People v. Guerrero

2023 IL App (1st) 211205-U

Opinion

2023 IL App (1st) 211205-U No. 1-21-1205 Second Division March 28, 2023

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). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 14 C3 30459 v. ) ) MARVIN GUERRERO, ) Honorable ) Marc W. Martin, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment. ORDER

¶1 Held: The circuit court’s order dismissing defendant’s postconviction petition after second-stage proceedings is vacated and the cause remanded for further proceedings where postconviction counsel failed to comply with the duties set forth in Supreme Court Rule 651(c) (eff. July 1, 2017) by failing to amend the petition to include an allegation of ineffective assistance of appellate counsel.

¶2 Following a bench trial, defendant-appellant Marvin Guerrero was found guilty of two

counts of a controlled substance with intent to deliver (720 ILCS 570/401(c)(1), (c)(2) (West No. 1-21-1205

2014)), sentenced to 24 years’ imprisonment, and fined $25,000. This court affirmed on direct

appeal. People v. Guerrero, 2017 IL App (1st) 152002-U (unpublished order under Supreme Court

Rule 23). He now appeals from the second-stage dismissal of his pro se petition for postconviction

relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)).

Defendant requests that this court remand his petition for further second-stage proceedings,

arguing that he received unreasonable assistance from his appointed postconviction counsel in

violation of Illinois Supreme Court Rule 651(c) ( eff. July 1, 2017). For the reasons that follow,

we vacate the circuit court’s judgment and remand with directions for further proceedings under

the Act.

¶3 I. BACKGROUND

¶4 Following the execution of a search warrant on May 29, 2014, defendant was arrested and

charged with two counts of possession of controlled substances with the intent to deliver, namely

cocaine and heroin, and two counts of possession of controlled substances, namely tramadol and

hydromorphone. The following evidence was adduced at trial.

¶5 On May 29, 2014, around 9 p.m., Mount Prospect police detective Alison Teevan arrived

at 410 Perrie Drive, Apt. 302, in Elk Grove Village, to execute a search warrant. From about 25 to

30 feet away from the building, Detective Teevan surveilled the exterior of the west side of the

building. She observed one window on the third floor that was open with the blinds raised and the

room was lit from within. When the investigative team knocked on the door and yelled “[p]olice,”

she observed defendant in the open window and saw him throw something out of the window. She

recovered the item, which was a large prescription bottle containing 21 individually packaged

baggies that contained suspect crack cocaine, 14 tinfoil packets that contained suspect heroin and

42 various prescription pills, and a plastic bag containing a powdery substance. She testified that,

-2- No. 1-21-1205

based on her training and experience as a narcotics officer, the packaging of the items was

consistent with the sale of narcotics. When Detective Teevan entered the apartment, Ian

Denbroeder and Melissa LeBron, were being detained in the living room and defendant, his

girlfriend, Bonnie Mercado, and their infant son, were being detained in the bedroom. The police

searched a pair of shorts, which defendant identified as his, and recovered a bag of cannabis, $690,

and defendant’s state identification card. Defendant’s sister, Andra Guerrero, and 11 children were

detained in another bedroom.

¶6 Defendant was taken into custody. Detective Teevan spoke with him the following day and

he informed her that he had been living at the apartment for two weeks. He denied throwing the

drugs out of the window and claimed Denbroeder ran into the bedroom, threw the drugs out of the

window, and ran back to the living room before the police entered. A few hours later, Detective

Teevan had another conversation with defendant, during which he stated that he was only selling

drugs to provide for his family and also, he identified from whom he had obtained the crack cocaine

and heroin. On cross-examination, Detective Teevan acknowledged that she did not memorialize

defendant’s statement and admitted that the drugs could have been for personal use but it was an

excessive amount.

¶7 The parties stipulated that Nancy McDonagh, a forensic scientist with the Illinois State

Police Crime Lab, would testify that 17 of the 21 bags of suspect cocaine were tested, with a

positive result of 5.4 grams of cocaine. She would also testify that 8 of the 14 tinfoil packets were

tested, with a positive result of 1.1 grams of heroin. Further, she analyzed 35 pills that resembled

a schedule II pharmaceutical preparation containing hydromorphone and the remaining 7 pills

resembled a schedule IV pharmaceutical containing Tramadol.

¶8 The State rested, and defendant filed a motion for a directed verdict, which the court denied.

