2021 IL App (1st) 190566-U SIXTH DIVISION December 30, 2021
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 DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 20601 ) ELBERT GASTON, ) Honorable ) Angela Munari Petrone, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Harris and Johnson concurred in the judgment.
ORDER
¶1 Held: The court did not err in dismissing ’s postconviction petition at the second stage.
¶ 2 Elbert Gaston appeals from the second stage dismissal of his petition for relief under thePost-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He argues that he made
a substantial showing that appellate counsel was ineffective for failing to argue that findings
made by the trial court demonstrated judicial bias. He also argues that postconviction counsel
failed to comply with Supreme Court Rule 651(c). For the following reasons, we affirm 1-19-0566
the judgment of the circuit court.
¶ 3 Following a 2012 bench trial, petitioner was convicted of attempted aggravated criminal
sexual assault and sentenced, as a Class X offender, to 15 years’ imprisonment. We affirmed
petitioner’s conviction on direct appeal. See People v. Gaston, 2014 IL App (1st) 123387-U. The
relevant evidence is summarized here.
¶4 Petitioner was charged, in pertinent part, with attempted aggravated criminal sexual assault
of R.C., stemming from an incident that occurred during the late evening hours of September 30,
2011, into the early morning hours of October 1, 2011. The record shows that, prior to trial, on
April 2, 2012, the State informed the court that the parties “are trying to seeif we can work this
out. If not, on the next court date I’ll be filing a motion for proof of other crimes.” Over three
months later, the State indicated, “there was a preliminary offer tendered andfor the record, it is
now revoked.”
¶ 6 At trial, R.C. testified that petitioner was the biological father of three of her four children,
and that, at the time of trial, she and petitioner were working on repairing their relationship. With
regard to the events of the evening in question, R.C. testified that, after petitioner had agreed to
have sex with her, they met each other at a gas station near 63rd and State Streets. R.C. was
intoxicated before she arrived at the gas station and willingly entered petitioner’s vehicle where
they started drinking alcohol. When the two were about to have sex inthe car, petitioner received
a phone call from another woman. Petitioner then indicated that he was ready to leave. R.C.
became angry and stabbed him in the face and arm with a knife. The two then started fighting
and exited the car. Petitioner punched R.C. in the face and they continued fighting until the police
arrived at the station, at which time petitioner left the scene.
¶7 R.C. stated that, when the police approached her, she did not have her shirt on because
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she voluntarily took it off while she was in the car with petitioner. R.C. acknowledged
that the bruises and injuries she sustained on her face and body were due to the altercation
she had with petitioner. After the police left the scene, R.C. drove away in petitioner’s
vehicle and set it on fire.
¶ 8 R.C. acknowledged that she told the responding officer a different story about what happened
on the night in question. In particular, R.C. told the responding officer that petitioner shoved her
into the passenger seat of his vehicle, threatened to kill her, and stated that he was going to have
sex with her. R.C. denied later telling Detective Timothy Earls that petitioner forced her into his
vehicle, and that she refused his sexual advances which culminated in petitioner hitting her in the
face and body. R.C. further indicated that she complied with the Assistant State’s Attorney (ASA)
Holly Kremin’s request to sign certain documents, but that shedid not read the documents.
¶ 9 On cross-examination, R.C. testified that petitioner did not force her into his car and thatshe
willingly removed her shirt. She acknowledged that on December 15, 2011, she submitted an
affidavit to the State essentially recanting her prior written statement, implicating petitioner.
Defense counsel introduced the affidavit into evidence. In the affidavit, R.C. attested that the
events that unfolded on the evening in question were the result of an argument between her and
petitioner that went too far. She averred that they were both drunk at the time of the incident,and
that petitioner never attempted to sexually assault her on October 1, 2011, or any other day that
they were together.
¶ 10 Officer Todd Partyka testified that, on the evening in question, he was on routine patrol with
Officer Bochenek when, around 1 a.m., he received a call that a battery was in progress at agas
station. As Partyka approached the gas station in his squad car, he observed two individuals,
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one of whom was on the ground and the other, who was wearing a white shirt, standing above
the individual on the ground and making a stomping motion. When he exited his squad car,
Partyka saw the individual who was wearing the white shirt flee the scene. Partyka identified the
individual as a male, and he and Bochenek pursued him, but did not detain him.
¶ 11 Officer Bochenek testified similarly to Officer Partyka. She also testified that she observed
a woman, later identified as R.C., who was naked from the waist up, bent over on the ground,
and an African American man holding her from behind. The man was beating her in thehead.
