People v. Frank

2021 IL App (3d) 180159-U

• Court: Appellate Court of Illinois
• Decided: February 10, 2021
• Docket: 3-18-0159
• Status: Unpublished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).

2021 IL App (3d) 180159-U

Order filed February 10, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0159 v. ) Circuit No. 14-CF-290 ) REX FRANK, ) Honorable ) Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court. Justice Wright concurred in the judgment. Justice Schmidt dissented. ____________________________________________________________________________

ORDER

¶1 Held: Postconviction counsel provided unreasonable assistance by failing to allege prejudice or attach an affidavit to the amended petition.

¶2 The defendant, Rex Frank, appeals the Kankakee County circuit court’s dismissal of his

amended postconviction petition. The defendant argues that postconviction counsel provided

unreasonable assistance and violated Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) by

failing to attach to the amended petition an affidavit attesting that the defendant would have rejected the plea deal if plea counsel had informed him that he could file a motion to suppress his

confession.

¶3 I. BACKGROUND

¶4 The defendant pled guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 2014))

pursuant to a fully negotiated guilty plea. According to the factual basis for the plea, on July 5,

2014, Rian Maiden was found dead at his residence with gunshot wounds to his head, arm, and

leg. Witnesses observed the defendant’s vehicle outside Maiden’s residence on the evening of July

4, 2014. The defendant allowed officers to search his vehicle, and they discovered a bank receipt.

The last four digits of the account number reflected on the bank receipt matched those of receipts

found in Maiden’s residence.

¶5 Officers learned that on July 4, 2014, $500 had been withdrawn from Maiden’s bank

account from an automated teller machine (ATM) outside a gas station. The gas station

surveillance video showed a person with the same body type as the defendant use the ATM, though

the person’s face was obscured. The defendant permitted officers to search his residence, and in

his garbage they found clothes matching those worn by the person in the surveillance video.

¶6 Officers also discovered that Maiden’s ATM card had been used to purchase flowers,

children’s clothes, and a ring from a store. The cashier who completed the transaction identified

the defendant out of a lineup, and the store’s surveillance video appeared to show the defendant

purchasing the items. Officers recovered $500, children’s clothing, flowers, and a ring from the

defendant’s girlfriend. According to the defendant’s girlfriend, she received these items from the

defendant, and when she asked him if he killed Maiden, he answered, “I did it for you.”

¶7 During an interview following his arrest, the defendant admitted to possessing the ATM

card, but denied killing Maiden. The defendant later indicated to a correctional officer that he

2 wanted to speak with sheriff’s deputies, and during the subsequent interview he confessed to

shooting and killing Maiden.

¶8 The court accepted the plea and sentenced the defendant to 45 years’ imprisonment.

¶9 The defendant filed a pro se postconviction petition, alleging that officers coerced his

confession, rendering it involuntary. The court advanced the defendant’s petition to the second

stage and appointed postconviction counsel, who filed an amended postconviction petition that

adopted the defendant’s allegation that his confession was involuntary. The amended petition also

alleged that plea counsel was ineffective for failing to file a motion to suppress the confession, and

that the defendant “suffered from a misapprehension of law in that he was never made fully aware

of the fact that the confession he made, which lead [sic] to his guilty plea, was involuntary and

subject to challenge by way of a motion to suppress.” The amended petition did not allege that the

defendant would have rejected the plea deal if plea counsel had informed him that he could file a

motion to suppress his confession. Postconviction counsel filed a Rule 651(c) certificate, asserting

that he spoke with the defendant in-person to ascertain the defendant’s contentions, examined the

record, and made necessary changes to the pro se petition to ensure an adequate presentation of

the defendant’s contentions.

¶ 10 The court granted the State’s motion to dismiss the amended petition, finding that nothing

was presented to show ineffective assistance of plea counsel. While pronouncing its decision, the

court noted that no affidavit, from the defendant or counsel, was attached to the amended petition.

The defendant appeals.

¶ 11 II. ANALYSIS

¶ 12 The defendant argues that postconviction counsel provided unreasonable assistance and

violated Rule 651(c) by failing to allege and attach to the amended petition an affidavit attesting

3 that the defendant would have rejected the plea deal if plea counsel had informed him that he could

file a motion to suppress his confession.

