NOTICE This order was filed under Supreme FILED Court Rule 23 and may not be cited 2020 IL App (4th) 170618-U January 15, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed th NO. 4-17-0618 4 District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County BRIAN V. BOWALD, ) No. 13CF9 Defendant-Appellant. ) ) Honorable ) Charles M. Feeney III, ) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.
ORDER
¶ 1 Held: The appellate court held that defendant was denied reasonable assistance of post- conviction counsel because counsel failed to amend defendant’s petition. Based on the framing of the issues by the parties and in the interest of judicial economy, the appellate court remanded the case for third stage proceedings.
¶2 In May 2013, a jury found defendant, Brian V. Bowald, guilty of four counts of
predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008); 720 ILCS
5/11-1.40(a)(1) (West 2012)) and five counts of aggravated criminal sexual abuse (720 ILCS
5/12-16(c)(1)(i) (West 2008); 720 ILCS 5/11-1.60(c)(1)(i) (West 2012)). In June 2013, the trial
court sentenced defendant to a total of 66 years in prison. In March 2015, this court affirmed de-
fendant’s conviction and sentence on direct appeal. People v. Bowald, 2015 IL App (4th)
130587-U, ¶ 1.
¶3 In August 2016, defendant pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). De-
fendant alleged five grounds for relief, including a claim that his trial counsel was ineffective for
failing to remove a potentially biased juror. Later that month, the trial court advanced the petition
to the second stage, appointing counsel to represent defendant.
¶4 In March 2017, defendant filed an amended postconviction petition, which
“adopted in its entirety” defendant’s pro se petition and added two new claims. In May 2017, the
State filed a motion to dismiss.
¶5 In June 2017, the trial court conducted a hearing on the State’s motion. The court
dismissed several of defendant’s claims, including his ineffective assistance claim regarding the
failure to remove a biased juror. The court dismissed the remaining claims after a third stage evi-
dentiary hearing.
¶6 Defendant appeals, arguing only that he was denied reasonable assistance of post-
conviction counsel in violation of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) because
(1) the pro se petition did not make a substantial showing of a constitutional violation and
(2) postconviction counsel failed to amend the pro se petition to survive second-stage review. In
response, the State argues only that defendant’s petition stated a complete claim that did not re-
quire amendment and does not address the merits of the underlying claim. Under the unique cir-
cumstances of this case and based on the framing of the issues by the parties, we conclude coun-
sel failed to comply with Rule 651, but in the interest of judicial economy, we remand for third-
stage proceedings.
¶7 I. BACKGROUND
¶8 A. The Underlying Conviction and Direct Appeal
¶9 In February 2013, a grand jury returned an indictment that charged defendant with
-2- four counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West
2008); 720 ILCS 5/11-1.40(a)(1) (West 2012)) and five counts of aggravated criminal sexual
abuse. 720 ILCS 5/12-16(c)(1)(i) (West 2008); 720 ILCS 5/11-1.60(c)(1)(i) (West 2012). Ac-
cording to the indictment, defendant repeatedly had sexual contact with B.B. (born December
2002) during the period of January 1, 2010, to January 14, 2013, when she was as young as 7 and
as old as 10.
¶ 10 Specifically, the four counts of predatory criminal sexual assault of a child alleged
that defendant placed his (1) penis in her vagina, (2) mouth on her vagina, (3) finger in her
vagina, and (4) finger in her anus. The five counts of aggravated criminal sexual abuse alleged
that he (1) placed his penis on her buttocks, (2) placed her hands on his penis, (3) placed his
mouth on her breasts, (4) placed his hands on her breasts, and (5) ejaculated onto her unclothed
body.
¶ 11 In May 2013, a jury found defendant guilty of all counts. In June 2013, the trial
court conducted a sentencing hearing. The court sentenced defendant to 15 years in prison on
each of the four counts of predatory criminal sexual assault, with the terms to be served consecu-
tively. The court sentenced defendant to six years in prison on three of the counts of aggravated
criminal sexual abuse, and four years on the remaining two counts, all to be served concurrently
with each other but consecutively to the predatory criminal sexual assault counts. In total, the
court sentenced defendant to 66 years in prison.
¶ 12 On direct appeal, defendant argued the State failed to prove him guilty beyond a
reasonable doubt on count I and that his sentence was excessive. This court affirmed the convic-
tion and sentence. Bowald, 2015 IL App (4th) 130587-U, ¶ 1.