Both Bochenek and Partyka chased the man but failed to catch him. After the chase, Bochenek
returned to the gas station and interviewed R.C. During the interview, R.C. stated thather ex-
boyfriend, petitioner, caused her injuries. Bochenek did not smell alcohol on R.C. and shedid not
appear drunk.
¶ 12 ASA Kremin testified that on November 25, 2011, she and Detective Earls met with R.C. and
took her written statement regarding the events of the evening in question. R.C.’s statement, which
Kremin read aloud, was published at trial.
¶ 13 According to the statement, R.C. broke up with petitioner because he beat her with a crowbar
in November of 2010. On the evening of September 30, 2011, R.C. agreed to meet petitioner at
a gas station because he said he had clothes for their children. At the gas station, petitioner
dragged her by her hair into his vehicle. There, petitioner told R.C. that, because she must be
having sex with her new boyfriend, she was going to have sex with him. Petitioner thenripped
R.C.’s shirt off and tried to unbutton her pants. R.C. stated that she believed petitioner was going
to rape her, so she kicked him. When she did so, petitioner stumbled out of thecar. R.C.
attempted to escape, but petitioner grabbed her, punched her in the face and stomped on her head
with his feet. Petitioner also threatened to “put a bullet in her head.” Petitioner
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continued to beat R.C. until a gas station security guard approached them and told petitioner to
stop. Petitioner told the security guard that it was none of his business and continued to beat R.C.
Several minutes later, police arrived at the gas station and petitioner fled. When police arrived,
R.C. was naked from the waist up, and had bruises on her face, head, and body. R.C. indicated
that she was not under the influence of drugs or alcohol.
¶ 14 Detective Timothy Earls testified similarly to ASA Kremin. He also testified that he spoke
to R.C. before Kremin took her statement, and that R.C.’s statement to him regarding the incident
was consistent with her subsequent written statement.
¶ 15 Thomas Rudolph testified for the defense that he was working at the gas station in question
on the evening of September 30, 2011. Rudolph stated that he first became aware of the incident
after police arrived at the gas station. He denied that he saw a man and a woman outside of the
station, and that he told the man to leave the woman alone. On cross-examination, Rudolph
testified that he knew petitioner by his nickname “Fudge.”
¶ 16 In finding petitioner guilty of attempted aggravated criminal sexual assault, the trial court
stated:
“In a case like this you kind of think back, what ever [sic] happened to the good old days;
bring the girl candy, flowers, have a glass of wine, go out for dinner someplace, that’s
how I thought things used to be. Sex in a gas station, doesn’t quite seem something that
a person would want to do necessarily and someone trying to force someone to have sex
is not necessarily totally a sexual encounter, its sometimes to show the person, I want
something, you’ve got it, I’ll take it. It’s a show of force basically. It’s not like the candy
and flowers and out for a glass of wine type of thing.”
¶ 17 The court acknowledged that R.C. was a reluctant witness who wanted to forgive 5 1-19-0566
petitioner for his actions. In discussing the events as R.C. described them in her statement to the
State’s attorney, “before her so-called recantation,” the trial court commented: “That hardly
sounds to me like a romantic interlude, pulling off her blouse, pulling off her bra, trying to
unbuckle her pants or whatever, pull her pants down or unbuckle them at least, and laying on top
of her in a van in a gas station.” The court found that R.C.’s affidavit and testimony “mean[t]
nothing whatsoever,” and was simply an attempt by R.C. to help petitioner and mend their
troubled relationship. The court further found that the credible evidence it heard did not come
from R.C., but rather from the witnesses, who arrived at the scene, saw the events unfold, and
heard what R.C. said.
¶ 18 At sentencing, the State introduced certified copies of petitioner’s two prior convictions,
which rendered him subject to sentencing as a Class X offender. The trial court sentenced
petitioner to 15 years’ imprisonment and awarded petitioner 318 days of presentence custody
credit.
¶ 19 On direct appeal, petitioner contended that the State failed to prove him guilty beyond a
reasonable doubt of the aggravated criminal sexual assault of R.C. because the evidence presented
came exclusively from R.C.’s prior statement, which she disavowed in an affidavit and on the
stand. Petitioner also argued that her original statement to police was uncorroborated. In affirming
petitioner’s conviction, this court declined to substitute its judgment for that of the trialcourt on
matters of credibility and found that “R.C.’s original statement, especially when combined with
the testimony of the police officers, was sufficient to sustain petitioner’s conviction for attempted
aggravated criminal sexual assault.” Gaston, 2014 IL App (1st) 123387-U, ¶ 19.