-3- No. 1-21-1205

¶9 For the defense, Mercado testified that at 9 p.m. on May 29, 2014, she, defendant, and their

baby were asleep when Denbroeder ran into the bedroom, said the police were outside, tossed

something out of the bedroom window, and ran back to the living room. Mercado stated that the

lights were off in the bedroom and the windows were open but the blinds were closed.

¶ 10 Defendant testified to substantially the same sequence of events as Mercado. Additionally,

he admitted that the police recovered cannabis, $690, and his identification card from his shorts,

despite being unemployed for a year. He explained the money was for child support owed to

Mercado. He denied telling Detective Teevan that he sold drugs to provide for his family. He

further testified that he told Detective Teevan that Denbroeder threw the drugs out of the window

and that he did not sell drugs.

¶ 11 In rebuttal, the parties stipulated that defendant had a 2008 felony conviction for

manufacture and delivery of a controlled substance.

¶ 12 The court denied defendant’s motion to reconsider the evidence or grant a new trial.

¶ 13 The court found defendant guilty of two counts of possession of a controlled substance

with intent to deliver, sentenced him to 24 years’ imprisonment, and fined him $25,000. The court

denied defendant’s motion to reconsider his sentence.

¶ 14 On direct appeal, defendant argued that he was not proven guilty beyond a reasonable

doubt, the circuit court exhibited impermissible judicial bias, and his sentence and fine were

excessive. This court affirmed his conviction and sentence and also held that there was no evidence

of judicial bias. People v. Guerrero, 2017 IL App (1st) 1152002-U. The supreme court denied

defendant’s petition for leave to appeal. People v. Guerrero, No. 122840 (Jan. 18, 2018).

¶ 15 On February 13, 2018, defendant filed an initial pro se postconviction petition, alleging:

(1) newly discovered evidence of actual innocence; (2) ineffective assistance of trial counsel; (3)

-4- No. 1-21-1205

the trial court improperly relied on a confidential informant’s statements to police in finding him

guilty; (4) the State committed a Brady violation in withholding the name of the informant and not

calling the informant as a witness at trial; and (5) prosecutorial misconduct by making improper

or misleading statements to the court and overstating the strength of the evidence.

¶ 16 In regards to his ineffective assistance of trial counsel claim, defendant specifically argued

that his trial counsel was ineffective for failing to obtain the name and statement of a confidential

informant and for failing to seek to have the informant brought to court to testify. He contends that

the informant could testify at trial that defendant was not a drug dealer. These failures, defendant

alleged, violated his sixth amendment right to effective assistance of trial counsel.

¶ 17 In support of his petition, defendant attached several documents. Defendant’s affidavit

stated that the police recovered a drug kit belonging to his roommate and his roommate was the

individual who threw the drugs out of the window. He refers to the police report that states that a

confidential informant claimed that defendant sold him drugs and contends that this informant

should have been called as a witness at trial. Because the informant was not called, defendant was

not able to cross-examine or impeach the informant. He further averred that he asked trial counsel

to conduct DNA testing of the recovered drug kit to prove his roommate’s ownership of the kit

and if the drugs matched those that were thrown out of the window, he could prove his innocence.

Finally, he stated that trial counsel also failed “to call a witness to [testify] on [his] behalf[.]”

¶ 18 Defendant also attached the police report. The report detailed the items recovered from

execution of the search warrant, including the drug kit, and further stated that a confidential

informant purchased drugs from defendant on three separate occasions. The information from the

informant formed the basis of the search warrant.

-5- No. 1-21-1205

¶ 19 On May 8, 2018, the circuit court appointed counsel and advanced the petition to second-

stage proceedings. In doing so, the court found that there was no merit to defendant’s claim that

trial counsel was ineffective for not producing the informant at trial, but nonetheless found that

defendant’s claim that trial counsel was ineffective for failing to conduct a DNA test on the

recovered drug kit was not rebutted by the record and, taking the allegation as true, the petition

should be advanced for further proceedings.

¶ 20 Because defendant challenges postconviction counsel’s assistance, we provide details from

the record regarding counsel’s efforts following her appointment.

¶ 21 The record shows that on January 18, 2019, counsel requested the common law record and

transcripts, and there were orders in the record directing those documents to be released to counsel.

