 Defendant asserts his amended postconviction petition makes a substantial
showing his trial counsel provided ineffective assistance by failing to perfect his right to appeal
by filing a motion to withdraw his guilty plea. Specifically, defendant asserts (1) counsel
provided constitutionally deficient performance by failing to file a motion to withdraw his guilty
plea after he requested counsel do so and (2) his addendum to his postconviction petition alleged
grounds that could have been presented in a motion to withdraw his guilty plea.
¶ 28 Under the second prong of Strickland, defendant cites our supreme court’s
decision in People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001), for the proposition a
showing of prejudice at the second stage of postconviction proceedings requires him only to
allege grounds that could have been presented in the motion to withdraw his guilty plea. In
Edwards, our supreme court held, where a defendant alleges counsel failed to perfect his appeal
by first filing a motion to withdraw the guilty plea, prejudice is presumed at the first stage of
postconviction proceedings. Id. at 257, 757 N.E.2d at 452. It reasoned:
“Whether *** defense counsel’s decision not to file a motion to
withdraw the guilty plea constitutes ineffective assistance of
counsel requires the appointment of an attorney who will be able to
consult with defendant regarding his claim and explore in more
- 10 - detail the factual and legal ramifications of defendant’s claim.” Id.,
757 N.E.2d at 452-53.
The court explicitly limited its holding to whether the trial court erred in dismissing the
defendant’s postconviction petition at the first stage of the postconviction proceedings. Id., 757
N.E.2d at 453. In doing so, the court explained:
“To merit an evidentiary hearing on his claim that he told his trial
counsel to file a motion to withdraw his guilty plea and that
counsel was constitutionally ineffective for failing to do so,
defendant will have to make a substantial showing to that effect.
See Coleman, 183 Ill. 2d at 381, 701 N.E.2d [at 1072]. Such a
showing will necessarily entail some explanation of the grounds
that could have been presented in the motion to withdraw the plea.
Since defendant will be at the second stage of the post-conviction
proceedings and will be represented by an attorney, rather than
proceeding pro se, this will not present an unreasonable burden.”
Id. at 257-58, 757 N.E.2d at 453.
¶ 29 Conversely, the State cites the Second District’s decision in People v. Gomez, 409
Ill. App. 3d 335, 947 N.E.2d 343 (2011), for the proposition a showing of prejudice at the second
stage of postconviction proceedings requires a defendant “must explain his grounds for moving
to withdraw his plea and establish a reasonable probability that the motion would have been
granted.” In Gomez, the defendant argued prejudice must be presumed where his trial counsel
- 11 - failed to file a motion to withdraw his guilty plea after being requested to do so. Id. at 339, 947
N.E.2d at 347. The Second District rejected defendant’s argument, finding, in part:
“Because defendant’s petition survived summary dismissal, he had
to establish at stage two, pursuant to Edwards, on what justifiable
basis he could have moved to withdraw his guilty plea and that
there was a reasonable probability that the motion would have been
granted allowing defendant to withdraw his plea of guilty.” Id. at
340, 947 N.E.2d at 348.
¶ 30 After considering the parties’ arguments, we find the State’s position to be
persuasive. As our courts have long held, to avoid dismissal at the second stage of postconviction
proceedings, a postconviction petition must make a “substantial showing” of a constitutional
violation. Coleman, 183 Ill. 2d at 381, 701 N.E.2d at 1072 (cases cited therein). In fact, in
Edwards, 197 Ill. 2d at 257-58, 757 N.E.2d at 453, the supreme court, citing Coleman, made it
clear the defendant was entitled to an evidentiary hearing only if he made a “substantial
showing” he told counsel to file a motion to withdraw the guilty plea and counsel was
constitutionally ineffective for failing to do so. Were we to accept defendant’s position, a
defendant would be entitled to an evidentiary hearing as long as he or she alleged some ground
that could have been raised in a motion to withdraw the guilty plea, regardless of whether that
ground is wholly arbitrary or fanciful. Defendant’s position runs afoul of the standard by which
our courts have consistently evaluated petitions at the second stage of postconviction
proceedings. We conclude, to establish prejudice at the second stage of postconviction
proceedings, a postconviction petition must not only allege grounds that could have been
- 12 - presented in a motion to withdraw the guilty plea but also show a reasonable probability the
motion would be granted on those grounds. See Gomez, 409 Ill. App. 3d at 340, 947 N.E.2d at
348. Such a requirement does not impose an unreasonable burden on a defendant who will be
represented by counsel at this stage of the postconviction proceedings. See Edwards, 197 Ill. 2d
at 258, 757 N.E.2d at 453.
¶ 31 Even under this standard, defendant suggests he has established prejudice because
his addendum to his postconviction petition alleged grounds by which it is reasonably probable
he would have been allowed to withdraw his guilty plea. Specifically, defendant suggests he
would have been entitled to withdraw his guilty plea because his trial counsel provided
ineffective assistance when he affirmatively misadvised him as to a plausible defense and the
availability of the lesser-included offense of second degree murder.