¶ 20 On July 29, 2014, petitioner filed the instant pro se petition for postconviction relief,
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alleging that: he was denied his constitutional right to a fair trial because the trial court engaged
in extrajudicial findings; he received ineffective assistance of appellate counsel based on
counsel’s failure to raise the issue of the trial court’s extrajudicial findings on direct appeal;
received ineffective assistance of trial counsel related to petitioner’s decision not to testify and
counsel’s advice during plea negotiations; and he was actually innocent of the attempted
aggravated criminal sexual assault based on R.C.’s affidavit.
¶ 21 To support his allegation of ineffective assistance of counsel during plea negotiations,
petitioner attached an affidavit attesting that:
“Also, prior to trial, my attorney advised me not to accept the 7-year plea offer
because [R.C.] signed an affidavit, so there was no way the judge could convict me of
attempted sexual assault.
[Defense counsel] even led me to believe that if I were to accept the State’s plea
offer, I would have to serve 85 percent of my prison sentence. Had I known that I wouldonly
have to serve 50 percent of that 7-year sentence I would have been more vocal in regards to
accepting the State’s offer.
Even though I wanted to consider accepting the plea my attorney advised me not
to accept the State’s plea offer because [R.C.] was the only person who could convict me.
So my attorney protested against the plea.
That my attorney misled me to believe that I was facing 4-to-15 years in prison
when in reality I was actually facing 6-to-30 years in prison. But, because I was not
properly admonished by the judge and my attorney misled me regarding the maximum
sentence range, I further rejected the State’s offer of 7-years.” (Internal paragraph
numbering omitted.)
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¶ 22 Petitioner’s postconviction petition was assigned to the judge who presided over his trial.
Before the court ruled on his petition, petitioner filed a motion for substitution of judge. In the
motion, petitioner argued that, because his postconviction petition alleged that the trial judge made
extrajudicial findings during the pendency of his trial, the judge was an adverse party and could
not render an impartial ruling on his postconviction petition. A different circuit court judgedenied
petitioner’s motion for substitution after finding that petitioner did not show that the judge, who
presided over his trial, was prejudiced against him.
¶ 23 On October 17, 2014, the circuit court issued a written order dismissing petitioner’s pro
se postconviction petition as frivolous and patently without merit. In the order, the court found
that petitioner’s claim regarding extrajudicial findings lacked merit because the “comments
referred to by [petitioner] are comments by the court made after hearing all the evidence, as to
the courts [sic] findings of fact and reasonable inferences based on the evidence.” The court also
noted that petitioner’s allegation of judicial prejudice was set forth in his motion for substitution
of judge, which was denied. Because the court found that his claim relating to the extrajudicial
findings lacked merit, the court concluded that his claim of ineffective assistance of appellate
counsel, based on counsel’s failure to raise this issue, was also meritless. The circuit court also
found “no support in the record” for petitioner’s claim that he received ineffective assistance of
trail counsel during guilty plea negotiations. In reaching this conclusion, the court noted that
petitioner’s “claims are belied by the record,” where, according to the court, the only mention of
a potential plea offer occurred on April 2, 2012, when the State indicated that the parties were
“trying to see if [they] [could] work this out.” Petitioner appealed.
¶ 24 On appeal from the dismissal of his postconviction petition, petitioner argued that the
trial court erred in dismissing his petition because he presented an arguable claim of ineffective
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assistance of counsel during plea negotiations, and because he presented an arguable claim of
ineffective assistance of appellate counsel based on his appellate counsel’s failure to argue that
he was denied a fair trial because the trial court engaged in extrajudicial findings. The State
conceded that the trial court erred in summarily dismissing petitioner’s postconviction petition
because petitioner had presented an arguable claim of ineffective assistance of trial counsel
during plea proceedings, but the State did not concede that appellate counsel was ineffective for
failing to argue that the trial court engaged in extrajudicial findings. This Court agreed that
petitioner presented an arguable claim of ineffective assistance of trial counsel during plea
negotiations and remanded the case for second stage postconviction proceedings. People v.
Gaston, 2017 IL App (1st) 143631-U. Because the State conceded that the case needed to be
remanded on the first issue, this Court did not address petitioner’s claim of error regarding the
ineffectiveness of his appellate counsel. We also granted petitioner’s request that the matter be
reassigned to a different judge on remand.
