People v. Byrd

Opinion

NOTICE 2026 IL App (5th) 240304-U NOTICE Decision filed 04/28/26. The This order was filed under text of this decision may be NO. 5-24-0304 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 08-CF-1583 ) THOMAS E. BYRD, ) Honorable ) Ronald R. Slemer, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Cates and Justice Moore ∗ concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s order granting the State’s motion to dismiss at the second stage of postconviction proceedings.

¶2 Defendant, Thomas E. Byrd, appeals the Madison County circuit court’s granting of the

State’s motion to dismiss his amended postconviction petition at the second stage of the

proceedings. On appeal, defendant argues that postconviction counsel provided unreasonable

assistance by failing to provide sufficient evidentiary support in defendant’s amended

postconviction petition to support defendant’s ineffective assistance of plea counsel claim,

∗ Justice Moore fully participated in the decision prior to his retirement. See Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6 (1992). 1 violating Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For the following reasons, we

affirm.

¶3 I. Background

¶4 We limit our recitation to those facts relevant to our disposition of this appeal. We will

recite additional facts in the analysis section as needed to address defendant’s specific arguments.

¶5 On May 5, 2009, defendant entered into a partially negotiated open guilty plea agreement

with the State, whereby defendant pled guilty to home invasion (720 ILCS 5/12-11(a)(1) (West

2008)) and aggravated kidnapping (id. § 10-1(a)(1)) of his wife at the time, Melissa Hernandez.

Prior to entering into the agreement, the State offered the following factual basis:

“[Hernandez] was home by herself, that the defendant approached her residence, and that he threw a paving stone through her back door, entered into her residence and then entered into her bedroom. He was not a peace officer nor has he ever been a peace officer in the line of duty. At that point in time[,] he then entered into her bedroom. A physical confrontation then ensued. Afterwards the Defendant and the victim had sexual intercourse. After that[,] the Defendant insisted that the victim come with him over to St. Louis to the bus station. As they were in the vehicle leaving, the victim was attempting to exit the vehicle. The Defendant did not allow her to leave the vehicle. Once they crossed over the river[,] *** another physical altercation confrontation ensued where the Defendant then bit a decent chunk out of the victim’s temple."

Defendant subsequently pled guilty, and the circuit court accepted defendant’s plea.

¶6 On July 22, 2009, the circuit court sentenced defendant to two concurrent terms of 24 years

in prison followed by 3 years of mandatory supervised release. Defendant filed several pro se

motions to withdraw his guilty plea. In defendant’s May 6, 2010, pro se amended motion to

withdraw guilty plea, he argued ineffective assistance of plea counsel claiming he was “tricked,

cajoled, and coerced” by plea counsel to plead guilty. In addition, defendant claimed that plea

counsel was ineffective for failing to present, at any time, that (1) defendant acted in self-defense

to “the aggressive attack by” Hernandez during the ride to the bus station in St. Louis, Missouri;

2 (2) Hernandez voluntarily agreed to drive defendant to the bus station, as stated by Hernandez in

her signed police statement; and (3) Hernandez stated in her signed police report that she was

“NOT alarmed or frightened in any way of any harm” by defendant when he arrived at her home

“only to ask for a ride to the bus station.” In addition, defendant asserted that the State willfully

withheld the “signed police statement” from defendant “that would clearly demonstrate that the

alleged victim willfully and freely participated in sexual contact, willfully and freely gave

defendant a ride to the bus station.”

¶7 On July 14, 2010, the circuit court held an evidentiary hearing on defendant’s motion to

withdraw guilty plea. The court asked defendant, appearing pro se, if he had witnesses to call, and

defendant declined. Defendant argued that he had an email exchange between Hernandez and

defendant’s sister, Christine Byrd, indicating that Hernandez “never told the police that [he]

kidnapped her or forced her to have sex” with him. Defendant argued that his plea counsel should

have presented this evidence to the court. Prior to denying defendant’s motion, the court reminded

defendant that defendant said he was satisfied with his attorney’s representation and advice before

the court accepted his guilty plea. In denying defendant’s motion, the court did not find a sufficient

basis to allow defendant to withdraw his guilty plea, finding that no evidence demonstrated fault

on plea counsel’s part involving an alleged email. Rather, the court stated that “all of this

information was known to [defendant] at the time of the plea.”