¶ 13 B. The Postconviction Petition
-3- ¶ 14 In August 2016, defendant pro se filed a petition for postconviction relief, assert-
ing five claims. Relevant to this appeal, defendant’s fifth claim alleged that his trial counsel pro-
vided ineffective assistance by failing to act when defendant and his wife informed trial counsel
that one of the jurors was potentially biased. Defendant supported this claim with his own affida-
vit.
¶ 15 In his affidavit, defendant averred that at the end of jury selection, a woman
named “Jenell Keiswetter, received a broadcast message from Juror Kristen Denham-Ward.”
Keiswetter “forwarded the message” to defendant’s wife, who received the message “on her cell-
phone while sitting in the courtroom.” Defendant stated he reviewed the message with his wife
“after leaving the courtroom.” Defendant then stated in his affidavit as follows:
“the message was from Ms. Ward to Ms. Keiswetter [and] read that she had been
selected to be a juror on the Bowald child sexual abuse case and had many re-
sponses attached thereto. Such responses were, i.e. ‘Hang them all’ and ‘Hang
him.’
My wife and I showed the message to my trial attorney *** as he was go-
ing to lunch after the jury selection. However, neither [trial counsel] nor Ms.
Ward brought this third party communication to the court’s attention.”
¶ 16 In his petition, which was verified, defendant argued trial counsel was ineffective
for failing to bring the prejudicial third-party communication to the trial court’s attention, which
denied him his right to a fair and impartial jury. The petition described the affidavit as alleging
that Ward “had posted that she had been called to court as a prospected [sic] juror for jury duty,
and she had some responses that stated: ‘Hang him’ and ‘Hang them all.’ ” Defendant noted that
the trial court had instructed the jury, after they were empanelled, as follows:
-4- “During the course of this trial, do not discuss this case with anyone, not even
your family or your friends, or not even amongst yourselves, until at the end of
the trial when you’ve retired to the jury room to deliberate on your verdict.
Should anyone speak to you about the case, or try to influence you in any manner
before the final disposition of this case, you should report that to me immedi-
ately.”
¶ 17 Defendant argued Ward “lacked appreciation of her responsibility as a juror to
avoid third party communication when she posted her message about being selected as a juror
and then refused to inform the court of the responses ***.” Defendant further claimed that “Ward
posted her message as if she was requesting input as to what her verdict should be,” and “this
conduct can only imply she didn’t follow the court’s instructions to not discuss the case during
the course of the trial.” Defendant contended that the responses Ward received were similar to
the statements in People v. Hobley, 182 Ill. 2d 404, 696 N.E.2d 313 (1998), in which “Juror
Sanchez, in her affidavit ‘described that the men “yelled out, Hang the motherfucker.” ’ ”
¶ 18 Later in August 2016, the trial court entered a written order appointing postcon-
viction counsel for defendant. In March 2017, postconviction counsel filed an amended postcon-
viction petition. The amended petition “adopted in its entirety” the previous pro se petition. The
amended petition did not make any alterations to the original petition or add any materials in
support of those claims. Instead, the amended petition added two new claims. Postconviction
counsel also filed a Rule 651(c) certificate. See Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
¶ 19 C. The Motion To Dismiss
¶ 20 In May 2017, the State filed a motion to dismiss the amended petition in its en-
tirety. Concerning defendant’s fifth claim, the State argued that the claim was “based upon
-5- speculation, and a substantial showing has not been made to establish prejudice to the defendant
to show ineffective assistance.” Specifically, the State noted that defendant’s affidavit was the
only documentation to substantiate the claim, and “[t]here [was] no screen shot of the message,
there [was] no affidavit from the juror, there [was] not [sic] affidavit from any one [sic] else re-
garding this claim.” The State also distinguished Hobley, noting that “[there,] jurors provided af-
fidavits to proceed to an evidentiary hearing,” while in this case defendant only had his own
speculative claims.