¶ 25 On November 21, 2017, the case was assigned to Judge Petrone. Petitioner’s
postconviction counsel filed an appearance on behalf of petitioner on January 22, 2018. On January
29, 2018, postconviction counsel appeared before the trial court but the court did not have the file
and the case was continued. On March 7, 2018, the trial court again did not have its file and the
case was continued. On March 14, 2018, the trial court found the file and told postconviction
counsel that it would make a copy of everything that was in the file for him by thenext court date
on March 21, 2018. The postconviction common law record does not contain a court sheet for
March 21, 2018, and the postconviction record does not contain a transcript for that date either. A
review of the Events and Orders of the Court section of 11CR2060101 on the Clerk of the Circuit
Court of Cook County’s website,
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https://cccportal.cookcountyclerkofcourt.org/CCCPortal, shows that on March 21, 2018, the case
was continued to March 27, 2018.
¶26 On March 27, 2018, the trial court stated on the record that it had the file and continued
the case until April 20, 2018. The case was called on April 13, 2018, and the trial court wrote on
the court sheet “missing file again” and the case was continued to May 3, 2018. Although the
postconviction common law record does not contain a court sheet for April 20, 2018, nor for May
3, 2018, and the postconviction record does not contain a transcript for those dates either, under
the Events and Orders of the Court section of 11CR2060101 on the Clerk of the Circuit Court of
Cook County’s website, https://cccportal.cookcountyclerkofcourt.org/CCCPortal, it shows that
on April 20, 2018 the case was continued to May 3, 2018, and on May 3, 2018, the case was
continued until May 21, 2018.
¶27 On May 21, 2018, postconviction counsel stated he had already filed his 651(c)
certification with the clerk’s office, but because the court did not have its file, he tendered a copy
of his 651(c) certification, dated May 15, 2018, to the court. The court then made a duplicate file
so the case could move along. Postconviction counsel requested the date of June 20, 2018, but the
trial court wrote June 15, 2018, on the court sheet. On June 15, 2018, the case was continued until
July 20, 2018.
¶28 On July 2, 2018, the State filed a motion to dismiss ’s postconviction petition. Argument
was heard on the motion on December 5, 2018. Before making his argument, postconviction
counsel stated, “Judge, let me just briefly state that the in this case a very detailed pro se petition
was filed which we’ve adopted.” The case was continued until January 16, 2019, where further
arguments on the petition were heard. The trial court ultimately dismissed the postconviction
petition at the second stage, finding: 1) that petitioner’s trial counsel was not ineffective, 2) that
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his appellate counsel was not ineffective for failing to raise the issue of ineffective assistance of
trial counsel, 3) that petitioner’s claim that the trial evidence was insufficient to prove him guilty
beyond a reasonable doubt was res judicata, 4) that his claim that he is actually innocent based on
newly discovered evidence of two witnesses fails because petitioner did not include affidavitsfrom
those witnesses, 5) that his claim that the trial court engaged in extrajudicial findings was res
judicata because it was already raised on appeal, and 6) that the affidavit from R.C. was not new
evidence that showed he was actually innocent because R.C. had already recanted at trial and was
cross examined. Petitioner has appealed from this judgment.
¶ 29 ANALYSIS
¶ 30 Petitioner first argues that his postconviction petition should not have been dismissed at
the second stage because he “made a substantial showing that appellate counsel was ineffective
for failing to argue that findings made by the trial court demonstrated judicial bias.” Specifically,
petitioner claims that the trial court “interjected and considered its own opinions about romantic,
sexual encounters during the finding of guilt, and specifically considered this improper evidence
in regard to [R.C.’s] testimony about her sexual encounter with Gaston” in finding him guilty.
¶ 31 The Act provides a three-stage method for petitioners to “assert that their convictions were
the result of a substantial denial of their rights under the United States Constitution or the Illinois
Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9-10 (2009). Petitioner's petition was
dismissed at the second stage of proceedings, in which counsel is appointed to represent the
petitioner if necessary, and the State is permitted to file responsive pleadings. People v. Edwards,
197 Ill. 2d 239, 245-46 (2001). At the second stage of postconviction proceedings, “the circuit
court must determine whether the petition and any accompanying documentation make a
substantial showing of a constitutional violation.” Id. at 246. “[A]ll well-pleaded facts that are
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not positively rebutted by the trial record are to be taken as true.” People v. Pendleton, 223 Ill. 2d
458, 473 (2006). The second stage of postconviction review tests the legal sufficiency of the
petition. People v. Domagala, 2013 IL 113688, ¶ 35.