Further, the record shows that counsel spoke with witnesses. On May 24, 2019, counsel informed

the court that she had spoken with defendant and also one of the witnesses relevant to defendant’s

petition. She further stated that she still needed to speak with another witness and had left a

message with him. On July 12, 2019, counsel stated that her investigator was still attempting to

contact a witness.

¶ 22 On September 13, 2019, postconviction counsel filed a certificate pursuant to Supreme

Court Rule 651(c), which stated:

“1. I have consulted with the petitioner, Marvin Guerrero[,] personally to ascertain his

contentions of deprivation of constitutional rights[.]

2. I have reviewed the appellate records I have been unable to review the trial file from

private trial attorney. But, I had a teleconference with the attorney[.]

3. I have reviewed the court file looking specifically for any and all Pre-trial Motions for

discovery and Motions for a new trial.

-6- No. 1-21-1205

[4.] I have analyzed the appellate records as well as the orders from the appellate court for

both 15-2002[.]

5. I have obtained and examined the transcript of his bench trial and sentencing in this

case[.]

[6.] I have not filed an Amended Petition for Post-Conviction Relief. The pro se successive

petition for post-conviction relief does adequately set forth the petitioner’s claims of

deprivation of his constitutional rights.”

¶ 23 On December 14, 2020, the State filed a motion to dismiss the petition. On June 11, 2021,

the court heard arguments on the motion. The State argued that no documentation was attached to

the petition to show that the informant could have been discovered by trial counsel or that the

informant would have provided exculpatory information for defendant. The State also pointed to

evidence in the record that defendant was observed dropping the drugs from the window. Finally,

the State asserted that all of defendant’s claims were based on the record and thus could have been

raised on direct appeal.

¶ 24 Following the State’s argument, postconviction counsel stated that she had asked defendant

about an alleged witness but she could not locate him. She filed a Rule 651(c) certificate because

she could not find anything to support some of defendant’s claims. She then stood on the pro se

petition.

¶ 25 On September 10, 2021, the circuit court granted the State’s motion to dismiss. In doing

so, the court dismissed the newly discovered evidence claim, stating that “[t]he matters discussed

in [defendant’s] affidavit and the police report were available to [defendant] prior to trial.” As

relevant here, in regards to defendant’s argument that his counsel should have brought the

informant to trial, the court stated the following:

-7- No. 1-21-1205

“Another situation which the State may be required to produce an informant is in

conjunction with a pre-trial motion challenging a search warrant pursuant to Franks v.

Delaware. In this context, the defendant must make a substantial preliminary showing that

the allegations in the search warrant complaint are false or were made with reckless

disregard for the truth. While not expressly argued by the petitioner, the notion that the

petitioner had a viable Franks motion is speculative and not based on anything contained

in the post-conviction submission. The petition raises nothing showing that counsel acted

unreasonably by not seeking revelation of the confidential informant through a Franks

motion. Again, the petition does not make a legally sufficient showing of prejudice. The

ineffective assistance of counsel claims in the post-conviction petition are dismissed.”

Finally, the court stated that defendant’s claims that the trial court improperly relied on an

informant’s hearsay statements “could have been raised on appeal and were not, thus they are

forfeited.”

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 On appeal, defendant solely claims that his postconviction counsel failed to provide

reasonable assistance in accordance with Illinois Supreme Court 651(c) (eff. July 1, 2017).

¶ 29 The Act provides a method for a defendant to collaterally attack a criminal conviction by

asserting it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/1221 (West

2016); People v. Hodges, 234 Ill. 2d 1, 9 (2009). However, “any issues considered by the court on

direct appeal are barred by the doctrine of res judicata, and issues which could have been

considered on direct appeal are deemed procedurally defaulted.” People v. Ligon, 239 Ill. 2d 94,

103 (2010). A postconviction proceeding in a noncapital case has three stages. Hodges, 234 Ill. 2d

-8- No. 1-21-1205

at 10. At the first stage, a trial court may summarily dismiss a postconviction petition within 90

days if it “determines the petition is frivolous or is patently without merit.” 725 ILCS 5/122-

2.1(a)(2) (West 2016).

¶ 30 At the second-stage, as here, counsel can be retained or appointed, and defendant must

show that his petition makes a substantial showing of a constitutional violation. People v. Morales,

2019 IL App (1st) 160225, ¶ 17. If the court appoints counsel, appointed counsel is required to file

a certificate showing that counsel has consulted with the defendant, examined the record of trial

proceedings, and made any necessary amendments to the petition. People v. Cotto, 2016 IL

119006, ¶ 27; Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 31 During the second-stage, the State can participate and either answer the petition or move

to dismiss. Id. “Dismissal is warranted *** where the defendant’s claims, liberally construed in

light of the trial record, fail to make a substantial showing of a constitutional violation.” People v.