¶ 21 In June 2017, postconviction counsel filed a response, arguing as follows:
“The State asks the Court to dismiss this claim stating it is based upon
speculation and a substantial showing has not been made. The State then goes
onto [sic] attack the affidavit attached as not substantiating the claim because no
screen shot is attached, nor an affidavit from the juror, or an affidavit from anyone
else to corroborate the allegations made by the Defendant. It is clearly alleged that
a juror empanelled for the trial was sent messages urging them to condemn the
Defendant. It is also clearly alleged that the trial attorney was informed of these
messages to the juror and that the attorney did not further investigate or raise any
objections to the court about this juror and the statements encouraging condemna-
tion of the defendant to the court. It is also clear that at this stage all pleaded facts
as [sic] true and bars the court from further fact finding. People v. Coleman, 183
Ill. 2d 366, 380-81 (1998). Thus, the State’s assertions that this is based upon
speculation or is ‘highly suspect’ are not lawful assertions to dismiss this claim
*** and the Defendant requires the Motion to Dismiss as to this claim be denied
as well.”
-6- ¶ 22 G. The Trial Court’s Rulings
¶ 23 Later in June 2017, the trial court conducted a hearing on the State’s motion to
dismiss. The State argued that defendant’s affidavit was not sufficient to demonstrate a substan-
tial showing of a constitutional violation. The State asserted that affidavits from jurors were re-
quired before defendant was entitled to an evidentiary hearing. The State relied upon People v.
Hobley in support of its claim.
¶ 24 Regarding claim five, postconviction counsel’s argument, in its entirety, was as
follows: “I know the State doesn’t think that the affidavit of the defendant is sufficient, but it is.
Again, stating all claims are true we believe that we made a substantial showing in that claim as
well.”
¶ 25 The trial court began by emphasizing that at the second stage of postconviction
proceedings, the burden was on defendant, not the State, “to make a substantial showing through
the petition and the accompanying documentation of a substantial showing of a constitutional vi-
olation.” Concerning claim five, the court stated as follows:
“Then we have claim 5 that deals with this juror. It’s not 100 percent clear
to me—I have looked—on the one hand the defendant’s assertion seems to be that
this particular juror posted this after the juror was assigned to the case. Let me
find it here. In paragraph 51 under that claim it says, ‘The particular juror had
posted a message that she had been called to court as a prospective juror for jury
duty, and she had some responses that stated hang them and hang them all.’ So,
first of all, there is a huge difference between some banter that goes on for a per-
son who is called generally to report as part of the overall pool of people to be a
juror, and—which is what paragraph 51 certainly seems to indicate—and
-7- someone on a particular trial that has been selected and receives that level of com-
munication. But again, it’s on—it’s on the defense to make a substantial showing.
People do everything on Facebook anymore. I mean, they communicate, you
know, all the time on Facebook. It is—for someone to say yeah, I am on jury
duty, is that now—is the defendant in that case entitled to a mistrial because the
juror disclosed they were on jury duty? I mean, isn’t that essentially what hap-
pened? And then we have no affidavit, we have no evidence of any nature, no
supporting documentation whatsoever, that Juror Ward read these comments, that
Juror Ward gave any consideration whatsoever to these comments. She—for all
we know she laughed them off. For all we know she didn’t even read them. But
we have nothing to substantiate that this had any impact on the defendant or the
outcome of the case.
And further, this is all raised within the confines of an ineffective assis-
tance of counsel claim. It is entirely within the province of [trial counsel] to have
chosen to ignore it as to not ruffle the feathers of the jurors by picking on a partic-
ular juror, or something. I don’t know that. But again, we have no supporting doc-
umentation of what occurred or why it occurred. We have his affidavit. We have
his affidavit that he had told his counsel, and we have his verified petition that
seems to indicate a different perspective on when this occurred.
So just saying that someone said to a juror [‘]hang them all[’], okay, that
tells me right there that’s not aimed at Mr. Bowald. That’s a ridiculous comment
aimed at all prospective defendants that maybe this person would hear. And, of
course, in Woodford County they could just as easily have a civil case as a
-8- criminal case when they report to jury service. So we don’t have a copy of the
post. ***
But either way, the juror was told—was properly instructed, was asked if
she could be—because I could say this because this is how I do every single trial.
They’re asked about their willingness to hold the State to their burden, you know.
I go through all the required standards with the jury. And she said she could be
fair and impartial. So I don’t think there is enough there. I don’t think you’ve
made a substantial showing of anything as to Juror Ward. That’s dismissed.”
¶ 26 Ultimately, the trial court determined that an evidentiary hearing was required on
only one of defendant’s claims and dismissed the rest.