¶ 32 “The inquiry into whether a post-conviction petition contains sufficient allegations of
constitutional deprivations does not require the circuit court to engage in any fact-finding or
credibility determinations,” as such determinations are made during the evidentiary third stage of
postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 385 (1998). “An evidentiary
hearing is only required when the allegations of the petition, supported by the trial record and
accompanying affidavits, make a substantial showing of a violation of a constitutional right.”
People v. Flowers, 2015 IL App (1st) 113259, ¶ 31. In reviewing the second-stage dismissal of a
postconviction petition, this court generally reviews de novo the circuit court's decision.
Pendleton, 223 Ill. 2d at 473.
¶ 33 To prevail on a claim of ineffective assistance of appellate counsel under Strickland v.
Washington, 466 U.S. 668 (1984), a petitioner must allege facts showing that failure to raise an
issue on appeal was objectively unreasonable and that counsel's decision prejudiced petitioner.
People v. Enis, 194 Ill. 2d 361, 377 (2000). Unless the underlying issue has merit, a petitioner
cannot be considered to have suffered prejudice from appellate counsel's failure to brief that
issue. People v. Childress, 191 Ill.2d 168, 175 (2000).
¶ 34 The underlying issue here has no merit and therefore petitioner suffered no prejudice. The
trial court, as the trier of fact, is presumed to know the law and to have considered only competent
evidence in determining the case on the merits. People v. Koch, 248 Ill. App .3d 584 (1993). To
rebut this presumption, the record must affirmatively show that the trial court actuallyused the
evidence improperly as alleged. Id.
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¶ 35 Due process does not permit [a trial judge] to go outside the record, except for matters of
which a court may take judicial notice or conduct a private investigation in a search for aids to
help him make up his mind about the sufficiency of the evidence.” People v. Yarbrough, 93 Ill.
2d 421, 429 (1982). “A trial judge does not operate in a bubble; [he] may take into account [his]
own life and experience in ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963
(2007). Reversal is only necessary when a trial court's reliance on matters outside the record is
prejudicial to one of the parties. People v. Banks, 102 Ill. App. 3d 877, 882 (1981). As such,
“[r]eliance on information found [outside] the record is not reversible error where there is no
evidence that it either misled or entered into the trial court's determination.” Id. A trial court will
be accorded every presumption it considered only admissible evidence in reaching a conclusion.
People v. Wallenberg, 24 Ill. 2d 350 (1962). “This assumption will be overcome only if the record
affirmatively demonstrates the contrary, as where it is established that the court's finding rests on
a private investigation of the evidence, or on other private knowledge about the facts in the case.”
People v. Tye, 141 Ill. 2d 1, 26 (1990).
¶ 36 In announcing the verdict, the trial court commented:
“In a case like this you kind of think back, what ever happened to the good
old days; bring the girl candy, flowers, have a glass of wine, go out for dinner
someplace, that’s how I thought things used to be. Sex in a van in a gas station,
doesn’t quite seem something that a person would want to do necessarily and
someone trying to force someone to have sex is not necessarily totally a sexual
encounter, it’s sometimes to show the person, Iwant something, you’ve got it,
I’ll take it. It’s a show of force basically. It’s not like the candy and flowers and
out for a glass of wine type thing.
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And also, I point out, this is not a case [R.C.] versus Elbert Gaston, it’s not
a civil case where the victim comes in and says; ah, forget about it, I don’t want
to bother with this anymore. This is a criminal case, People versus Elbert Gaston.
[R.C] is merely a witness in this case; albeit, a reluctant witness in this case.
Apparently she’s trying to get a degree or whatever, working on a degree
or something in criminal justice, that seems rather odd looking at the
circumstances of this case. I always thought criminal justice meant if the State
proves the charges beyond a reasonable doubt, the person is found guilty by a
judge or jury, that’s justice. The State charged the man, Judge, jury said, not
convinced beyond a reasonable doubt, the petitioneris discharged, that’s justice.
It doesn’t seem like it’s justice when someone who’s a victim of a crime,
has to be recorded on paper somewhere to establish they were a victim of a crime.
That’s basically one of the reasons you have 115-10.1, for a witness like[R.C.].