Turner, 2012 IL App (2d) 100819, ¶ 21. The court examines only “the legal sufficiency of the

petition” and does not engage in “any fact-finding or credibility determinations.” (Internal

quotation marks omitted.). People v. Domagala, 2013 IL 113688, ¶ 35. A claim is said to make a

“substantial showing” if its allegation of a constitutional violation, as supported by independent,

corroborative evidence, would entitle the defendant to relief if proven at an evidentiary hearing.

Id. We review the trial court’s dismissal of a postconviction petition at the second-stage de novo.

People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 32 Defendant contends that appointed postconviction counsel’s assistance was unreasonable

because counsel “failed to amend his pro se post-conviction petition, failed to substantively

challenge the State’s motion to dismiss his petition, and failed to argue the merits of his claims

before the court.” He further contends that postconviction counsel essentially conceded the State’s

-9- No. 1-21-1205

arguments at the hearing on the motion to dismiss and failed to withdraw and allow defendant to

advance his claims on his own or through new counsel, after filing the Rule 651(c) certificate. He

requests this court remand his case to the circuit court with directions to appoint an attorney “who

will properly amend and support his petition, or fulfill the obligation to withdraw.” Notably, “[n]o

issue is raised concerning the sufficiency of the post-conviction pleadings[.]”

¶ 33 Although every criminal defendant must be afforded the effective assistance of counsel

under the sixth amendment of the United States Constitution and the Illinois Constitution (U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8), there is no constitutional right to the

assistance of counsel in postconviction proceedings (People v. Suarez, 224 Ill. 2d 37, 42 (2007)).

Rather, the right to counsel in such proceedings finds its authority in the Act. See 725 ILCS 5/122-

4 (West 2016). The Act provides for a reasonable level of assistance, and to ensure that reasonable

assistance is provided, Rule 651(c) imposes specific duties upon postconviction counsel. Suarez,

224 Ill. 2d at 42. Pursuant to Rule 651(c), the certificate must show that counsel: (1) consulted

with the petitioner to ascertain his contentions of constitutional deprivations; (2) examined the

record of the trial proceedings; and (3) made any amendments to the filed pro se petitions necessary

to adequately present the petitioner’s contentions. See Ill. S. Ct. 651(c) (eff. July 1, 2017); People

v. Profit, 2012 IL App (1st) 101307, ¶ 18 (citing People v. Perkins, 229 Ill. 2d 34, 42 (2007)).

Substantial compliance with the rule is sufficient. Id. Counsel’s duties under Rule 651(c) “do not

include bolstering every claim 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 petition.” People v. Custer, 2019 IL 123339, ¶ 38. When counsel files a

facially valid Rule 651(c) certificate, there is a rebuttable presumption that counsel provided

reasonable assistance. People v. Quezada, 2022 IL App (2d) 210076, ¶ 14. The defendant then

- 10 - No. 1-21-1205

bears the burden of demonstrating that counsel failed to substantially comply with the rule. Profit,

2012 IL App (1st) 101307, ¶ 19. Whether postconviction counsel provided reasonable assistance

in compliance with Rule 651(c) is also reviewed de novo. Suarez, 224 Ill. 2d at 41-42.

¶ 34 In the case before us, defendant’s postconviction counsel filed a facially valid Rule 651(c)

certificate which gives rise to a presumption that counsel provided reasonable assistance. See

Profit, 2012 IL App (1st) 101307, ¶ 19. Our supreme court has not suggested that the filing of a

facially valid Rule 651(c) certificate results in rubber-stamp approval of counsel’s assistance.

Perkins, 229 Ill. 2d 34, 52 (2007); see also People v. Schlosser, 2012 IL App (1st) 092523, ¶ 33

(“Counsel cannot fulfill his Rule 651(c) duties simply by filing a certificate if he has not provided

adequate assistance.”). A certificate is not conclusive evidence of compliance; it merely creates a

rebuttable presumption. Id.

¶ 35 The State asserts that defendant cannot rebut the presumption because the record

demonstrates that appointed counsel substantially complied with the requirements of Rule 651(c).

