People v. Burhans

2023 IL App (3d) 200485-U

• Court: Appellate Court of Illinois
• Decided: August 10, 2023
• Docket: 3-20-0485
• Status: Unpublished

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) 200485-U

Order filed August 10, 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, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0485 v. ) Circuit No. 13-CF-543 ) JONATHAN BURHANS, ) Honorable ) Katherine S. Gorman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. Presiding Justice Holdridge and Justice Brennan concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Postconviction counsel did not provide unreasonable assistance.

¶2 Defendant, Jonathan Burhans, appeals from the second-stage dismissal of his

postconviction petition, arguing that postconviction counsel provided unreasonable assistance by

(1) filing a certificate that referenced Rule 604(d) rather than Rule 651(c), (2) neither amending

defendant’s petition nor withdrawing representation, and (3) failing to raise a challenge to the jury

instructions related to predatory criminal sexual assault of a child. We affirm. ¶3 I. BACKGROUND

¶4 Following a jury trial, defendant was convicted of two counts of predatory criminal sexual

assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and one count of aggravated criminal

sexual abuse (id. § 11-1.60(b)). The convictions arose from defendant’s conduct with his minor

child. Defendant was sentenced to terms of 24, 17, and 5 years’ imprisonment, respectively, with

the sentences running consecutively.

¶5 On direct appeal, defendant argued that the State failed to provide a foundation for the

admission into evidence of research studies that informed the opinion of a witness. People v.

Burhans, 2016 IL App (3d) 140462, ¶ 29. This court affirmed, finding that, although the State

failed to lay an adequate foundation for the studies, the error was harmless beyond a reasonable

doubt. Id. In coming to that conclusion, this court stated that the witness’s testimony “did not show

that defendant had committed the alleged crimes. It was [the minor’s] testimony, along with DNA

evidence, that overwhelmingly supported defendant’s convictions.” Id. ¶ 37.

¶6 Defendant subsequently filed a pro se postconviction petition that contained a list of

ineffective assistance of trial and appellate counsel claims and due process violations. On January

22, 2018, the circuit court advanced the petition to the second stage and appointed counsel. In the

amended petition, postconviction counsel omitted several assertions and reworded one but

otherwise merely typed the statements made by defendant in the pro se petition. Both defendant’s

petition and the amended petition included defendant’s affidavit, in which he stated that he had

informed trial counsel that he had been framed by the minor’s mother. No other affidavits or

evidence were attached to the amended petition.

¶7 In a filing captioned “Rule 604(d) Certificate,” postconviction counsel certified to the

circuit court the following:

2 “1. I have consulted with the Defendant in person, by mail, by phone or by

electronic means to ascertain the defendant’s contentions of error in the jury trial

and in the sentence;

2. I have examined the trial court file and report of proceedings of the jury

trial and the report of proceedings in the sentencing hearing; and

3. I have made any amendments to the motion necessary for the adequate

representation of any defects in those proceedings.”

The State filed a motion to dismiss, which focused on the lack of support for defendant’s claims.

For instance, in response to defendant’s claim that the State failed to give exculpatory evidence to

the defense, the State argued that defendant failed to allege the nature of the evidence and could

not show that any evidence had been withheld. On June 23, 2020, the court dismissed the petition,

finding that defendant failed to make a substantial showing of a constitutional violation.

¶8 II. ANALYSIS

¶9 On appeal, defendant argues that his postconviction counsel provided unreasonable

assistance. Specifically, defendant asserts that postconviction counsel did not (1) file a Rule 651(c)

certificate, (2) present the legal claims in proper legal form, and (3) raise a challenge to the jury

instructions used at trial.

¶ 10 Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)),

postconviction counsel is only required to provide a “reasonable” level of assistance, which is a

less rigorous standard than the constitutional guarantee of effective assistance. People v. Bass,

2018 IL App (1st) 152650, ¶ 11. Under Rule 651(c), reasonable assistance requires a showing that

postconviction counsel

3 “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.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

See People v. Carrizoza, 2018 IL App (3d) 160051, ¶ 12. The filing of a Rule 651(c) certificate

raises a rebuttable presumption that postconviction counsel rendered reasonable assistance. Bass,

2018 IL App (1st) 152650, ¶ 12. Strict compliance with Rule 651(c) is not required. Carrizoza,

2018 IL App (3d) 160051, ¶ 12. If counsel did not file a certificate that substantially complied with

Rule 651(c), reasonable assistance may be established by the record. Id. ¶ 13. Therefore, in

determining whether postconviction counsel provided reasonable assistance, we first determine

whether counsel filed a certificate that substantially complied with Rule 651(c). Id. We review

de novo the question of whether postconviction counsel provided a reasonable level of assistance.

People v. Russell, 2016 IL App (3d) 140386, ¶ 10.

¶ 11 Defendant argues that postconviction counsel filed a certificate that fails to substantially

comply with Rule 651(c) because it references the incorrect rule number and misidentifies the

petition as a “motion.” The question of whether a certificate substantially complies with Rule

651(c) should be considered on a case-by-case basis. Carrizoza, 2018 IL App (3d) 160051, ¶ 22.

In Carrizoza, this court found that a certificate referencing Rule 604(d) failed to substantially

comply with Rule 651(c) (id. ¶ 18); however, we emphasized that the holding was “not intended

to foreclose a finding of substantial Rule 651(c) compliance with regard to any and all certificates

filed in the future that contain Rule 604(d) language or are labeled as Rule 604(d) certificates.” Id.