¶8 Defendant appealed, arguing that the circuit court improperly allowed him to proceed pro

se on his motion to withdraw guilty plea and denied him a fair hearing, where the court applied an

incorrect standard and erroneously stated that the testimony from the victim would not support his

motion. People v. Byrd, 2012 IL App (5th) 100343-U, ¶¶ 19, 28. This court affirmed the circuit

court’s denial of defendant’s motion to withdraw guilty plea, finding the record demonstrated

3 defendant knowingly, intelligently, and voluntarily waived his right to counsel for the hearing on

his motion to withdraw guilty plea and that no evidence showed the court denied him the right to

call a witness. Id. ¶¶ 26, 30.

¶9 On October 22, 2012, defendant filed a pro se petition for relief pursuant to the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Defendant argued in the

petition that he was denied effective assistance of plea counsel and his right to call a witness,

specifically, Hernandez. Defendant claimed that he informed plea counsel that, if called to testify,

Hernandez would testify that defendant “never forced her to have sex or forced her to take me to

the St. Louis Bus Station.” Defendant also claimed that Hernandez would testify that he “never

used force or a threat of force to get sex or a ride to the Bus Station.” Defendant also filed pro se

motions for appointment of counsel and sentence reduction that same day. In his motion for

sentence reduction, defendant claimed that he had “a signed statement from [Hernandez] that says

the State lied” that Hernandez “sa[id] she was sexually assaulted (formally known as [r]ape) in her

home.” Defendant attached a scanned document of an email correspondence between defendant’s

sister, Christine, and Hernandez, dated September 22, 2008, in which Christine asked Hernandez

if defendant raped her. Christine stated in the email that defendant denied raping Hernandez.

¶ 10 Hernandez’s response to Christine’s email, dated September 24, 2008, stated that she

forgave defendant “because [she] believe[d] that Satan had control of him that night.” Hernandez

then detailed the events of the night. Hernandez stated that defendant broke into her home at 11:45

p.m. while she was asleep. According to Hernandez, defendant broke into “a big glass door in the

back of my apartment and he ran upstairs and broke into my room because I had that door closed

too.” Hernandez stated she had a knife, so she started “stabbing away” in the dark when defendant

entered her bedroom. Once defendant announced himself, Hernandez put the knife down.

4 Defendant, who had alcohol on his breath and was “on something else too,” started to look through

Hernandez’s clothes and proceeded to smell her underwear. Defendant then told Hernandez to take

off her clothes and have sex with him. She initially declined because she was on her period, but

then complied. She stated that she did not enjoy the sex and “at no time” did she consent to having

sex with defendant. Hernandez then stated that defendant “told me to take him to the bus station,”

and he refused to let Hernandez drive. During the drive, defendant accused Hernandez of cheating

on him. As defendant and Hernandez crossed over a bridge from Illinois to Missouri, defendant

stated to Hernandez: “ ‘You are going to die tonight!’ ” Hernandez tried to escape the car, but

defendant pulled her hair and locked the car windows and doors. In an attempt to escape,

Hernandez “messed with the st[ee]ring wheel” to run into other cars or go over the bridge.

According to Hernandez, defendant did not drive to the bus station but headed “towards a dark

road.” Once defendant stopped the car, he continued to hit Hernandez before he “took a big bite

[out] of my face” and threw the skin of her face on the backseat of the car. Hernandez escaped

from the car. While running away from the vehicle, Hernandez saw a couple who called 9-1-1 on

her behalf. Hernandez stated that she “felt *** [defendant] was going to kill [her]” that night.

Hernandez indicated that she underwent facial surgery following the incident.

¶ 11 The circuit court appointed counsel and advanced defendant’s petition to the second stage

of proceedings. Defendant’s appointed postconviction counsel did not file an amended

postconviction petition, based on defendant’s insistence that they proceed on defendant’s pro se

petition. Appointed postconviction counsel subsequently filed a “Rule 604(d)” certificate of

compliance. The State filed a motion to dismiss, arguing that defendant failed to raise his claim on

direct appeal, and thus, forfeited the claim. Following a hearing, the court granted the State’s

motion to dismiss. Defendant appealed, and the State conceded, that postconviction counsel failed

5 to file a Rule 651(c) certificate of compliance and that the record failed to show that counsel

substantially complied with the rule. People v. Byrd, No. 5-17-0010 (2019) (unpublished summary

order under Illinois Supreme Court Rule 23(c)). This court reversed the circuit court’s order

dismissing defendant’s postconviction petition and remanded the cause for further second-stage

proceedings, including the appointment of new postconviction counsel. Id. This court issued its

mandate on December 9, 2019.