The State refers to multiple instances in the record where appointed counsel referred to her efforts

to investigate defendant’s claims. Additionally, the State points out that defendant does not allege

that counsel did not have sufficient discussions with him regarding his petition and there is nothing

in the record to support defendant’s assertion that counsel’s assistance was unreasonable. We agree

with the State to the extent that the record supports counsel’s statements regarding her

investigation of defendant’s claims and her review of the record.

¶ 36 The record reveals that counsel informed the court that she had spoken with defendant and

that she needed access to the record and trial transcripts. The court entered orders to facilitate

counsel’s request. On multiple other court dates, counsel referenced witnesses whom defendant

wanted her to investigate. She eventually informed the court that she was unable to contact one

- 11 - No. 1-21-1205

witness despite multiple attempts. As such, the record supports counsel’s statements that she

consulted with defendant and conducted a review of the records available to her.

¶ 37 Nonetheless, defendant argues that the presumption of substantial compliance is rebutted

by counsel’s clear failure to amend the petition to include a claim of ineffective assistance of

appellate counsel for failure to raise a claim of prosecutorial misconduct on direct appeal, which

was necessary to avoid forfeiture of the underlying claim. He further contends that counsel failed

to shape defendant’s claims regarding the informant into a Franks claim, to strengthen defendant’s

claim of a Brady violation by addressing the requisite elements, and to provide an affidavit from

the informant to support defendant’s allegations.

¶ 38 Postconviction counsel has a duty to make any amendments to an already filed pro se

petition as necessary to adequately represent and present the defendant’s contentions. Profit, 2012

IL App (1st) 101307, ¶ 18; see also People v. Johnson, 154 Ill. 2d 227, 238 (1993) (postconviction

counsel must shape petitioner’s complaints in pro se petition into “appropriate legal form”).

However, “[t]here is no requirement that post-conviction counsel must amend a petitioner’s pro se

post-conviction petition.” (Emphasis added.) People v. Turner, 187 Ill. 2d 406, 412 (1999).

“Although counsel may raise additional issues if he or she so chooses, counsel is not required to

do so.” People v. Kirk, 2012 IL App (1st) 101606, ¶ 21. There is no requirement that postconviction

counsel “advance frivolous or spurious claims.” People v. Greer, 212 Ill. 2d 192, 205 (2004).

Nonetheless, “[a]n adequate proper presentation of a petitioner’s substantive claims necessarily

includes attempting to overcome procedural bars *** that will result in dismissal of a petition if

not rebutted.” People v. Perkins, 229 Ill. 2d at 44.

¶ 39 Because we find the issue to be dispositive, we first address defendant’s claim that the

presumption of compliance is rebutted by counsel’s failure to amend the petition to include an

- 12 - No. 1-21-1205

allegation of ineffective assistance of appellate counsel for failure to raise a claim of prosecutorial

misconduct on direct appeal.

¶ 40 This court has held on multiple occasions that postconviction counsel’s failure to amend a

postconviction petition to avoid forfeiture renders counsel’s assistance unreasonable under Rule

651(c). See People v. Schlosser, 2012 IL App (1st) 092523; People v. Kirk, 2012 IL App (1st)

101606.

¶ 41 In Schlosser, the defendant argued that postconviction counsel’s assistance was

unreasonable because he failed to amend the petition to include an allegation that defendant was

prejudiced by the allegedly ineffective assistance of appellate counsel, who failed to raise a number

of issues on direct appeal. 2012 IL App (1st) 092523, ¶ 25. Postconviction counsel did, in fact,

argue ineffective assistance of appellate counsel before the circuit court but the issue was never

included in an amended petition, and the circuit court specifically noted its absence in ruling that

the defendant’s claim was waived and his petition dismissed. Id. ¶ 27. This court held that

counsel’s failure to make a routine amendment “directly contributed” to the dismissal of the

petition. Id. ¶ 24. Accordingly, the court concluded that postconviction counsel’s assistance fell

below the level required by Rule 651(c) and reversed and remanded to allow the defendant to

amend his petition. Id. ¶¶ 28, 35.