¶ 32 A defendant has no absolute right to withdraw a plea of guilty. People v.
Delvillar, 235 Ill. 2d 507, 520, 922 N.E. 2d 330, 338 (2009). “Rather, he must show ‘a manifest
injustice under the facts involved’ to obtain leave to withdraw his plea.” People v. Jamison, 197
Ill. 2d 135, 163, 756 N.E.2d 788, 802 (2001) (quoting People v. Pullen, 192 Ill. 2d 36, 39, 733
N.E.2d 1235, 1237 (2000)). “In considering such a motion, the court shall evaluate whether the
guilty plea was entered through a misapprehension of the facts or of the law, or if there is doubt
of the guilt of the accused and the ends of justice would better be served by submitting the case
to a trial.” Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237. “A defendant may enter a guilty plea
because of some erroneous advice by counsel, but that fact alone does not destroy the voluntary
nature of the plea ***.” People v. Cunningham, 286 Ill. App. 3d 346, 349, 676 N.E.2d 998, 1001
(1997). Rather, the defendant must establish he was provided ineffective assistance to
- 13 - demonstrate the plea was involuntary. People v. Edmonson, 408 Ill. App. 3d 880, 884, 946
N.E.2d 997, 1001 (2011); People v. Clark, 386 Ill. App. 3d 673, 676, 899 N.E.2d 342, 345
(2008). Again, under Strickland, a defendant must show (1) counsel’s performance was
objectively unreasonable and (2) the deficient performance resulted in prejudice. Strickland, 466
U.S. at 687; Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439.
¶ 33 Initially, under the second prong of Strickland, both defendant and the State
presented argument under our supreme court’s decisions in People v. Hall, 217 Ill. 2d 324, 841
N.E.2d 913 (2005), and Hughes. Following the briefing in this case, defendant filed a motion to
cite additional authority, Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958 (2017), which this
court granted. In his motion, defendant asserted the Supreme Court’s decision in Lee is directly
at odds with our supreme court’s decisions in Hall and Hughes. We conclude we need not
address defendant’s argument as his claims are fatally flawed in another respect.
¶ 34 Defendant alleged his trial counsel’s performance “deprived [him] of his right to
present one of the defenses available to the charges outstanding against [him]” and “[t]hat in
counsel’s effort to obtain [his] approval of the [plea] offer, counsel informed [him] that, at trial,
he would not be entitled to an instruction of a lesser included charge, at a time counsel knew that
said possibility did exist.” Defendant did not allege he would have not pleaded guilty but would
instead have gone to trial had he been correctly informed (1) self-defense included defense of
another and (2) a lesser-included offense instruction was available at trial. He further did not
allege he would have chosen to submit the defense-of-another or lesser-included offense jury
instructions. Defendant, in effect, raised only the violation of his right to choose. Defendant
suggests he sufficiently alleged prejudice based on his statement in his first affidavit indicating
- 14 - he pleaded guilty because he felt like he was in a “no win” situation. His statement, however, is
both vague and conclusory. We find defendant’s amended postconviction petition failed to
establish the necessary showing of prejudice. See Hill v. Lockhart, 474 U.S. 52, 60 (1985)
(finding the petitioner failed to establish prejudice where he did not allege he would have
pleaded not guilty and insisted on going to trial had counsel correctly informed him of his parole
eligibility date); People v. Rivera, 2014 IL App (2d) 120884, ¶ 13, 5 N.E.3d 745 (finding the
defendant failed to establish prejudice where he raised only the violation of his right to choose
whether to submit a jury instruction); People v. Barkes, 399 Ill. App. 3d 980, 990-91, 928 N.E.2d
102, 113 (2010) (finding an evidentiary hearing was not warranted on those claims that were
vague or conclusory and failed to show the defendant’s specific wishes were frustrated);
Coleman, 183 Ill. 2d at 381, 701 N.E.2d at 1072 (noting nonspecific assertions, which merely
amount to conclusions, are not sufficient to require an evidentiary hearing).
¶ 35 Because defendant’s amended postconviction petition fails to show he was
prejudiced by the advice his trial counsel rendered, his independent claims of ineffective
assistance must fail. Because defendant has failed to allege grounds by which it is reasonably
probable he would have been allowed to withdraw his guilty plea, his claim of ineffective
assistance for trial counsel’s failure to file a motion to withdraw his guilty plea must also fail.
We find the trial court properly dismissed defendant’s amended postconviction petition as it
failed to make a substantial showing of a constitutional violation.
¶ 36 B. Postconviction Counsel’s Performance
- 15 - ¶ 37 Defendant contends his postconviction counsel provided unreasonable assistance
by including a claim of ineffective assistance for trial counsel’s failure to file a motion to
suppress his in-custody statements without supporting it with proper evidentiary material.
