People v. Courney

Opinion

2023 IL App (1st) 1211623 No. 1-21-1623

FIRST DIVISION August 7, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 15 CR 16457 ) JALEEL COURNEY, ) ) The Honorable Defendant-Appellant. ) Carl Boyd, ) Judge Presiding.

____________________________________________________________________________

JUSTICE Pucinski delivered the judgment of the court. Justice Lavin specially concurred. Justice Coghlan specially concurred.

ORDER

¶1 Held: The trial court’s second-stage dismissal of defendant’s petition for postconviction relief is affirmed where postconviction counsel rendered a reasonable level of assistance in compliance with Supreme Court Rule 651(c).

¶2 On appeal from the second-stage dismissal of his petition for postconviction relief, Jaleel

Courney, the defendant, argues that we should remand for further second-stage proceedings

because postconviction counsel failed to provide a reasonable level of assistance pursuant to

Illinois Supreme Court Rule 651(c) (eff. April 26, 2012) by failing to make the amendments 1-21-1623

necessary to adequately present defendant’s claims of constitutional error. For the reasons that

follow, we disagree and affirm the second stage dismissal of his postconviction petition.

¶3 BACKGROUND

¶4 Defendant was charged with two counts of aggravated vehicular hijacking (720 ILCS 5/18-

4(a)(3 and 4)), one count of armed robbery (720 ILCS 5/18-2(a)(2)), one count of aggravated

robbery (720 ILCS 5/18-1(a)(1)), one count of possession of a stolen motor vehicle (625 ILCS

5/4-103(a)(1)), and one count of aggravated fleeing or attempt to elude a peach officer (625 ILCS

5/11-204.1(a)(1)). On June 28, 2017, defendant was sentenced to ten years’ imprisonment for

armed robbery (720 ILCS 5/18-2(a)(1) (West 2000), as part of a negotiated plea agreement in

which the State agreed to amend language in the indictment from “with a firearm to a dangerous

weapon other than a firearm” and to nolle prosecui the remaining counts of the indictment.

Pursuant to the negotiated plea agreement, defendant would serve 50% of his sentence and receive

656 days of sentencing credit. Violation of subsection (a)(1) of the armed robbery statute is a Class

X offense with a sentencing range of six to 30 years’ imprisonment. 720 ILCS 5/18-2 (West 2000);

730 ILCS 5/5-4.5-25(a) (eff. January 1, 2020).

¶5 During the plea hearing, the trial court admonished defendant that he had the right to plead not

guilty and to have a trial before a judge or a jury. After defendant acknowledged his signature on

the jury waiver form, defendant also acknowledged that his understood that he had the right to a

jury trial, he was “waiving [his] right to see and hear witness, you waive your right to call

witnesses, and you also are waiving your right to remain silent and require the State to prove you

guilty beyond a reasonable doubt.” The trial court informed defendant that his guilty plea “could

have an impact on his ability to obtain housing in the public or private sector, obtain employment,

and obtain a work license or…occupational license.” Defendant acknowledged that he was

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pleading guilty of his own free will. The State then provided a factual basis for defendant’s plea,

and defense counsel stipulated to that testimony. Defendant also acknowledged his signature on

the waiver of his pre-sentence investigation report.

¶6 Upon entering judgment, the trial court stated:

“You do have a right to appeal. If you wish to appeal, within 30 days you need

to file a motion to withdraw this guilty plea. If I grant the motion this matter and

any other count that was dismissed could be fully reinstated and set for trial.

If I denied your motion then you have 30 days from the date of that denial to

file a written Notice of Appeal. Any issue that you fail to raise in the initial appeal

will be waived for appeal purposes, and if you are indigent a copy of today’s

transcript will be given to you free of charge.”

¶7 Defendant acknowledged understanding his right to appeal. Defendant did not file a motion to

withdraw his negotiated guilty plea under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017)

within the 30-day time limitation.

¶8 Prior to filing a pro se postconviction petition in this case, defendant mailed various

correspondence to the Clerk of the Circuit Court. In November and December of 2017, he mailed

two letters to the Clerk of the Circuit Court requesting a copy of his guilty plea transcript and his

docket sheet. On January 19, 2018, he sent another letter to the Clerk of the Circuit Court in which

he requested to withdraw his guilty plea. Subsequently, on April 30, 2018, defendant mailed a

petition to withdraw his guilty plea. The circuit court found that, because defendant’s request was

made more than 30 days after his guilty plea, it did not have jurisdiction to consider this request.