¶ 27 In August 2017, following an evidentiary hearing, the trial court denied defend-
ant’s remaining claim.
¶ 28 This appeal followed.
¶ 29 II. ANALYSIS
¶ 30 Defendant appeals, arguing only that he was denied reasonable assistance of post-
conviction counsel in violation of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) because
(1) the pro se petition did not make a substantial showing of a constitutional violation and
(2) postconviction counsel failed to amend the pro se petition to survive second-stage review. In
response, the State argues only that defendant’s petition stated a complete claim that did not re-
quire amendment and does not address the merits of the underlying claim. Under the unique cir-
cumstances of this case and based on the framing of the issues by the parties, we conclude coun-
sel failed to comply with Rule 651, but in the interest of judicial economy, we remand for third-
-9- ¶ 31 A. The Applicable Law
¶ 32 1. Proceedings Pursuant to the Post-Conviction Hearing Act
¶ 33 The Post-Conviction Hearing Act (Act) provides a criminal defendant the means
to redress substantial violations of his constitutional rights that occurred in his original trial or
sentencing. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS
5/122-1 (West 2014). The Act contains a three-stage procedure for relief. People v. Allen, 2015
IL 113135, ¶ 21, 32 N.E.3d 615; 725 ILCS 5/122-2.1 (West 2014). Within the first 90 days after
the petition is filed and docketed, the trial court shall dismiss a petition summarily if the court
determines it is “frivolous or is patently without merit.” Id. § 122-2.1 (a)(2). If the court does not
dismiss the petition, then it proceeds to the second stage at which the court may appoint counsel
for an indigent defendant. People v. Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999, 1007
(2006).
¶ 34 At the second stage, the trial court appoints counsel who must then investigate de-
fendant’s claims and make any amendments necessary for an adequate presentation of defend-
ant’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). The State may file a motion to dismiss
the petition, and the petition advances to a third-stage evidentiary hearing only if defendant
makes a “substantial showing of a constitutional violation.” (Internal quotation marks omitted.)
People v. Johnson, 2018 IL App (5th) 140486, ¶ 22, 99 N.E.3d 1.
¶ 35 2. The Substantial Showing Requirement
¶ 36 The Illinois Supreme Court has described proceedings at the second stage as fol-
lows:
“The second stage of postconviction review tests the legal sufficiency of the peti-
tion. Unless the petitioner’s allegations are affirmatively refuted by the record,
- 10 - they are taken as true, and the question is whether those allegations establish or
‘show’ a constitutional violation. In other words, the ‘substantial showing’ of a
constitutional violation that must be made at the second stage [citation] is a meas-
ure of the legal sufficiency of the petition’s well-pled allegations of a constitu-
tional violation, which if proven at an evidentiary hearing, would entitle petitioner
to relief.” (Emphasis in original.) People v. Domagala, 2013 IL 113688, ¶ 35, 987
N.E.2d 767.
¶ 37 To make a substantial showing, “the allegations in the petition must be supported
by the record in the case or by its accompanying affidavits.” People v. Coleman, 183 Ill. 2d 366,
381, 701 N.E.2d 1063, 1072 (1998). “The affidavits that accompany a postconviction petition
must identify with reasonable certainty the sources, character, and availability of alleged evi-
dence supporting the petitioner’s allegations.” People v. Waldrop, 353 Ill. App. 3d 244, 249, 818
N.E.2d 888, 893 (2004). A petition “that is not supported by affidavits or other supporting docu-
ments is generally dismissed without an evidentiary hearing unless the petitioner’s allegations
stand uncontradicted and are clearly supported by the record.” Id.
¶ 38 3. Ineffective Assistance of Postconviction Counsel
¶ 39 The right to counsel in postconviction proceedings is statutory rather than consti-
tutional, and, therefore, a defendant is entitled only to the level of assistance guaranteed by the
Act. People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511, 518-19 (2004). The Illinois Supreme
Court has determined that the Act and Rule 651 require appointed counsel to provide only rea-
sonable assistance, a lower standard than that which the constitution requires at trial. People v.
Kuehner, 2015 IL 117695, ¶ 15, 32 N.E.3d 655. Rule 651(c) outlines certain duties that postcon-
viction counsel must perform in order to provide reasonable assistance. Id. Counsel must
- 11 - (1) consult with the defendant to determine the issues defendant wants to raise, (2) examine the
record of the proceedings in the trial court, and (3) make any amendment to the petition neces-
sary to adequately preserve defendant’s contentions. Id.