A recanting witness, who after a period of time goes by, she’s willing toforgive
and forget. Bad things happened to me on October 1, 2011, even a little before
that, however time has gone by, I went to see him in the jail, communicated with
each other, he’s the father of three of my four children; ah, I’m willing to forgive
and forget at this point.
However, it’s not [R.C] versus Elbert Gaston, it’s the charge brought by
the State; the State proves the charges to, at least in part, to deter othersfrom
committing crimes like this. The fact that she’s willing to forgive andforget,
that’s up to her, I’m not concerned with her forgiving and forgetting.
This was hardly a match made in heaven between Elbert Gaston and
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[R.C.]. They were together for a long time, from 1999, they had three children
together, pretty much little ones, at least the last one or two were little ones. And
things got a little rocky on occasion between Elbert Gaston and [R.C.].
And on various occasions she would take him back. She admits that on
one occasion, although she says it was a lie, for some nonsensical reason it was
a lie, that he hit her with a tire iron at some point, it’s in the testimony, she
admitted telling the police that, she said it didn’t happen, but told the police that’s
what occurred. And yet, after the incident, had (sic) they’re back together and
things go on and it comes to the evening we’re talking about where there is a lot
of calls and ultimately she agrees I’ll meet you some place so he can drop off
some stuff for three of the four kids, he had (sic) she had three kids with him.
The statement of the State’s attorney, I don’t want to meet him some
place privately, I’ll meet him in a public place, in a gas station. One wouldhardly
expect in a public gas station at night some guy is going to do something bad to
a person like [R.C.].
When they get there, she says basically she got up to the van, they’re
having a few beers, there is some other liquor of some sort or another and they
start the touchy-feely stuff, according to her. And sort of to entice his interest,
he takes off her blouse and her brassiere, and she’s there in thevan naked from
the waist up trying to entice Elbert Gaston.
Her statement to the State’s attorney in November of 2011 before her
affidavit, before her so-called recantation then, is when they got to the -- she met
him at the gas station, however she got there somehow or another,and at some
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point he says to her, I hear you got a boyfriend or something now, I know you’re
having sex with him, so therefore you’re going tohave sex with me. Elbert
Gaston knows what he likes, he’s a man that won’t take no for an answer. You
have another boyfriend now, you’re having sex with him, well, have sex with
me.
And then she has to get the man off of her somehow or another, otherwise
there would have been a completed rape at that point in the car. It’s rather bold
in a public place in a gas station somebody could walk by, somebody could drive
by, somebody could walk around the car, somebodywho worked in the gas
station. But Elbert is a man who knows what he likes and what he likes is he
wants to have sex with this woman, he had sex with her before, they have three
children together.
And she kicks him and he basically sort of falls out or stumbles back out
of the car and it’s still not over with at that point. We have the effortby him to
pull her by the hair and he knocks her down.
The testimony of the police officer who first gets there, they get there
together but the one that testified first, the male officer, sees a man with a white
T-shirt, he can’t identify Gaston being that person, but he identifies a male with
a white T-shirt who appears to be kicking at the person on the ground.And the
person owing is [R.C.]. I don’t think anybody identified her at that point, but
circumstantially we know it’s the same person.
At some point the police come back and she’s there, by that time I think
someone gave her something to put on other that standing there naked from the 16 1-19-0566
waist up in a public gas station at night. The photograph shows you can see she
was clearly pummeled a number of times and stomped. The physical injuries
shown to [R.C.] show or corroborate what she said in her statement as to what
occurred between she and her former boyfriend, whatever you want to call him,
former boyfriend children’s [father], whatever you want to call Elbert to her.
And here the cases kind of always amazes you to some extent, I would
almost be willing to bet, it’s not that it’s part of my findings at all, if he walked
out of here today, he’d be in her house tonight. She’d take him back glowingly.
As she said when she testified, we’re trying to workthings out, after all that.
Her affidavit means nothing whatsoever, it’s an attempt by her to help
out Elbert Gaston. And after all, he’s the father of three of her children. At this
point she wants to forgive and forget. Bad things happened that night but ah, it’s
all right, we’ll work it out. Maybe they will work it out at somepoint or another.
Although, as I said before, it’s not exactly a match made in heaven, but
if she wants him back and he wants her back, they probably deserve each other.
The credible evidence is not necessarily the evidence I heard from [R.C.].
I heard from witnesses who came to the scene and saw what they saw and heard
what [R.C.] said. That’s why we have 115-10.1, for witnesses just like [R.C.]
who are willing to forgive and forget and recant and say nothing happened.