¶ 38 At the second stage of postconviction proceedings, a defendant is entitled to a
“reasonable” level of assistance. People v. Cotto, 2016 IL 119006, ¶ 42, 51 N.E.3d 802. To
ensure counsel provides a reasonable level of assistance, Illinois Supreme Court Rule 651(c)
imposes specific duties on postconviction counsel. People v. Suarez, 224 Ill. 2d 37, 42, 862
N.E.2d 977, 979 (2007). Rule 651(c) requires postconviction counsel to (1) consult with the
defendant to ascertain his contentions of the deprivation of constitutional rights, (2) examine the
record of the trial court proceedings, and (3) make any amendments to the defendant’s pro se
petition necessary to adequately present the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. Feb. 6,
2013).
¶ 39 “The filing of a facially valid Rule 651(c) certificate creates a rebuttable
presumption that counsel acted reasonably and complied with the rule.” People v. Wallace, 2016
IL App (1st) 142758, ¶ 25, 67 N.E.3d 976. Our supreme court has also stated, “[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.” People v. Johnson, 154 Ill. 2d 227, 241, 609 N.E.2d 304, 311 (1993).
¶ 40 Defendant does not dispute his postconviction counsel filed a certificate in
compliance with Illinois Supreme Court Rule 651(c), thereby giving rise to the presumption
counsel complied with the rule and provided reasonable assistance. Defendant asserts, however,
- 16 - that presumption has been rebutted where his counsel attached only his notarized statement to his
petition, which made a bare allegation he was under the influence of marijuana, cocaine, and
alcohol, without any “showing he no longer had the capacity to waive his rights.” Defendant fails
to consider or address the fact his counsel also provided the trial court with his second personal
affidavit in support of his claim. Defendant further fails to allege what additional supporting
documentation his postconviction counsel could have attached to his petition to show he no
longer had the capacity to waive his rights. See People v. Malone, 2017 IL App (3d) 140165,
¶ 10, 74 N.E.3d 24 (“Absent a showing of available material for supporting affidavits, a failure to
present affidavits obviously cannot be considered a neglect by the attorney.” (Internal quotations
omitted.)). Given the arguments presented, we find defendant has failed to rebut the presumption
his postconviction counsel provided reasonable assistance.
¶ 41 C. Clerk-Imposed Fines
¶ 42 Defendant argues the circuit clerk improperly imposed fines against him.
Specifically, defendant complains of the following assessments: (1) a $5 Crime Stoppers
assessment, (2) a $5 youth diversion assessment, (3) a $25 violent crime victims assistance
assessment, and (4) a $10 arrestee’s medical assessment. The State concedes these assessments
should be vacated as they are fines improperly imposed by the circuit clerk.
¶ 43 The imposition of a fine is exclusively a judicial act. People v. Smith, 2014 IL
App (4th) 121118, ¶ 18, 18 N.E.3d 912. A circuit clerk has no authority to impose fines, and any
fines imposed by the circuit clerk are void from their inception. See People v. Warren, 2016 IL
App (4th) 120721-B, ¶ 89, 55 N.E.3d 117. Where a circuit clerk imposed fines, a reviewing court
must only vacate them, because a remand for the trial court to correct such an error results in an
- 17 - impermissible increase in the defendant’s sentence on remand, which goes against our supreme
court’s decision in People v. Castleberry, 2015 IL 116916, ¶ 25, 43 N.E.3d 932. People v. Daily,
2016 IL App (4th) 150588, ¶ 30, 74 N.E.3d 15.
¶ 44 The record is devoid of an order, written or oral, by the trial court judge
authorizing the imposition of the assessments defendant challenges. Instead, the circuit clerk
imposed them. The $5 Crime Stoppers assessment is a fine. 730 ILCS 5/5-6-3(b)(13) (West
2010); People v. Hible, 2016 IL App (4th) 131096, ¶ 18, 53 N.E.3d 319. The $5 youth diversion
assessment is a fine. 55 ILCS 5/5-1101(e) (West 2010); People v. Graves, 235 Ill. 2d 244, 251,
919 N.E.2d 906, 910 (2009). The $25 violent crime victims assistance assessment is a fine. 725
ILCS 240/10(c)(1) (West 2010); Smith, 2014 IL App (4th) 121118, ¶ 63, 18 N.E.3d 912. The $10
arrestee’s medical assessment is a fine. 730 ILCS 125/17 (West 2010); Warren, 2016 IL App
(4th) 120721-B, ¶ 119, 55 N.E.3d 117. Because the circuit clerk improperly imposed these fines,
we vacate them.
¶ 45 III. CONCLUSION
¶ 46 We (1) affirm the trial court’s dismissal of defendant’s amended postconviction
petition; (2) vacate the $5 Crime Stoppers assessment, $5 youth diversion assessment, $25
violent crime victims assistance assessment, and $10 arrestee’s medical assessment; and
(3) award the State its $75 statutory assessment as costs of this appeal (55 ILCS 5/4-2002(a)
(West 2016)).
¶ 47 Affirmed in part and vacated in part.
- 18 -