¶ 13 During postconviction proceedings, a defendant is entitled to reasonable assistance of

counsel. People v. Turner, 187 Ill. 2d 406, 410 (1999). To attain this level of assistance, Rule

651(c) requires postconviction counsel to certify, or that the record affirmatively show, that he

“has consulted with petitioner *** 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). When postconviction counsel

files a Rule 651(c) certificate, he creates a rebuttable presumption that he provided reasonable

assistance, and the burden shifts to the defendant to overcome this presumption. People v. Miller,

2017 IL App (3d) 140977, ¶ 47. However, we must remand when postconviction counsel fails to

fulfill his duties under Rule 651(c), for “where postconviction counsel does not adequately

complete the duties mandated by the rule, the limited right to counsel conferred by the [Post-

Conviction Hearing Act (Act)] cannot be fully realized.” People v. Suarez, 224 Ill. 2d 37, 51

(2007). “ ‘A defendant is not required to make a positive showing that his counsel’s failure to

comply with Rule 651(c) caused prejudice.’ ” People v. Ross, 2015 IL App (3d) 130077, ¶ 15

(quoting People v. Nitz, 2011 IL App (2d) 100031, ¶ 19). Our supreme court has held that remand

is required where counsel failed to fulfill the duties required under Rule 651(c), “regardless of

whether the claims in the petition had merit.” Suarez, 224 Ill. 2d at 47; see also People v. Turner,

187 Ill. 2d 406, 416-17 (1999). Therefore, our analysis does not depend on whether the defendant’s

petition in this case contained meritorious issues. Suarez, 224 Ill. 2d at 51. Whether postconviction

4 counsel met his obligations under Rule 651(c) is a question of law subject to de novo review. Id.

at 41-42.

¶ 14 Section 122-2 of the Act requires a postconviction petition to “have attached thereto

affidavits, records, or other evidence supporting its allegations or shall state why the same are not

attached.” 725 ILCS 5/122-2 (West 2016). “Postconviction counsel who fails to ensure that the

defendant’s postconviction petition included the necessary supporting affidavit provides

unreasonable assistance of counsel.” Ross, 2015 IL App (3d) 130077, ¶ 15, abrogated on other

grounds by People v. Young, 2018 IL 122598.

¶ 15 One of the claims alleged in the defendant’s amended postconviction petition was

ineffective assistance of plea counsel for counsel’s failure to inform the defendant that he could

file a motion to suppress his confession. To prevail on such an ineffective assistance of counsel

claim, a defendant must show that counsel’s performance fell below an objective standard of

reasonableness and the deficient performance prejudiced the defendant. Strickland v. Washington,

466 U.S. 668, 687 (1984). “A defendant must show there is a reasonable probability that, but for

his attorney’s errors, he would not have pleaded guilty but would have proceeded with a trial.”

Ross, 2015 IL App (3d) 130077, ¶ 14.

¶ 16 Here, the defendant’s amended postconviction petition did not allege that the defendant

would have rejected the plea deal if plea counsel had informed him of the possibility of filing a

motion to suppress his confession. Further, postconviction counsel did not attach an affidavit from

the defendant, or any other evidence, stating that he would have gone to trial if he was aware of

this option. Significantly, counsel failed to explain why he did not do so, as required by the Act.

See 725 ILCS 5/122-2 (West 2016). The court specifically noted the lack of such an affidavit

during its decision on the motion to dismiss. Therefore, postconviction counsel tendered the

5 defendant’s claim to the court in a facially defective manner, as it neglected to allege prejudice.

These facts rebut the presumption of compliance created when postconviction counsel submitted

his Rule 651(c) certificate. By failing to allege prejudice or attach a supporting affidavit,

postconviction counsel failed to shape the defendant’s ineffective assistance claim into proper

form. Thus, postconviction counsel did not provide reasonable assistance or comply with Rule

651(c). See Ross, 2015 IL App (3d) 130077, ¶¶ 16-20 (holding that postconviction counsel did not

adequately present the defendant’s ineffective assistance claim where postconviction counsel

failed to attach an affidavit or any evidence establishing prejudice to the amended petition). While

the dissent focuses on the merits of the defendant’s ineffective assistance of counsel claim, as

stated above (supra ¶ 13) our supreme court has explicitly said that our review of counsel’s

compliance with Rule 651(c) does not depend on whether the defendant’s underlying claim had

merit, and the defendant need not show that he was prejudiced by counsel’s noncompliance. Ross,