¶ 40 “If the petitioner’s claims are based on evidence outside the record, counsel is re-
quired to attach affidavits or other evidence to adequately present those claims.” People v. Burns,
2019 IL App (4th) 170018, ¶ 20, 126 N.E.3d 795. “In the ordinary case, a trial court ruling upon
a motion to dismiss a post-conviction petition which is not supported by affidavits or other docu-
ments 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).
¶ 41 The defendant bears the burden of demonstrating that his attorney failed to com-
ply with Rule 651(c). People v. Jones, 2011 IL App (1st) 092529, ¶ 23, 955 N.E.2d 1200. The
filing of a Rule 651(c) certificate raises a presumption that postconviction counsel adequately in-
vestigated, amended, and properly presented the defendant’s claims. Id. Regardless of whether
the claims raised in the petition have merit, remand is required when postconviction counsel fails
to comply with Rule 651(c). People v. Suarez, 224 Ill. 2d 37, 47, 862 N.E.2d 977, 982 (2007).
The appellate court reviews de novo whether an attorney complied with Rule 651(c). People v.
Blanchard, 2015 IL App (1st) 132281, ¶ 15, 43 N.E.3d 1077.
¶ 42 B. This Case
¶ 43 1. The Arguments of the Parties
¶ 44 We note that the circumstances of this case are highly unusual, and our resolution
of this case is guided by the manner in which the parties have framed the specific issue on ap-
peal. As a result, we begin by setting forth the precise arguments of the parties.
- 12 - ¶ 45 Defendant claims his postconviction counsel provided unreasonable assistance by
failing to support his petition with further affidavits. The only evidence supporting defendant’s
claim regarding a juror’s improper third-party communication was defendant’s own affidavit.
Although postconviction counsel filed an amended petition, he adopted defendant’s pro se alle-
gations without alteration or any additional documentary support. Defendant argues the pro se
claim was insufficient without more to make a substantial showing of a constitutional violation.
¶ 46 Defendant asserts that postconviction counsel should have presented an affidavit
from Ward or other supporting documentation to demonstrate that defendant was potentially
prejudiced by Ward’s misconduct. Defendant contends that postconviction counsel wrongly be-
lieved he could stand on the pro se allegations and receive an evidentiary hearing. Because post-
conviction counsel did not understand what was required to survive second-stage proceedings,
defendant claims he was denied effective assistance of postconviction counsel.
¶ 47 In its brief, the State argues only that postconviction counsel was not required to
amend defendant’s pro se petition because the petition and affidavit stated a complete claim. The
State does not address whether or not postconviction counsel complied with Rule 651(c) in any
other respect. At oral argument, the State clarified that although the petition stated a complete
legal claim in appropriate form, it did not make a substantial showing that (1) trial counsel acted
unreasonably or (2) that Ward’s actions prejudiced defendant.
¶ 48 Ultimately, we agree with defendant in so far as postconviction counsel could
have made amendments to the pro se petition that would have made clear that defendant was en-
titled to a third-stage evidentiary hearing. The sole claim that defendant asserts was meritorious
is the claim that trial counsel was ineffective for failing to bring to the trial court’s attention
(1) an instance of juror misconduct and (2) that a juror had potentially been exposed to
- 13 - prejudicial information. We therefore first set forth the standards for ineffective assistance of
trial counsel and then the law applicable to juror misconduct and bias, before examining whether
postconviction counsel complied with Rule 651(c) by adequately presenting these claims.
¶ 49 2. The Applicable Law
¶ 50 a. Ineffective Assistance of Trial Counsel
¶ 51 To establish a claim of ineffective assistance of trial counsel, the defendant must
show that counsel’s performance was (1) deficient and (2) prejudicial. People v. Westfall, 2018
IL App (4th) 150997, ¶ 61, 115 N.E.3d 1148. A defendant’s failure to satisfy either prong
negates a claim of ineffective assistance of counsel. People v. Fellers, 2016 IL App (4th)
140486, ¶ 23, 77 N.E.3d 994. To establish deficient performance, a defendant must demonstrate
that his attorney’s performance at trial fell below an objective standard of reasonableness.