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¶9 On April 15, 2020, petitioner filed a pro se postconviction petition, alleging that he was denied

his constitutional right to effective assistance of trial counsel for failing to file a motion to withdraw

his guilty plea. He alleged:

“On approximately July 30, 2017, I wrote my defense counsel a letter requesting

that he file a motion to withdraw my guilty plea. In the body of the letter, I

complained about the length of the sentence that I received, telling my attorney that

it was too much. That I also told my attorney that I did want a presentence

investigation because it could help in being able to obtain a lesser sentence. I told

my attorney as well that the factual basis information was incorrect and based upon

my criminal record, I thought it would be a meritorious ground for withdrawing my

plea.”

¶ 10 He further averred that, after realizing that his attorney had not filed a motion to withdraw his

guilty plea, he filed a pro se motion to withdraw his guilty plea on January 31, 2018, which the

circuit court subsequently denied.

¶ 11 In September of 2020, defendant filed a pro se motion to docket his postconviction petition.

He argued that the circuit court had failed to examine his postconviction petition within the

statutorily-required 90 day review period. Then, on November 23, 2020, defendant filed another

pro se petition in which he reasserted his earlier claim that his trial counsel was ineffective for

failing to file a motion to withdraw his guilty plea and that the circuit court had not yet addressed

his petition.

¶ 12 On February 21, 2021, the circuit court docketed defendant’s pro se postconviction petition

and appointed the public defender to represent defendant. After the case was continued,

postconviction counsel filed an appearance and informed the circuit court that he needed to review

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a copy of the transcript for this case. On October 8, 2021, postconviction counsel filed a certificate

pursuant to Illinois Supreme Court Rule 651(c), in which counsel averred, in part, that: “I have not

made any amendments to the petitions filed pro se. None are necessary for an adequate presentation

of petitioner’s contentions.”

¶ 13 On November 12, 2021, the State filed a motion to dismiss the petition. At the hearing on

defendant’s pro se petition, the State argued that while defendant averred that he wanted to file a

motion to withdraw his guilty plea, but the date that he indicated that he sent the letter to his trial

counsel was beyond the 30-day deadline for filing such a motion. Consequently, the circuit court

would not have had any jurisdiction to hear a motion to withdraw his guilty plea. Postconviction

counsel stated, “I have reviewed the trial transcript - - the plea transcript as well as the statute and

the time line. Therefore, we’d just be resting on the motion.”

¶ 14 The circuit court granted the State’s motion to dismiss. The circuit court stated that it reviewed

the transcript from the plea hearing to determine if defendant’s trial counsel was ineffective and

found that defendant “clearly and voluntarily entered the plea according to the record[,]” and that

defendant was aware that he had 30 days to withdraw his plea of guilty. The court considered that

defendant, in his pro se petition, acknowledged that he wrote a letter to his trial counsel asking

counsel to file a motion to withdraw his guilty plea, but did so two days beyond the 30-day deadline

to withdraw his guilty plea.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant argues that his postconviction counsel failed to render reasonable

assistance at the second stage of postconviction proceedings pursuant to Illinois Supreme Court

Rule 651(c). Defendant contends that postconviction counsel’s assistance was unreasonable

because the record rebuts the presumption of compliance with Rule 651(c) when counsel failed to

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amend defendant’s pro se postconviction petition to include a claim that trial counsel was

ineffective for failing to perfect defendant’s appellate rights by filing a late notice of appeal.

Defendant acknowledges that his request to his trial counsel to file a motion to withdraw his guilty

plea was untimely, but he now alleges, for the first time, that his trial counsel could have remedied

this failure by filing a late notice of appeal and attacking the sufficiency of the admonishments

provided to defendant pursuant to Illinois Supreme Court Rule 605(c). Ill.S.Ct.R. 605(c) (eff. Oct.

1, 2001).