It’s sort of a sad commentary on the criminal justice system that you
have to have victims put under oath or give statements to show they are actually
victims, because actually after a while, they sort of lose interest, don’t care
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anymore, willing to forgive and forget. But whether she wants to forgive and
forget Elbert Gaston and what happened to her that late evening, early morning,
that’s between her and Elbert Gaston. When you do bad things, there are bad
consequences.
I guess I should feel sad for calling [R.C.] a liar in some respects, but
if that’s how she takes it, that’s how she takes it.
I find the petitioner guilty on Count No. 1, attempt aggravated criminal
assault, Count 2 merges. I’m not going to worry about kidnapping and unlawful
restraint. There’s a finding of guilty on Count 1, Count 2 merges. And the
unlawful restraint and the kidnapping are basically part of what caused or
allowed the attempt sexual criminal assault to take place. Guilty on Count 1,
Count 2 merges and Count 3 and 4 are not guilty because they really make no
difference to the case whatsoever.”
¶ 37 Petitioner argues that these statements show the trial court improperly considered evidence
not in the record, and therefore the presumption that it considered only competent evidence was
rebutted. In support of his argument, petitioner cites People v. Wallenberg, 24 Ill.2d 350 (1962).
In Wallenberg, a witness testified he travelled down a stretch of streets lookingfor a gas station to
fix his tire but did not find one. In pronouncing its judgment, the trial court remarked that, although
the witness stated that he found no gas stations along that stretch,
“ ‘I happen to know different. I don't believe his story.’ ” Id. at 354. However, no evidence
contradicting the witness's testimony was in the record. Id. The Wallenberg court ruled that the
trial court improperly made a determination based upon its private knowledge instead of on the
record before it, and therefore the presumption that the trial court considered only admissible
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evidence was rebutted. Id.
¶ 38 Unlike Wallenberg, the court here did not make determinations that contradicted the
undisputed testimony in the record. Rather, the trial court was merely discussing the evidence and
making credibility determinations based on knowledge and experience. The trier of fact is entitled
to use their knowledge and observations in life when considering the evidence presented. Thomas,
377 Ill. App. 3d at 963. We find that the trial court committed no error in making thesestatements
and therefore, appellate counsel was not ineffective for failing to raise this issue.
¶ 39 Petitioner next argues that postconviction counsel failed to comply with Supreme Court
Rule 651(c). Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Petitioner argues that postconviction counsel
failed to make an amendment to the petition that was necessary for an adequate presentation of
his claim. Petitioner also argues that at the hearing on the motion to dismiss, post-conviction
counsel argued that trial counsel did not know about the complaining witness’ recantation, when
in fact, the recantation was the central issue at trial. Petitioner claims that thisshows that counsel
did not read the record.
¶ 40 There is no constitutional right to the assistance of counsel during post-conviction
proceedings. People v. Custer, 2019 IL 123339, ¶ 30. As a matter of legislative grace, however,
the Act provides a right to a “reasonable level” of assistance. Id. A “reasonable level *** is
significantly lower than the one mandated at trial by our state and federal constitutions.” (Internal
quotation marks omitted.) Id.
¶ 41 To guarantee a reasonable level of assistance, post-conviction counsel must (1) consult
with the petitioner to ascertain his contentions; (2) examine the record of the trial proceedings;
and (3) make amendments to the pro se petition necessary for an adequate presentation of the
petitioner's contentions. Id.; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Substantial
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compliance with the rule is sufficient. People v. Collins, 2021 IL App (1st) 170597.
¶ 42 When postconviction counsel files a certificate attesting that they have performed the
duties required by Rule 651(c), the certificate creates a rebuttable presumption counsel provided
the reasonable level of assistance the Act guarantees. Id. ¶ 31. The petitioner then bears the burden
of overcoming that presumption by demonstrating counsel failed to substantially complywith the
rule. Id. We review de novo whether counsel substantially complied with Rule 651(c). Id.
¶ 43 In this case, postconviction counsel filed a 651(c) certificate that stated the following:
“The undersigned, on oath, as the attorney in this matter and pursuant to Illinois
Supreme Court Rule 651 (c) has consulted with by phone, mail, electronic means or in
person to ascertain his contentions of deprivation of constitutional rights, has examined
the record of the proceedings at the trial and sentencing and reviewed the original court
file. Counsel has conducted a diligent investigation into this matter and he verily believes
the facts and circumstances support the filing of this Petition and the statements in said
Petition are true in substance and in fact.”