¶ 12 On March 9, 2022, newly appointed postconviction counsel filed an amended

postconviction petition. Incorporating defendant’s pro se postconviction petition, counsel argued

that appellate counsel rendered ineffective assistance by failing to “allege and argue that plea trial

counsel was ineffective for failure to investigate the case,” and plea counsel was ineffective for

failure to talk with two witnesses prior to advising defendant to enter into the plea to receive “7-8

years in the department of corrections.” Postconviction counsel filed an amended certificate of

counsel pursuant to Rule 651(c). In response, the State filed an amended motion to dismiss

defendant’s postconviction petition on April 19, 2022.

¶ 13 On October 2, 2023, defendant’s appointed postconviction counsel filed an amended

postconviction petition and a Rule 651(c) certificate of compliance. Postconviction counsel

incorporated defendant’s prior postconviction petitions (October 22, 2012, and March 9, 2022)

and also argued that plea counsel failed to investigate and talk to two witnesses—Hernandez and

Christine—in anticipation of defendant’s trial. Postconviction counsel attached an unnotarized

affidavit of defendant attesting that Hernandez would testify that she and defendant had consensual

sex, and that Hernandez, understanding defendant had been drinking alcohol, “asked” defendant

if he was able to drive himself. Defendant also stated that Hernandez would testify that, although

she and defendant argued that night, defendant did not threaten to kill her if she failed to comply

6 with his requests to have sex or drive him to a bus station. Defendant also attested that Christine

would testify that she spoke to Hernandez who admitted that defendant did not force or threaten

Hernandez to have sex or drive defendant to the bus station. Defendant further claimed his

“innocence in this matter.” Defendant did not attach the email correspondence to the amended

postconviction petition.

¶ 14 On October 11, 2023, the State filed a second amended motion to dismiss. The State argued

that defendant’s argument that Hernandez would testify that defendant did not force her to have

sex or drive him to a bus station was based on an “email correspondence between his sister,

Christine Byrd, and the victim, Melissa Hernandez, dated September 24, 2008.” The State

indicated that it appeared defendant’s plea counsel received the email correspondence “as of

January 5, 2009, as shown by a forward sent by Christine Byrd to” plea counsel’s law office. The

State argued that, although defendant wrote an affidavit claiming Hernandez would testify to his

innocence, Hernandez herself never filed an affidavit stating that defendant did not sexually assault

or kidnap her. The State highlighted various portions of the email, contending that the email did

not “absol[ve] [defendant] of guilt, [but] in reality[,] stated the opposite.” The State’s motion to

dismiss stated the following:

“The email sent by the victim was in response to defendant’s sister’s email asking, ‘I have

to ask you did Thomas actually rape you.’ In response, the victim states as follows:

a. ‘… I believe that Satan had control of him that night.’

b. ‘… he broke into a big glass door… and broke into my room…’

c. ‘… told me to take off my clothes, I said “no babe, please!” he said, “take off your

clothes!” … I didn’t want to do it but I took off my clothes and took out my tampon

and let him in me … At no time did I enjoy it and at no time did I will him ”yes” ’

7 d. [‘]He accused me of cheating. And asked me if I was willing to take that lie to my

grave… he told me “You’re going to die tonight!” … I tried to get out but he had locked

my door and my window, so I started kicking my window on my side…but I couldn’t

open or break it. At this time he was pulling my hair… I started messing wit [sic] the

steering wheel and trying to run us into cars or over the bridge. I just wanted my

nightmare to be over … he repeated again, “you are going to die tonight!” Instead of

going towards the [bus] station, he headed off towards a dark road, which scared me

more because I felt as if we were driving towards hell …’ ”

The State asserted that a competent attorney with knowledge of this email would not present the

email in defense of defendant’s claims. In addition, the State argued that defendant himself was

aware of the email and made no reference to it at the time of his plea and at sentencing, even

though Hernandez reiterated her allegations against defendant in a victim statement that

defendant’s actions caused her to live with fear “ ‘every day.’ ” The State also stated that defendant

made his ineffectiveness of plea counsel claim in his motion to withdraw guilty plea.

¶ 15 On November 29, 2023, the circuit court held a hearing on the State’s motion to dismiss.