¶ 17 In turn, the State contends that postconviction counsel established compliance by filing a Rule

651(c) certificate and defendant did not rebut the presumption of compliance. Postconviction

counsel did not have any duty to amend the petition to include a claim of ineffective assistance of

trial counsel for failing to file a late notice of appeal and attacking the sufficiency of the Rule

605(c) admonishments where this amounted to a “new” claim. Alternatively, the State contends

that, even if this did not amount to a “new” claim, the underlying claim of ineffective assistance

of trial counsel amounted to a meritless claim so postconviction counsel did not have any duty to

amend defendant’s petition to include a meritless claim.

¶ 18 The Illinois Post-Conviction Hearing Act (Act) provides a three-stage process for a criminal

defendant to allege that his conviction was the result of a substantial denial of his constitutional

rights. 725 ILCS 5/122-1 et seq. (West 2018). In this case, the circuit court dismissed defendant’s

petition at the second stage. At the second stage, counsel may be appointed to an indigent defendant

(725 ILCS 5/122-4 (West 2018)), and the State, as the respondent, enters the litigation. (725 ILCS

5/122-5 (West 2018). The circuit court must determine whether the petition and any accompanying

documentation make a substantial showing of a constitutional violation. People v. Cotto, 2016 IL

119006, ¶ 28. At this stage, all well-pleaded facts that are not positively rebutted by the trial record

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are to be taken as true. People v. Pendleton, 223 Ill.2d 458, 473 (2006). The court reviews the

petition’s factual sufficiency as well as its legal sufficiency considering the trial court record and

applicable law. People v. Ryburn, 2019 IL App (4th) 170779, ¶ 22 (citing People v. Alberts, 383

Ill.App.3d 374, 377 (4th Dist. 2008)). If the defendant makes such a showing, then he is entitled

to a third-stage evidentiary hearing. 725 ILCS 5/122-6 (West 2014). We review de novo the circuit

court’s dismissal of a postconviction petition at the second stage. Pendleton, 223 Ill.2d at 473.

¶ 19 At the second stage, postconviction counsel may amend the petition, and the State may move

to dismiss it. Cotto, 2016 IL 119006, ¶ 27 (citing 725 ILCS 5/122-4 (West 2010). The Act provides

for a “reasonable” level of assistance from counsel. Pendleton, 223 Ill.2d at 472. “This is because

the right to counsel in postconviction proceeds is statutorily rather than constitutionally derived.”

People v Smith, 2022 IL 126940, ¶ 13 (citing People v. Turner, 187 Ill.2d 406, 410 (1999)).

Reasonable assistance is less than the constitutionally required effective assistance of counsel.

Cotto, 2016 IL 119006, ¶ 45. To assure reasonable assistance, Rule 651(c) imposes specific duties

on postconviction counsel. Turner, 187 Ill.2d at 410. The rule’s primary purpose is to ensure that

counsel shapes the defendant’s claims, contained in the pro se petition, into proper legal form and

presents them to the court. People v. Kuehner, 2015 IL 117695, ¶ 20. Pursuant to Rule 651(c),

when counsel is appointed to represent defendant at the second stage, postconviction counsel must

(1) consult with the defendant to ascertain his contentions of deprivation of constitutional rights,

(2) examine the record of the proceedings and the trial, and (3) make any amendments to the pro

se petition that are necessary to adequately present the defendant’s contentions. Ill. S. Ct. R. 651(c)

(eff. July 1, 2017).

¶ 20 Thus, the filing of a Rule 651(c) certificate creates a rebuttable presumption that postconviction

counsel provided the defendant with reasonable assistance. People v. Custer, 2019 IL 123339, ¶

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32. Additionally, the certificate is counsel’s official representation to the court that he has fulfilled

the duties listed therein. People v. Perkins, 229 Ill.2d 34, 50 (2007). If postconviction counsel files

a certificate, “[i]t is defendant’s burden to overcome this presumption by demonstrating his

attorney’s failure to substantially comply with the duties mandated by Rule 651(c).” People v.

Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 21 Here, counsel filed a Rule 651(c) certificate, which outlined his efforts to investigate

defendant’s claims and stated his conclusion that the petition adequately set them forth. This filing

led to a rebuttable presumption that counsel provided reasonable assistance, including the

presumption that he took all reasonable efforts to investigate defendant’s claims. Custer, 2019 IL

123339, ¶ 32. This placed the burden on defendant to rebut the presumption of reasonable

assistance. People v. Landa, 2020 IL App (1st) 170851, ¶ 46. We review compliance with Rule

651(c) de novo. Profit, 2012 IL App (1st) 101307, ¶ 17.

¶ 22 Defendant does not dispute that counsel met the first two requirements of Rule 651(c) but

contends that the record rebuts the certificate’s statement that postconviction counsel made the

amendments necessary to adequately present defendant’s claims of constitutional error. On this

record, however, we find that defendant has failed to rebut the presumption that his postconviction

counsel provided reasonable assistance.

¶ 23 Postconviction counsel need not file an amended petition in every case but must make

amendments that “are necessary for an adequate presentation of petitioner’s contentions.” Ill. S.

Ct. R. 651(c) (eff. July 1, 2017). Our supreme court has further clarified what constitutes

reasonable assistance for purposes of presenting a defendant’s claim. “Fulfillment of the third

obligation does not require counsel to advance frivolous or spurious claims on defendant’s behalf.”

People v. Pendleton, 223 Ill.2d 458, 472 (2006). Moreover, while postconviction counsel “may

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raise additional issues if he or she chooses, there is no obligation to do so.” Pendleton, 223 Ill.2d

at 476. “Those requirements do not include bolstering every claim presented in a petitioner’s pro

se postconviction petition, regardless of its legal merit, or presenting each and every witness or

shred of evidence the petitioner believes could potentially support his position.” People v. Custer,

2019 IL 123339, ¶ 38. Also, 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). Accordingly, postconviction counsel only has a duty to adequately present the claims

raised by the defendant in his or her pro se postconviction petition.

¶ 24 However, in People v. Turner, 187 Ill.2d 406, 414-25 (1999), our supreme court found that

postconviction counsel did not provide reasonable assistance when counsel failed to amend the

petition to allege ineffective assistance of appellate counsel in order to overcome the forfeiture

rule for the issue raised by defendant in his pro se postconviction petition. Our supreme court thus

found that counsel’s failure to make a “routine amendment to the post conviction petition” by

failing “to shape the defendant’s claim into the appropriate legal form” resulted in “prevent[ing]

the circuit court from considering the merits of petitioner’s claims and directly contribut[ing] to

the dismissal of the petition without an evidentiary hearing.” Turner, 187 Ill.2d at 413, 417. Thus,

the focus in Turner was on the necessity of amending the defendant’s claim where it prevented the

trial court from considering the merits of defendant’s claim.

¶ 25 Here, defendant’s argument involves the issue of filing a motion to withdraw his guilty plea.

To understand defendant’s argument, we include a review of the steps involved for a defendant to

file such a motion. Before a defendant may appeal from a judgment on a plea of guilty, he must

file a written motion in the circuit court within 30 days of the date on which sentence was imposed.

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People v. Flowers, 208 Ill.2d 291, 300 (2003). Illinois Supreme Court Rule 604(d) prescribes the

type of motion that a defendant must file and provides as follows:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the

defendant, within 30 days of the date on which sentence is imposed, files in the trial

court a motion to reconsider the sentence, if only the sentence is being challenged,

or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate

the judgment.

No appeal shall be taken upon a negotiated plea of guilty challenging the sentence

as excessive unless the defendant, within 30 days of the imposition of sentence,

files a motion to withdraw the plea of guilty and vacate the judgment. For purposes

of this rule, a negotiated plea of guilty is one in which the prosecution has bound

itself to recommend a specific sentence, or a specific range of sentence, or where

the prosecution has made concessions relating to the sentence to be imposed and

not merely to the charge or charges then pending.” Ill. S. Ct. R. 604(d) (eff. July 1,

2017).

¶ 26 The filing of a Rule 604(d) is a condition precedent to an appeal from a judgment on a plea of

guilty. People v. Wilk, 124 Ill.2d 93, 105 (1988). As a general rule, the failure to file a timely Rule

604(d) motion precludes the appellate court from considering the merits of an appeal. People v.