Westfall, 2018 IL App (4th) 150997, ¶ 62. “Matters of trial strategy generally will not support a
claim of ineffective assistance of counsel unless counsel failed to conduct any meaningful
adversarial testing.” People v. Sharp, 2015 IL App (1st) 130438, ¶ 102, 26 N.E.3d 460.
¶ 52 To establish prejudice, a defendant must show that but for counsel’s errors, there
is a reasonable probability that the result of the proceeding would have been different. Westfall,
2018 IL App (4th) 150997, ¶ 63. A reasonable probability is a probability which undermines
confidence in the outcome of the trial. Id. Put another way, the question is whether counsel’s
deficient performance rendered the result of the trial unreliable or fundamentally unfair. People
v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939, 953-54 (2004).
¶ 53 b. The Right to an Impartial Jury
¶ 54 A defendant has the right to an impartial and competent jury. Tanner v. United
States, 483 U.S. 107, 126 (1987). The Illinois Supreme Court has set forth the standard to apply
- 14 - in situations where a juror communicates with third parties as follows:
“ ‘ “It is well settled in Illinois that any communication with a juror during
trial about a matter pending before the jury is deemed presumptively prejudicial to
a defendant’s right to a fair trial. Although this presumption of prejudice is not
conclusive, the burden rests upon the State to establish that such contact with the
jurors was harmless to defendant. [Citations.] A verdict will not be set aside
where it is obvious that no prejudice resulted from a communication to the jury,
either by the court or by third persons outside the presence of the defendant.” ’ ”
Hobley, 182 Ill. 2d at 460, quoting People v. Mitchell, 152 Ill. 2d 274, 341, 604
N.E.2d 877, 910 (1992), quoting People v. Harris, 123 Ill. 2d 113, 132, 526
N.E.2d 335, 343 (1988).
¶ 55 In Hobley, the defendant filed a postconviction petition alleging that his jury was
tainted by extraneous outside influences and supported his claim with the affidavits of four ju-
rors. Id. at 458-59. The jurors were approached while sequestered by men who “yelled out,
‘Hang the motherfucker,’ ” and other statements about the defendant’s guilt. Id. at 459. The ju-
rors present were quite upset, and one “was scared and felt that [her] life was in danger.” Id.
Even a juror not present for the incident indicated “the jurors who were present were ‘extremely
shaken.’ ” Id. The Illinois Supreme Court concluded that the defendant was entitled to a third-
stage evidentiary hearing on his claim. Id. at 462.
¶ 56 By contrast, in People v. Williams, 209 Ill. 2d 227, 234, 807 N.E.2d 448, 453
(2004), postconviction counsel presented the affidavit of one juror, who related that another juror
“ ‘had a conversation’ with her husband about one of the issues in the case. When a third juror
commented that they had been instructed not to discuss the case with others, she responded that
- 15 - it was ‘hard not to.’ ” The defendant argued to the supreme court that “the unidentified juror’s
conversation with her husband about an issue in the case, in violation of the judge’s instructions,
is a similar improper extraneous contact [to the one present in Hobley.]” Id. at 241. The supreme
court disagreed stating, “The lesson of Hobley is that a juror affidavit alleging exposure to ‘prej-
udicial outside influences’ [citation], is sufficient to raise a presumption of prejudice and to shift
the burden to the State to establish that such contacts were harmless.” (Emphasis in original.) Id.
(quoting Hobley, 182 Ill. 2d at 459). The supreme court concluded that even viewing all of the
statements in the juror’s affidavit in the light most favorable to the defendant, he failed to make a
substantial showing of a constitutional deprivation. Id. at 242.
¶ 57 3. Postconviction Counsel Was Required To Amend Defendant’s Claim
¶ 58 In this (highly unusual) case, defendant’s postconviction claim more accurately
centers on juror misconduct or bias than ineffective assistance of counsel. As a result, postcon-
viction counsel could have cleared up a number of issues for the trial court that would have
clearly demonstrated that defendant was entitled to a third-stage evidentiary hearing. Because de-
fendant frames the issue solely as one of whether postconviction counsel failed to comply with
Rule 651(c), and because the State argues only that the pro se petition stated a complete claim,
we conclude that postconviction counsel acted unreasonably by failing to make simple amend-
ments that would have resulted in the trial court’s advancing the petition to a third-stage hearing.