2015 IL App (3d) 130077, ¶ 15; Suarez, 224 Ill. 2d at 47, 51.

¶ 17 The State argues that postconviction counsel provided reasonable assistance and satisfied

Rule 651(c) because the aforementioned affidavit would have been redundant to the amended

petition’s allegations. We disagree. First, the amended petition did not specifically state that the

defendant would not have pled guilty had he known he could file a motion to suppress his

confession. Second, the Act requires that the petition have evidence, such as an affidavit, attached

to the petition to support the allegations. 725 ILCS 5/122-2 (West 2016). The allegations

themselves are not evidence. To state that supporting evidence is redundant if it reiterates the

allegations in the petition would render all supporting evidence superfluous as, by its very nature,

it corroborates the allegations.

6 ¶ 18 Because postconviction counsel provided unreasonable assistance by failing to adequately

amend the petition, we reverse the court’s dismissal and remand the cause with directions to

appoint new postconviction counsel and conduct de novo second-stage proceedings. See Nitz, 2011

IL App (2d) 100031, ¶ 19.

¶ 19 III. CONCLUSION

¶ 20 The judgment of the circuit court of Kankakee County is reversed and remanded with

directions.

¶ 21 Reversed and remanded with directions.

¶ 22 JUSTICE SCHMIDT, dissenting:

¶ 22 The majority focuses on whether postconviction counsel provided reasonable assistance.

Given that defendant cannot establish prejudice in his underlying claim, any allegation of

unreasonable assistance of postconviction counsel is immaterial. See People v. Greer, 212 Ill. 2d

192, 205 (2004) (noting Rule 651(c) does not require amendments to a pro se postconviction

petition that would only advance frivolous or patently nonmeritorious claims).

¶ 23 Without referring to the lack of an affidavit or any defects in defendant’s amended

pleading, the circuit court read from the guilty plea transcript and described the evidence defendant

would face if he were to proceed to trial. The court then correctly cut straight to the heart of

defendant’s ineffective assistance of counsel claim and found that even absent defendant’s

confession to detectives, he was unable to establish prejudice due to the remaining evidence.

¶ 24 Our supreme court has separated claims of ineffective assistance of counsel resulting in a

guilty plea into two categories. See People v. Brown, 2017 IL 121681, ¶¶ 34, 35. Defendant’s case

falls within the category requiring “a showing that a defendant would be ‘better off going to trial’

absent his counsel’s deficient performance by establishing that he would have been acquitted or

7 had a viable defense.” Id. ¶ 34 (quoting Lee v. U.S., 582 U.S. ___, 137 S. Ct. 1958, 1965 (2017));

see also People v. Hall, 217 Ill. 2d 324, 336 (2005) (citing People v. Pugh, 157 Ill. 2d 1, 15 (1993),

citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (“whether counsel’s deficient representation

caused the defendant to plead guilty depends in large part on predicting whether the defendant

likely would have been successful at trial”).

¶ 25 As the lower court pointed out in its initial ruling, it is highly unlikely defendant would

have been successful at trial. The suppression of defendant’s confession would not have placed

him in a significantly better position. The factual basis of the plea did not hinge on defendant’s

confession to detectives. Supra ¶¶ 4-7. Further, the confession while in custody was not

defendant’s only admission of guilt. He confessed to his girlfriend that he killed Maiden.

¶ 26 The bare allegation that defendant would not have pled guilty whether in an affidavit, the

amended pleading, or both remains insufficient. Brown, 2017 IL 121681, ¶ 47 (quoting Valdez,

2016 IL 119860, ¶ 29, citing People v. Hughes, 2012 IL 112817, ¶ 64 and Hall, 217 Ill. 2d at 335)).

Under the circumstances, defendant cannot show that even if his confession while in custody was

suppressed, there is a reasonable probability he would have forgone a plea deal that guaranteed

him the minimum sentence for first degree murder. Supra ¶ 15 (citing Ross, 2015 IL App (3d)

130077, ¶ 14).

¶ 27 We should affirm.