¶ 22. When a certificate has mistakenly referenced Rule 604(d) rather than Rule 651(c), reviewing

4 courts have focused on the substance of the language in the certificate. See, e.g., id. ¶ 18; People

v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 14; People v. Mason, 2016 IL App (4th) 140517, ¶ 24.

¶ 12 In Kirkpatrick, the Second District determined that the mislabeled certificate substantially

complied with Rule 651(c) because the “substantive contents reflected that [postconviction

counsel] attempted to consult with defendant, reviewed the court file and record of proceedings,

and made any necessary amendments.” Kirkpatrick, 2012 IL App (2d) 100898, ¶ 4. In Carrizoza,

this court found that a mislabeled certificate failed to comply when it also used the language of

Rule 604(d) and stated that counsel had consulted with defendant regarding “contentions of error

in the entry of the plea of guilty and in the sentence” and “examined the trial court file and report

of proceedings of the plea of guilty and sentencing.” (Emphasis added.) Carrizoza, 2018 IL App

(3d) 160051, ¶ 18.

¶ 13 Here, although postconviction counsel filed a certificate captioned “Rule 604(d)

Certificate,” the language in the body of the certificate closely mirrors the language set forth in

Rule 651(c). Counsel certified that she had consulted with defendant, examined “the trial court file

and report of proceedings of the jury trial and the report of proceedings in the sentencing

hearing[,]” and made any necessary amendments. Although the certificate referenced a motion

rather than a petition, we find that the language substantially complies with the requirements of

Rule 651(c), as did the certificate in Kirkpatrick.

¶ 14 Because postconviction counsel filed a certificate that substantially complied with Rule

651(c), a presumption is raised that counsel complied with the rule, and the burden is on defendant

to rebut that presumption. See Carrizoza, 2018 IL App (3d) 160051, ¶ 13. Defendant argues that

the record affirmatively rebuts that presumption because counsel’s amended petition “largely

amounted to a typed copy of [defendant’s] pro se petition” and “[t]he claims themselves were

5 deficient on their face—vague and conclusory claims, without explanation.” Defendant concludes

that “either counsel determined [defendant’s] claims were meritless and advanced an [un]amended

petition without explanation, or counsel did not conclude the claims were meritless, yet did not

take the necessary steps to adequately shape them for legal presentation. As such, she provided

unreasonable assistance ***.”

¶ 15 Citing to People v. Greer, 212 Ill. 2d 192, 209 (2004), defendant argues that postconviction

counsel was required to either amend the petition or move to withdraw as counsel. We reject

defendant’s assertion that postconviction counsel may not reasonably stand on insufficient legal

claims raised by a defendant in a pro se petition. Although Greer allows postconviction counsel

to withdraw when the claims in a petition are frivolous or patently without merit, it does not compel

withdrawal in every instance where counsel is unable to amend a pro se petition. See id. at 211-12

(stating that “the inability of postconviction counsel to ‘properly substantiate’ a defendant’s claims

is not the standard by which counsel should judge the viability of a defendant’s postconviction

claims” (Emphasis in original.)). When counsel cannot establish support for claims in a pro se

petition, counsel has the option to either stand on the allegations or withdraw as counsel. People

v. Malone, 2017 IL App (3d) 140165, ¶ 10; see also Bass, 2018 IL App (1st) 152650, ¶ 20 (holding

that postconviction counsel could elect either to withdraw or to stand on the pro se petition).

¶ 16 Here, defendant’s pro se petition contained a number of broad, vague assertions such as

“[c]ounsel failed to properly prepare for trial[,]” “[c]ounsel failed to challenge the admissability

[sic] of evidence,” and “[c]ounsel failed to use evidence to impeach witnesses at trial.” Defendant

himself fails to identify what evidence or which witnesses are at issue. Instead, he merely

complains that postconviction counsel failed to amend his petition so that it established support

for his claims. However, “[a] mere failure to amend the pro se petition is not enough to establish

6 inadequacy of representation in the absence of a showing that the petition could have been

successfully amended.” People v. Johnson, 232 Ill. App. 3d 674, 678 (1992). And when, as here,

a circuit court rules upon “a motion to dismiss a post-conviction petition which is not supported

by affidavits or other documents [the court] 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 (1993). Because defendant has failed to establish

that the petition could have been successfully amended, we conclude that postconviction counsel

acted reasonably by standing on the pro se petition.

¶ 17 Finally, defendant argues that postconviction counsel provided unreasonable assistance by

failing to raise a challenge to the jury instructions used at trial. However, this claim was not raised

in defendant’s pro se petition, and postconviction counsel has no obligation to raise claims not

raised in the pro se petition. See People v. Pendleton, 223 Ill. 2d 458, 475-76 (2006). Defendant

“is not entitled to the advocacy of counsel for purposes of exploration, investigation and

formulation of potential claims.” People v. Davis, 156 Ill. 2d 149, 163 (1993). As such,

“postconviction counsel is not required to comb the record for issues not raised in the defendant’s

pro se postconviction conviction.” People v. Helton, 321 Ill. App. 3d 420, 424-25 (2001).

¶ 18 III. CONCLUSION

¶ 19 The judgment of the circuit court of Tazewell County is affirmed.

¶ 20 Affirmed.