¶ 59 First, the trial court was confused regarding whether Ward made her post during
jury selection or after she had been seated as a juror, as indicated by its comments regarding
claim five at the hearing on the motion to dismiss. At oral argument, defendant asserted this tim-
ing issue was a crucial distinction because if Ward made the post after the court instructed her
not to discuss the case, she demonstrated an inability or unwillingness to follow the trial court’s
- 16 - clear instructions. Similarly, the trial court informed jurors to report if any person attempted to
influence their decision, and Ward did not report the responses she received to her post. A de-
fendant may state a claim of juror misconduct if the juror’s actions “involve[s] flagrant miscon-
duct bearing directly on the fairness of the defendant[’s trial.]” People v. Cloutier, 178 Ill. 2d
141, 162, 687 N.E.2d 930, 939 (1997).
¶ 60 Here, Ward’s conduct can only be “misconduct” if she made her post after the
trial court instructed her not to (and likewise failed to report the improper responses (potentially)
attempting to influence her decision). The conflict between the timing stated in defendant’s veri-
fied petition versus that in his affidavit was clear on the face of the pleading. Postconviction
counsel could have resolved the ambiguity simply by amending the petition to make the allega-
tions in the petition consistent with those in defendant’s affidavit, which stated Ward acted after
she was seated as a juror and instructed by the court.
¶ 61 Additionally, postconviction counsel could have attached further affidavits to cor-
roborate defendant’s claims and demonstrate prejudice. Defendant’s affidavit clearly identified
three people with further information about the alleged misconduct: (1) defendant’s wife,
(2) Keiswetter, and (3) Ward. Any one of these persons could have described the allegedly preju-
dicial communications, how they were transmitted, and further information about those commu-
nications, such as who wrote the allegedly prejudicial responses and whether those responses
were intended to influence Ward. They also could have helped counsel locate and provide docu-
mentation of Ward’s initial communication and any responses thereto. Such documentation may
have demonstrated whether Ward replied to the messages or otherwise indicated that she read
them. Most importantly, only Ward could say whether the responses did, in fact, influence her.
¶ 62 However, nothing in the record indicates that postconviction counsel attempted to
- 17 - contact any of these people or obtain a copy of Ward’s initial communication or the responses.
Instead, counsel argued he was not required to do anything because the petition was sufficient on
its own. In Waldrop, 353 Ill. App. 3d at 249, the Second District reversed the second-stage dis-
missal of the defendant’s postconviction petition because counsel “mistakenly believed that he
did not have a duty to seek an affidavit from the witness specifically identified in defendant’s
pro se petition.” Id. at 250. Postconviction counsel failed to comply with Rule 651(c) because,
“[a]t a minimum, counsel was obligated to attempt to obtain evidentiary support for claims raised
in the pro se petition.” Id. at 251.
¶ 63 In this case, the record supports the contention that postconviction counsel did not
understand what was required of him under the Act. Postconviction counsel could have, and
should have, (1) amended the petition to clarify the timing discrepancies, (2) presented a copy of
Ward’s communication and the allegedly prejudicial responses, (3) provided affidavits from
Ward, Keiswetter, or defendant’s wife, or (4) explained why such actions could not have been
taken. Counsel’s failure to take any of these steps here is all the more glaring given that the State,
in its motion to dismiss, specifically argued the petition should be dismissed because it lacked
(1) corroborating affidavits, (2) a copy of the post or responses, and (3) an affidavit from Ward.
See People v. Turner, 187 Ill. 2d 406, 414, 719 N.E.2d 725, 729-30 (1999) (explaining counsel’s
failure to attach affidavits was particularly concerning because he responded to State’s motion to
dismiss by noting the claims were based on evidence outside of the record on direct appeal)
Given our lack of confidence that counsel understood he needed to take these steps and his fail-
ure to take them, we conclude he failed to comply with Rule 651.
¶ 64 Ordinarily, we would remand the case for postconviction counsel to comply with
Rule 651. However, because this case centers on whether Ward was exposed to prejudicial
- 18 - outside information or otherwise engaged in misconduct, we conclude judicial economy is best
served by the trial court conducting a third-stage evidentiary hearing giving defendant the oppor-
tunity to prove his claim. We make clear that we express no opinion on the ultimate merits of de-
fendant’s claim.
¶ 65 III. CONCLUSION
¶ 66 For the reasons stated, we reverse and remand for third-stage proceedings.
¶ 67 Reversed and remanded.
- 19 -