Merriweather, 2013 IL App (1st) 113789, ¶ 14. Where a defendant has failed to file such a motion,

the court will dismiss the appeal, leaving the Post-Conviction Hearing Act as the defendant’s only

recourse. People v. Flowers, 208 Ill.2d 291, 301 (2003).

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¶ 27 However, an exception exists if the defendant did not know that filing such a motion was

necessary. Id. at 301. Illinois Supreme Court Rule 605(c) requires the circuit court, following the

entry of a negotiated plea, as in this case, to admonish a defendant, in relevant part, as follows:

“(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court, within 30

days of the date on which sentence is imposed, a written motion asking to have the

judgment vacated and for leave to withdraw the plea of guilty, setting forth the

grounds for the motion;

(3) that if the motion is allowed the plea of guilty, sentence and judgment will be

vacated and a trial date will be set on the charges to which the plea of guilty was

made;

(4) that upon the request of the State any charges that may have been dismissed as

a part of a plea agreement will be reinstated and will also be set for trial;

(5) that if the defendant is indigent, a copy of the transcript of the proceedings at

the tie of the defendant’s plea of guilty and sentence will be provided without cost

to the defendant and counsel will be appointed to assist the defendant with the

preparation of the motions; and

(6) that in any appeal taken from the judgment on the plea of guilty any issue or

claim of error not raised in the motion to vacate the judgment and to withdraw the

plea of guilty shall be deemed waived. Ill.S.Ct.R. 605(c) (eff. Oct. 1, 2001).

¶ 28 Here, the parties do not dispute that defendant entered into a fully negotiated plea of guilty,

which the trial court ultimately imposed. Thus, in order to appeal, defendant had to file within 30

days a motion to withdraw his plea. Ill.S.Ct.R. 604(d) (eff. July 1, 2017).

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¶ 29 In defendant’s pro se postconviction petition, acknowledging that his request for counsel to

file a motion to withdraw his guilty plea was not made within the time limitations, he solely alleged

that his trial counsel was ineffective for failing to file a motion to withdraw his guilty plea. He

argued that “the fact that the defendant filed an untimely, pro se, motion to withdraw his guilty

plea, does not invalidate his claim that defense counsel rendered ineffective assistance by

disregarding his request to file a motion to withdraw his guilty plea.” Thus, he sought for the circuit

court to excuse the untimeliness of his request to counsel to file a motion to withdraw his guilty

plea on the basis that his counsel ignored his request. He also provided three different bases for

withdrawing his guilty plea, including: (1) his sentence was excessive; (2) he wanted a pre-

sentence investigation report in order to obtain a lesser sentence; and (3) the factual basis for the

plea was incorrect. He alleged that, in his letter to his trial counsel, he requested that counsel file

a motion to withdraw his guilty plea “and then file a notice of appeal if need be…”

¶ 30 Now, on appeal, defendant alleges that his postconviction counsel did not provide reasonable

assistance by failing to amend his petition to raise a claim of ineffective assistance of trial counsel

for failing to file a late notice of appeal based upon the belief that the Rule 605(c) admonishments

were insufficient. While the State urges us to focus on determining whether this amounted to a

“new” argument, we choose to follow the language in Turner to determine whether the suggested

amendment was necessary for an adequate presentation of defendant’s contention where it

prevented the trial court from considering defendant’s claim.

¶ 31 We recognize that defendant, in his pro se petition, solely focused on attempting to convince

the circuit court to excuse the untimeliness of his own request for counsel to file a motion to

withdraw. He did not allege that counsel should have filed a late notice of appeal and most

importantly, did not provide any grounds for filing of a late notice of appeal. See Ill.Sup.Ct.R.

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606(c) (eff. March 12, 2021) (a reviewing court may grant a late notice of appeal where there is a

“…motion supported by a reasonable excuse for failing to file a notice of appeal on time…or on

motion supported by a showing by affidavit that there is merit to the appeal and that the failure to

file a notice of appeal on time was not due to appellant’s culpable negligence…”). In his reply

brief, defendant argues that trial counsel merely needed to submit an affidavit averring that

defendant’s failure to file a timely notice of appeal was not due to his culpable negligence and that

there was merit to his appeal, and “both of which the record supports.” He asserts, in part, that “jail

officials refused [his] request to use the law library” during the 30-day window. He also asserts

that he attempted to file a timely pro se motion to withdraw his guilty plea within the time

limitations, but “it was never docketed by the circuit court.” However, defendant made these

assertions in a subsequently filed petition to withdraw his guilty plea. There is no evidence that

defendant informed his trial counsel about any difficulties that he had with filing a motion to

withdraw his guilty plea. Consequently, there is no evidence that his trial counsel was aware of

any difficulties that defendant may have had in seeking a motion to withdraw his guilty plea or

any concern in order to support an averment that defendant’s failure to file a timely notice of appeal

was not due to his culpable negligence.