¶ 42 Similarly, in Kirk, the defendant asserted that postconviction counsel provided

unreasonable assistance for failing to amend the petition to include an oral claim of ineffective

assistance of appellate counsel, which counsel asserted during argument on the State’s motion to

dismiss. 2012 IL App (1st) 101606, ¶ 27. Relying on Schlosser, this court found that counsel did

not comply with the duties imposed by Rule 651(c). Id. ¶ 31. The court thus reversed and remanded

- 13 - No. 1-21-1205

to allow the defendant leave to amend his petition with a claim of ineffective assistance of appellate

counsel. Id. ¶ 36.

¶ 43 We agree with Schlosser and Kirk. Reasonable assistance requires postconviction counsel

to amend the petition to overcome procedural bars where possible. Postconviction counsel can

overcome the procedural bar of forfeiture by alleging that appellate counsel was ineffective for

failing to raise a claim on appeal. People v. Childress, 191 Ill. 2d 168, 174-75 (2000). The

Schlosser court largely relied on the supreme court case of People v. Turner in finding that

compliance with Rule 651(c) requires counsel “to make a routine amendment to the postconviction

petition that would have overcome the procedural bar of waiver[.]” Schlosser, 2012 IL App (1st)

092523, ¶ 22 (citing Turner, 187 Ill. 2d at 414); see also People v. Kluppelberg, 327 Ill. App. 3d

939, 947 (2002) (citing to Turner in concluding that postconviction counsel’s failure to assert

appellate counsel’s ineffectiveness in the amended petition, especially where it was properly

alleged in the pro se petition, was “patently unreasonable”). The “routine amendment” at issue in

Schlosser, as well as in Turner, was alleging ineffective assistance of appellate counsel. The

Turner court noted “the ease with which a petitioner may evade the operation of waiver simply by

arguing ineffective assistance of appellate counsel.” 187 Ill. 2d at 413. The State points out that,

in Turner, it appears that postconviction counsel did not file a Rule 651(c) certificate and thus

there was no presumption of compliance. Be that as it may, the distinction does not nullify the

import of Turner’s remarks regarding such “routine” amendments.

¶ 44 Here, the record shows that the circuit court expressly dismissed defendant’s claim that the

State committed prosecutorial misconduct as forfeited because it could have been raised on direct

appeal. The court does not address the merits of that claim. Had counsel simply amended the

petition to add a claim of ineffective assistance of appellate counsel, the procedural bar would have

- 14 - No. 1-21-1205

been overcome and the court would have reached the merits. 1 Counsel stated in her certificate that

she did not amend the petition because it “adequately set forth [defendant’s] claims of deprivation

of his constitutional rights.” Because counsel’s statement is contradicted by the clear need for an

amendment to avoid forfeiture, we must conclude that the presumption of compliance with Rule

651(c) is rebutted by the record before us. See Schlosser, 2012 IL App (1st) 092523, ¶ 32 (“Counsel

cannot fulfill his Rule 651(c) duties simply by filing a certificate if he has not provided adequate

assistance.”).

¶ 45 We note that, although this case differs from Kirk and Schlosser in that counsel here did

not orally reference a claim of ineffective assistance of appellate counsel, we find that counsel

should have been aware that such a claim would have at least avoided forfeiture of one or more of

defendant’s claims. The record shows that the State specifically argued in its motion to dismiss the

petition that defendant’s claims were forfeited as they could have been raised on direct appeal.

This is a clear indication that a claim of ineffective assistance of appellate counsel should have

been included in the petition in order to avoid forfeiture. Significantly, our supreme court has

recognized that “counsel may seek leave to amend the petition to include those allegations [even]

after the State has moved to dismiss” as the right to amend the petition is not limited. Perkins, 229

Ill. 2d at 49. Thus, after the State quite nearly identified the failure to include a claim of ineffective

assistance of appellate counsel, postconviction counsel was on notice of the risk of forfeiture and

should have sought leave to amend the petition to at least add such a routine claim. Counsel’s

failure to do so precluded the trial court from considering the merits of the claim. Accordingly,

1 In dismissing the petition, the circuit court did not address defendant’s claim that trial counsel should have sought DNA testing of the recovered drug kit. The court did, however, mention this claim when it advanced defendant’s petition to second-stage proceedings. Defendant’s DNA testing claim is yet another claim potentially ripe for review had counsel amended the petition to add defendant’s ineffective assistance of appellate counsel claim.

- 15 - No. 1-21-1205

counsel’s assistance must be deemed unreasonable and the presumption of compliance with Rule

651(c) is rebutted. See People v. Smith, 2022 IL App (4th) 210582-U, ¶ 20 (unpublished order

under Supreme Court Rule 23(c)) (holding that where forfeiture would be averted by an

amendment alleging ineffective assistance of appellate counsel, such an amendment is necessary

and the failure to do so rebuts the presumption of reasonable assistance).