¶ 44 Although postconviction counsel did not specifically state in the 651(c) certificate that he
“made any amendments to the petitions filed pro se that are necessary for an adequate presentation
of petitioner’s contentions,” the record affirmatively establishes that postconviction counsel
reviewed the petition and determined that no amendments were necessary. At the December 5,
2018, hearing, postconviction counsel stated, “Judge, let me just briefly state that the petitioner in
this case filed a very detailed pro se petition which we’ve adopted.” Thereafter, on January 16,
2019, postconviction counsel stated, “the Court’s determination to docket this matter and advance
it to the second stage was based on a review of the petition that was filed pro
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se by Mr. Gaston which I adopted wholly once I filed my appearance.” Postconviction counsel’s
comments to the court regarding petitioner’s pro se petition clearly show that he reviewed the
petition but determined that no amendments were necessary. There is no requirement that
postconviction counsel must amend a 's pro se post-conviction petition. People v. Spreitzer, 143
Ill. 2d 210, 221 (1991). Rule 651(c) plainly requires that appointed post-conviction counsel make
“any amendments to the petitions filed pro se that are necessary for an adequate presentation of
petitioner's contentions.” 134 Ill. 2d R. 651(c).
¶ 45 In a similar vein, petitioner argues that postconviction counsel failed to shape his actual
innocence claim into an ineffective assistance of trial counsel claim for failing to investigate and
call two additional witnesses, Palmer and Jackson. Palmer and Jackson provided affidavits, which
petitioner appended to his petition, stating that they knew R.C. and knew that R.C. lied about
being raped by petitioner.
¶ 46 Postconviction counsel’s failure to amend petitioner’s petition to include the claim of
ineffective assistance of counsel for failing to investigate and call Palmer and Jackson did not
prejudice petitioner in any way. The claim would have failed because it is meritless and had
postconviction counsel included this claim, it would have been dismissed. If Palmer and Jackson
had been discovered by trial counsel and were called to testify to the matters they averred to in
their affidavits, their testimony would have amounted to inadmissible hearsay. Everything they
allegedly learned about the night in question, they learned from R.C. In any event, postconviction
counsel is not required to amend a petitioner’s petition. Spreitzer, 143 Ill. 2d at 221.
¶ 47 We likewise reject petitioner’s claim that counsel did not comply with Rule 651(c)
because he did not read the record or the court file. As stated, postconviction counsel averred
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that he “examined the record of the proceedings at the trial and sentencing and reviewed the
original court file.” Petitioner specifically points to a comment postconviction counsel made
during a hearing on the State’s motion to dismiss the postconviction petition: “While she was of
course known to the petitioner and his attorney at the time of the trial, her recantation was not.”
Petitioner argues that because R.C. had recanted in an affidavit prior to testifying, and also
recanted during her in-court testimony, postconviction counsel must not have reviewed the
record.
¶ 48 Petitioner takes postconviction counsel’s statement out of context. Counsel’s entire
argument to the court was:
“I think the only two matters with which I believe it's important to make a record of and
draw your Honor's attention to are that there is in fact an assertion of actual innocence in
this case. Supported by the attached affidavit of the original complaining witness and
alleged victim in this case. While she was of course known to the petitioner and his
attorney at the time of the trial, her recantation was not.”
¶ 49 The recantation that counsel is referring to, is the very detailed and specific, 12-paragraph
affidavit by R.C. that petitioner attached to his postconviction petition in support of his actual
innocence claim. R.C.’s June 16, 2014, affidavit was one of four affidavits attached to the petition
in support of his actual innocence claim. In this affidavit, R.C. provided a very detailed, written
account of what happened on the evening in question and indicated that she lied to the police when
she gave a statement to the police on October 1, 2011 and lied when she signed a statement at the
police station on November 26, 2011. This affidavit contains more information and is more
detailed than both her initial recantation affidavit dated December 15, 2011, and her trial
testimony. The mention of R.C.’s recantation in this context in no way demonstrates that
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postconviction counsel failed to read the record.
¶ 50 Lastly, we find petitioner’s claim that postconviction counsel could not have reviewed
the court file because it was lost is belied by the record. The record shows, as petitioner admits,
that the court file was located on March 14, 2018.
¶ 51 CONCLUSION
¶ 52 For the reasons stated, the judgment of the circuit court is affirmed.
¶ 53 Affirmed.