¶ 32 Further, we recognize that defendant, in his pro se postconviction petition, also did not allege

that the admonishments that he received were insufficient and violated Rule 605(c). In fact, in his

postconviction petition, defendant clearly expressed his understanding that he needed to file a

written motion to withdraw his guilty plea with the 30-day time limitation. In light of the absence

of these allegations, as well as providing grounds for such allegations, we cannot find that

postconviction counsel provided reasonable assistance for failing to amend the petition to include

an additional claim of ineffective assistance of trial counsel.

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¶ 33 Defendant relies primarily on People v. Jennings, 345 Ill.App.3d 265 (2003) to support his

claim that postconviction counsel failed to comply with Rule 651(c). The defendant filed a pro se

postconviction petition in which he alleged that his trial counsel was ineffective for ignoring the

defendant’s request to file a motion to reconsider his sentence and a notice of appeal. The fourth

district of this court found that among counsel’s deficiencies was the failure to amend the

defendant’s claim of ineffective assistance of trial counsel, for failure to file a postplea motion to

reconsider his sentence, to include an allegation of the grounds that the defendant could have raised

in a motion to reconsider sentence. Id. at 272 (citing People v. Edwards, 197 Ill.2d 239, 258

(2001)). The court found that “such an allegation was an essential element of defendant’s claim.”

Id. at 273. The court went on to identify no fewer than seven factors trial counsel could have

included in such a postplea motion. Id. at 274.

¶ 34 Defendant’s suggestion that this case is analogous to Jennings is misplaced where there is a

crucial distinction. In Jennings, postconviction counsel failed to file a Rule 651(c) certificate, and

the burden was therefore on the State to show that the record demonstrated compliance with the

rule. See Jennings, 345 Ill.App.3d at 271 (citing People v. Carter, 223 Ill.App.3d 957, 962 (4th

Dist. 1992)). Here, postconviction counsel filed a Rule 651(c) certificate, leading to the

presumption that counsel complied with the rule, and defendant now bears the burden of

demonstrating counsel’s failure to comply. We reject defendant’s argument in his reply brief that

this distinction is “irrelevant” in this case.

¶ 35 Moreover, in Jennings, the court found unreasonable assistance of counsel for failing to amend

his petition to provide grounds for the defendant’s underlying claim in order to preserve that claim

for appellate review where those grounds were available for trial counsel from the trial record.

Here, in sharp contrast, defendant is seeking for us to find that postconviction counsel provided

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unreasonable assistance by failing to raise an entirely separate claim of ineffective assistance of

trial counsel – for failing to file a late notice of appeal - in order to circumvent the fact that his

request to withdraw his plea was untimely and for which there is no evidence that his trial counsel

was aware of any basis for filing a late notice of appeal. We decline to extend Jennings to include

a situation in which the grounds for the underlying claim, in this case ineffective assistance of trial

counsel for failing to file a late notice of appeal, is not apparent from the record available at the

time that trial counsel could have filed such a motion.

¶ 36 Moreover, in his reply brief, defendant asks us to consider the issue with the understanding that

he was an “unskilled petitioner” when he wrote his pro se petition and cites to People v. Reyes,

369 Ill.App.3d 1 (1st Dist. 2006) and People v. Thomas, 2014 IL App (2d) 121001. However, both

of these cases address a first-stage dismissal in which the defendant needed to only raise the gist

of a meritorious claim before having his petition proceed to the second stage of postconviction

review. Reyes, 369 Ill.App.3d at 12; Thomas, 2014 IL App (2d) 121001, ¶ 56. Here, we are

considering this issue at the second stage of postconviction proceedings and under the lens of

whether defendant’s postconviction petition provided the foundation for this court to find that his

postconviction counsel needed to amend defendant’s pro se petition. There is a distinction between

looking at what a defendant must do at the first stage and what postconviction counsel must do at

the second stage.