¶ 46 Nonetheless, the State asserts that defendant has failed to show prejudice. The State posits

that defendant has failed to demonstrate that his underlying claims had merit, and therefore,

postconviction counsel had no duty to amend the petition to further a non-meritorious claim.

¶ 47 However, under these circumstances, a defendant is not required to show prejudice. People

v. Nitz, 2011 IL App (2d) 100031, ¶ 18. This is so because the limited right to postconviction

counsel under the Act cannot be fully realized where counsel does not adequately fulfill the duties

set forth in Rule 651(c). Suarez, 224 Ill. 2d at 43-44. In such situations, our supreme court has

repeatedly held that remand is required, regardless of whether the claims in the petition have merit.

Id. at 47 (collecting cases); Turner, 187 Ill. 2d at 416 (same); see also People v. Zareski, 2017 IL

App (1st) 150836, ¶ 55 (stating that “the Suarez rule only applies to counsel who have been

appointed or retained at the second stage to assist a pro se petitioner,” as such counsel are guided

by Rule 651(c)); but see People v. Profit, 2012 IL App (1st) 101307, ¶ 23 (declining to follow this

rule from Suarez because no certificate of compliance was filed in that case). Further, the supreme

court has stated that the prejudice to a defendant is “palpable” where their postconviction counsel

failed to overcome the procedural bar of forfeiture. Turner, 181 Ill. 2d at 416. In the instant case,

counsel’s unreasonable assistance served as a bar to the circuit court’s consideration of the merits

of defendant’s petition, and we find it would be improper to consider a claim that the circuit court

did not. See id. (stating that the reviewing court “will not speculate whether the trial court would

- 16 - No. 1-21-1205

have dismissed the petition without an evidentiary hearing if counsel had adequately performed

his duties under Rule 651(c)”).

¶ 48 Accordingly, because counsel did not comply with her duties under Rule 651(c) by

amending the petition to include a rote claim of ineffective assistance of appellate counsel, we will

not assess the merits of any such claim. 2 See People v. Wallace, 2018 IL App (5th) 140385, ¶ 45

(declining “to consider the merits of the defendant’s petition where the trial court has not yet done

so due to counsel’s failure to make amendments that are necessary for forfeiture”); People v.

McDonald, 2018 IL App (3d) 150507, ¶ 33 (stating that remand is required regardless of whether

the claim had merit); People v. Russell, 2016 IL App (3d) 140386, ¶ 11 (holding that the defendant

was “not required to make a positive showing that his counsel’s failure to comply with Rule 651(c)

caused prejudice” and counsel’s noncompliance could not be excused on the basis of harmless

error).

¶ 49 We agree with the reasoning set forth in the recently issued decision, People v. Smith, 2023

IL App (1st) 210909-U (Lavin, J., dissenting) (unpublished order under Supreme Court Rule 23),

wherein the majority declined to address the merit of the claims at issue. On appeal to this court,

the defendant argued that his postconviction counsel rendered unreasonable assistance in orally

asserting two new claims that she failed to include in an amended petition. Id. ¶ 40. The majority

reversed the second-stage dismissal of the defendant’s postconviction petition because

2 Significantly, currently pending before the Illinois Supreme Court are three cases that, to some extent, involve the issue of whether the reviewing court should consider the merits of a claim that postconviction counsel should have added or amended in order to comply with Rule 651(c). People v. Agee, No. 128413 (Sept. 28, 2022) (granting petition for leave to appeal from People v. Agee, No. 2-20-0748 (Dec. 23, 2021) (unpublished summary order under Rule 23(c))); People v. Urzua, No. 127789 (Jan. 26, 2022) (granting petition for leave to appeal from People v. Urzua, 2021 IL App (2d) 200231); People v. Addison, No. 127119 (Sept. 29, 2021) (granting petition for leave to appeal from People v. Addison, 2021 IL App (2d) 180545).