At the hearing, the State argued that defendant based his amended postconviction petition on an

email exchange between Christine and Hernandez, alleging that Hernandez stated she was not

raped or kidnapped by defendant. However, the State argued that Hernandez “does not say

anything of that at all in the entire email.” Rather, the State asserted that the email provided

Hernandez’s version of events of “what happened that night, which was consistent with the facts

of the case, which was presented in the factual basis to which the defendant pled guilty.” As such,

the State contended that the email and defendant’s assertion that plea counsel was incompetent for

failure to investigate and interview Christine and Hernandez were irrelevant. The State also

8 highlighted that there were no affidavits from Christine or Hernandez to support defendant’s

amended postconviction petition.

¶ 16 In response, postconviction counsel agreed that there was no affidavit from Hernandez,

stating:

“I have yet to be provided a good address and phone number for the victim to be

able to talk to the victim to see whether or not that email reads as it does or if my client is

in fact correct that that email should be the thing that would exonerate him.

The information that my client has is old. At one of our status hearings [the State]

indicated [they] would not provide me with the address and phone number of the victim.

And I have no way of contacting her otherwise to actually get an affidavit to attach.”

Postconviction counsel stated that she “contacted” Christine but played “phone tag” with her over

the past two months, noting that Christine “works during the day and sometimes can’t get out of

meetings.” Postconviction counsel continued to state that Christine “contacted [her] *** while

[she] was sitting in here waiting for this hearing to start.” Postconviction counsel asserted that

neither defendant’s plea counsel nor his first postconviction counsel ever contacted Christine or

Hernandez. In response, the State asserted that “[postconviction] counsel told me she did have an

address for [Hernandez].” Postconviction counsel responded that she did in fact have an address

for Hernandez but “d[id]n’t know whether it’s a good address.”

¶ 17 On February 28, 2024, the circuit court entered a written order granting the State’s motion

to dismiss defendant’s amended postconviction petition at the second stage of the proceedings. In

denying defendant’s amended postconviction petition, the court found that defendant’s

postconviction petition failed to make a substantial showing of a constitutional violation, noting

that defendant previously raised these facts in his motion to withdraw guilty plea and the claim

9 was addressed by the appellate court (see Byrd, 2012 IL App (5th) 100343-U). As such, the court

determined defendant’s issues had been fully litigated. Defendant filed a timely notice of appeal.

¶ 18 II. Analysis

¶ 19 Defendant argues that postconviction counsel failed to provide reasonable assistance on

remand, in violation of Rule 651(c), by failing to provide sufficient evidentiary support for his

claim that plea counsel failed to interview two known witnesses prior to defendant’s plea

agreement. Specifically, defendant asserts that postconviction counsel, similar to plea counsel,

failed to properly interview and obtain affidavits from Hernandez and Christine “to determine if

they would have previously agreed to give exculpatory evidence on [defendant’s] behalf at trial if

they had been contacted by [defendant’s] plea counsel.” Defendant also argues that postconviction

counsel failed to present defendant’s claim in proper legal form, where counsel failed to explain

in either the amended petition or defendant’s unnotarized affidavit “ ‘why’ ” defendant or counsel

believed Christine and Hernandez “would say that they had been willing to provide favorable

testimony on [defendant’s] behalf.” We disagree.

¶ 20 The Act allows a defendant to collaterally attack a final judgment and is not a substitute

for an appeal. People v. Edwards, 2012 IL 111711, ¶ 21. The Act provides a process where a

convicted defendant may assert a substantial denial of his or her constitutional rights which

occurred in the defendant’s original trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491,

502 (1998). During the first stage of postconviction proceedings, the defendant has a “low

threshold” and only needs to provide sufficient facts to present the gist of a constitutional claim.

People v. Brown, 236 Ill. 2d 175, 184 (2010). During the second stage, the legal sufficiency of the

postconviction petition is tested. People v. Domagala, 2013 IL 113688, ¶ 35. The State may file

an answer or move to dismiss at this stage. 725 ILCS 5/122-5 (West 2022). The postconviction

10 petition is dismissed if the defendant fails to make a substantial showing of a constitutional

violation through the petition and attached documentation. People v. Edwards, 197 Ill. 2d 239, 246

(2001). A postconviction petition dismissal at the second stage is reviewed de novo. People v.

Sanders, 2016 IL 118123, ¶ 31.