¶ 37 Defendant also argues in his reply brief that he does not have to prove the merits of his

underlying claims, citing to People v. Suarez, 224 Ill.2d 37, 47 (2007); People v. Turner, 187 Ill.2d

406, 416 (1999); and People v. Johnson, 154 Ill.2d 227, 246 (1993). However, he further argues

that “the record suggests that [he] had a meritorious ground for an appeal.” Here, we are not basing

our decision on the merits of defendant’s underlying claim, but on the fact that, unlike in Jennings,

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the defendant did not provide any grounds for his claim in his postconviction petition to merit the

need for his postconviction counsel to amend the petition.

¶ 38 That being said, the American Bar Association Plea Bargain Task Force just issued its Report.

A news summary of the Report notes “that the current plea-bargaining system offers some benefits,

including efficiency, cost savings, certainty and a mechanism to incentivize defendants to

cooperate or accept responsibility.” However, the report found those benefits come at a cost. “The

integrity of the criminal system is negatively affected by the sheer number of cases resolved by

pleas. Police and government misconduct often goes unchecked because so few defendants

proceed to pretrial hearings where such misconduct is litigated,” the report said.

¶ 39 The task force recommended several major steps that legislatures, lawyers, judges and court

administrators can take to create a more fair and transparent plea-bargaining system. “While the

plea-bargaining process in the United States is broad and varied, the task force determined that it

was vitally important to craft a single set of principles to guide plea practices generally,” the report

found. “These principles represent our conclusions about how plea bargaining should operate

within our larger criminal justice system, a system based on the fundamental constitutional right

to trial.”

¶ 40 Among the 14 guiding principles in the report are the following:

“Principle 1: A vibrant and active docket of criminal trials and pre- and post-trial litigation

is essential to promote transparency, accountability, justice and legitimacy in the criminal

justice system.

“Principle 2: Guilty pleas should not result from the use of impermissibly coercive

incentives that force a defendant to plead guilty rather than pursue their right to a trial.

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“Principle 3: A substantial difference between the sentence offered prior to trial and the

sentence received after trial undermines the integrity of the criminal system and reflects a

penalty for exercising one’s right to trial. This differential, often referred to as the trial

penalty, should be eliminated.

“Principle 4: Charges should not be selected or amended to induce a defendant to plead

guilty or to punish defendants for exercising their rights, including the right to trial.

“Principle 5: The criminal justice system should recognize that plea bargaining induces

defendants to plead guilty for various reasons, some of which have little or nothing to do

with factual and legal guilt. In the current system, innocent people sometimes plead guilty

to crimes they did not commit.

“Principle 7: There should be robust and transparent procedures at the plea phase to ensure

that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and

that the defendant understands the consequences of their decision to plead guilty.

“Principle 8: The use of bail or pretrial detention to induce guilty pleas should be

eliminated.

“Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights,

defendants should never be required to waive certain rights. Among them: the right to

effective counsel, the right to challenge sentencing errors, the right to challenge the

constitutionality of the statute of conviction and the right to appeal.” (See

https://americanbar.org/content/dam/aba/publications/criminal.justice/plea-bargain-tf-

report.pdf)

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¶ 41 These are worthwhile goals and should be energetically discussed at all levels of our state

courts.

¶ 42 Therefore, we conclude that defendant has failed to meet his burden of overcoming the

presumption of compliance created by postconviction counsel’s Rule 651(c) certificate.

Accordingly, we affirm the order of the circuit court granting the State’s motion to dismiss

defendant’s postconviction petition.

¶ 43 CONCLUSION

¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 45 Affirmed.

¶ 46 PRESIDING JUSTICE LAVIN, specially concurring:

¶ 47 I concur in the judgment only.

¶ 48 JUSTICE COGHLAN, specially concurring:

¶ 49 Although I concur in the judgment reached in this case, I see no reason to comment on

the findings of a bar association task force concerning issues that are not relevant to the issues

raised in this appeal. In the interest of judicial restraint, I specially concur.

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