- 17 - No. 1-21-1205

postconviction counsel failed to provide reasonable assistance. Id. ¶ 1. After so concluding, the

majority addressed the dissent, which asserted that reversal was not warranted where the defendant

could not show that he was prejudiced. Id. ¶ 71. With reliance on Suarez and other decisions

rendered by our supreme court, the majority in Smith held that “where postconviction counsel has

not complied with Rule 651(c) or otherwise given the reasonable level of assistance required by

the Act, remand is appropriate regardless of the merits of the claims.” Id. ¶¶ 73-78. The majority

acknowledges a number of decisions from this court distinguishing Suarez based on the absence

of a Rule 651(c) certificate and considering the merit of the claims asserted instead. Id. ¶ 81 (citing

cases). However, as we have noted, there are also a number of decisions which reach the same

result as does Smith, and now as do we. And like the majority in Smith, we note that we are not

bound by decisions of other districts, divisions, or panels. Id. ¶ 82 (citing O’Casek v. Children’s

Home and Aid Society, 229 Ill. 2d 421, 440 (2008)). Moreover, we agree with the Smith majority

that the Suarez court in no way appeared to limit its holding to cases in which Rule 651(c)

certificates were not filed. In any case, as of this writing, there is no supreme court precedent

requiring a defendant to both rebut the presumption of compliance with Rule 651(c) and show

prejudice based on the merits of the underlying claims. Id. ¶¶ 81-83.

¶ 50 As a final aside on this point, this split of authority appears to be largely driven by the

difficulty of reconciling the principle that counsel is not required to advance frivolous or spurious

claims with the principle that counsel should make routine amendments to avoid the application

of procedural bars and to ensure the defendant’s claim is review on the merits. These principles

are seemingly at odds in situations such as the one with which we are faced here. We anticipate

that our supreme court will resolve this tension in at least one of the three cases currently before

it. That being said, this court will not forestall defendant’s appeal while awaiting the outcome of

- 18 - No. 1-21-1205

those cases, and accordingly, we remain resolute in our decision to follow the Suarez rule in this

case.

¶ 51 We also briefly address defendant’s arguments that postconviction counsel was ineffective

for failing to shape his claim regarding the informant into a cognizable Franks claim, to add the

requisite elements for defendant’s claim of a Brady violation, and to provide an affidavit from the

informant to support defendant’s allegations.

¶ 52 We reject defendant’s argument that counsel should have amended the petition to allege a

Franks claim because the circuit court ultimately reviewed the merits of such a claim despite it not

being included in the petition. The Franks claim which defendant contends should have been added

to his petition was addressed by the circuit court in its oral ruling following the hearing on the

State’s motion to dismiss. Specifically, the court stated that the success of such a claim, even if it

had been argued, was speculative and defendant could not show legally sufficient prejudice. As

such, we decline to find that postconviction counsel provided unreasonable assistance for failing

to shape defendant’s claims into a Franks claim.

¶ 53 We also reject defendant’s argument that the Brady violation claim should have been

amended and supported with an affidavit from the informant. Defendant’s counsel explicitly noted

before the court multiple times that, despite her investigative efforts, she was unable to contact a

witness related to defendant’s petition. Because counsel was unable to obtain an affidavit to

support defendant’s claims regarding the informant, the claim could not be supported with

evidence and there was no need for counsel to amend the petition to shape the claim into proper

legal form. See Johnson, 154 Ill. 2d at 241 (A circuit court “may reasonably presume that post-

conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction

claims, but was unable to do so.”).

- 19 - No. 1-21-1205

¶ 54 Finally, we note that neither of these amendments can be construed as routine and could

not be made with the same ease as an amendment to add an allegation that appellate counsel’s

representative was ineffective, which is the rationale behind the decisions of Schlosser and Kirk.

Therefore, such amendments were not required of counsel.

¶ 55 Because we find that postconviction counsel did not provide reasonable assistance, we need

not address defendant’s argument that postconviction counsel had an ethical duty to withdraw and

provide defendant the opportunity to advance his claims on his own or through new counsel. As a

final note, and consistent with our discussion above, our decision should not be construed as an

opinion on the merits of defendant’s claims in his petition as that was not the issue before us. See

Johnson, 154 Ill. 2d at 246 (it is the duty of the trial court, not a reviewing court, to determine on

the basis of a complete record whether the postconviction claims requires an evidentiary hearing).

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we vacate the judgment of the circuit court dismissing the pro se

postconviction petition and remand for further second-stage proceedings under the Act. On

remand, the circuit court shall appoint new counsel and allow defendant to amend his

postconviction petition.

¶ 58 Vacated and remanded.

- 20 -