¶ 21 Here, defendant’s postconviction petition was dismissed at the second stage of

postconviction proceedings. During the second stage, the petitioner bears the burden of making a

substantial showing of a constitutional violation. Domagala, 2013 IL 113688, ¶ 35 (citing People

v. Pendleton, 223 Ill. 2d 458, 473 (2006)). This does not mean that evidentiary questions are

resolved at this stage. Id. In addition, the court does not engage in any fact-finding or credibility

determinations but must take as true “ ‘all well-pleaded facts that are not positively rebutted by the

original trial record.’ ” Id. (quoting People v. Coleman, 183 Ill. 2d 366, 385 (1998)). The second

stage of postconviction review tests the legal sufficiency of the petition. Id. “Unless the petitioner’s

allegations are affirmatively refuted by the record, they are taken as true, and the question is

whether those allegations establish or ‘show’ a constitutional violation.” Id. In other words, the “

‘substantial showing’ of a constitutional violation that must be made at the second stage (Edwards,

197 Ill. 2d at 246) is a measure of the legal sufficiency of the petition’s well-pled allegations of a

constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to

relief.” (Emphasis in original.) Domagala, 2013 IL 113688, ¶ 35.

¶ 22 In postconviction proceedings, the defendant has a statutory, rather than constitutional,

right to counsel. 725 ILCS 5/122-4 (West 2022); People v. Turner, 187 Ill. 2d 406, 410 (1999).

The Act requires postconviction counsel to provide a “reasonable level of assistance.” Turner, 187

Ill. 2d at 410. Illinois Supreme Court Rule 651(c) imposes specific duties onto postconviction

11 counsel to ensure that a reasonable level of assistance has been provided. People v. Suarez, 224

Ill. 2d 37, 42 (2007). Rule 651(c) provides that,

“The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s 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.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 23 Filing a 651(c) certificate creates a rebuttable presumption of reasonable assistance. People

v. Addison, 2023 IL 127119, ¶ 21. “The defendant bears the burden of overcoming that

presumption by showing that postconviction counsel did not substantially comply with the

strictures of the rule.” Id. The defendant may overcome this presumption by demonstrating that

postconviction counsel did not make all the necessary amendments to a pro se petition, including

those amendments necessary to overcome any procedural bars. Id. If postconviction counsel fails

to meet their duties under Rule 651(c), a remand is necessary, regardless of the petition’s merit.

Id. ¶ 42.

¶ 24 Here, the record indicates that postconviction counsel made a concerted effort, although

unsuccessful, to interview and obtain affidavits from Hernandez and Christine. Postconviction

counsel indicated that she attempted to contact Christine for two months. However, she and

Christine played phone tag and had not yet talked on the phone at the time of the November 29,

2023, hearing, on the State’s motion to dismiss. In addition, postconviction counsel indicated that

she could not get ahold of Hernandez because she did not have a good phone number or address.

Based on the record, we cannot conclude that postconviction counsel failed to make a concerted

effort to obtain affidavits to support defendant’s postconviction petition in an effort to adequately

present defendant’s claims. See People v. Johnson, 154 Ill. 2d 227, 241 (1993) (a circuit court’s

ruling upon a motion to dismiss a postconviction petition not supported by affidavits or other

12 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”). Thus,

nothing in the record rebuts the presumption that counsel complied with Rule 651(c) at the second

stage.

¶ 25 Moreover, and importantly, defendant’s assertions contained in his unnotarized affidavit,

and similarly stated by postconviction counsel in defendant’s October 2, 2023, amended

postconviction petition, are contradicted by the record, and his assertions run counter to the

evidence contained in the record. First, the email exchange between Christine and Hernandez

affirmatively refutes defendant’s allegations that Hernandez would testify that (1) she and

defendant had consensual sex, (2) she asked defendant if he was able to drive himself to the bus

station, and (3) defendant did not threaten to kill her if she failed to comply with his requests to

have sex or drive him to a bus station, although the two argued that night of the incident.

Furthermore, Hernandez’s victim impact statement at defendant’s sentencing demonstrates that

Hernandez had surgery on her face to repair the damage caused by defendant biting her left temple

and continued to experience psychological and mental suffering as a result of the incident.

¶ 26 For the reasons stated above, we find defendant has not presented substantial evidence that

postconviction counsel provided unreasonable assistance. Accordingly, we affirm the dismissal of

defendant’s postconviction petition at the second stage, without an evidentiary hearing.

¶ 27 III. Conclusion

¶ 28 For the foregoing reasons, we affirm the order of the circuit court of Madison County

granting the State’s motion to dismiss defendant’s amended postconviction petition at the second

stage of postconviction proceedings.

13 ¶ 29 Affirmed.