2020 IL App (5th) 170055-U NOTICE NOTICE Decision filed 01/03/20. The This order was filed under text of this decision may be NO. 5-17-0055 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the IN THE Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) Nos. 06-CF-1612 & ) 07-CF-415 ) TIFFANY HALL, ) Honorable ) Zina R. Cruse, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.
ORDER
¶1 Held: We reverse the dismissal, at the second stage of proceedings, of the defendant’s amended petition for postconviction relief, and remand to the circuit court with directions to allow the defendant the opportunity to replead the postconviction petition with the assistance of new counsel, because the defendant did not receive the requisite reasonable level of assistance from her postconviction counsel.
¶2 The defendant, Tiffany Hall, appeals the dismissal, at the second stage of proceedings in
the circuit court of St. Clair County, of her amended petition for postconviction relief. For the
following reasons, we reverse the dismissal, and remand to the circuit court with directions to
allow the defendant the opportunity to replead the postconviction petition with the assistance of
new counsel.
1 ¶3 I. BACKGROUND
¶4 The following facts are derived from the record on appeal. Many of them were included
in this court’s previous order in this case, which was issued in appellate case number 5-13-0046
(People v. Hall, 2014 IL App (5th) 130046-U). On June 9, 2008, before the Honorable Milton S.
Wharton, the defendant entered pleas of guilty to five charges: three counts of first degree
murder in case number 07-CF-415, and one count of first degree murder and one count of
intentional homicide of an unborn child in case number 06-CF-1612. The State explained that in
exchange for the pleas of guilty, the State had agreed to withdraw its notice of intent to seek the
death penalty, which at that time was potentially available in Illinois as a penalty. The parties
agreed that because there were multiple decedents, the minimum sentence the court could impose
following conviction on the first degree murder counts was mandatory life in prison without the
possibility of parole. Judge Wharton then inquired, as he had each previous time the defendant
appeared before him, as to how the defendant was being treated at the St. Clair County jail and as
to her level of satisfaction with the representation of her by her attorneys. The defendant did not
voice any concerns with regard to either matter. Judge Wharton then admonished the defendant
with regard to the charges against her and the penalties she faced. Following that, the State
presented its factual basis in support of the five charges, to which the defendant stipulated.
¶5 After giving additional admonishments regarding the defendant’s rights, Judge Wharton
inquired of the defendant’s two trial attorneys whether there had “been anything that might have
created a doubt in your mind as to her fitness to enter a plea of guilty in this case?” One of her
attorneys replied in the negative, and added that psychologist Dr. Daniel J. Cuneo had been
appointed “to conduct examinations as to both sanity as well as fitness.” The attorney noted that
the record contained Dr. Cuneo’s report, and that “not only by way of that documentation, but by
way of subsequent analysis, the independent experts from Chicago, we have confirmed that in 2 point of fact she was then and is now and has been throughout this process both fit and sane,”
and that she was fit to enter a plea of guilty on that date. As this court noted in our previous
order, Dr. Cuneo’s report is included in the record on appeal, and does not provide any
information about the defendant’s sanity at the time of the murders she allegedly committed,
instead limiting itself, by the plain and explicit language of its first sentence, to “establishing an
opinion as to [the defendant’s] fitness to stand trial.” People v. Hall, 2014 IL App (5th) 130046-
U, ¶ 5. The penultimate sentence of the report reiterates the limited scope of Dr. Cuneo’s report,
stating Dr. Cuneo’s opinion that the defendant “is presently fit to stand trial” and offering not a
word about the defendant’s sanity at the time of the offenses.
¶6 Still more admonishments from Judge Wharton followed, and then the defendant waived
her right to a presentence investigation. With regard to her prior criminal history, the State
conceded that the defendant had “no significant criminal history, certainly no felony criminal
history.” The defendant’s attorney then represented to Judge Wharton that “in mitigation,” he
would note that “while the reports came back indicating that she was both fit to stand trial and
that there were no legal defenses involving insanity, we do believe *** there are some issues that
not only involve mental health issues,” but also the limited intellectual functioning of the
defendant. Judge Wharton accepted the defendant’s pleas of guilty and sentenced her to four
concurrent life sentences on the first degree murder charges, to be served concurrently with a 60-
year sentence on the intentional homicide of an unborn child charge.
¶7 On September 19, 2008, the defendant filed an untimely motion to withdraw her guilty
plea, which was dismissed by the trial court. On November 13, 2012, the defendant filed a pro se
petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2012)), as well as a request for appointment of counsel. In her petition, she raised multiple
issues, including “ineffective assistance of counsel” and “mental incompetency.” Specifically, 3 she alleged, inter alia, that plea counsel “failed to investigate my mental health condition
properly and actually didn’t receive documentation of my psychiatric evaluation until two days
after my guilty plea was entered.” In support of this allegation, the defendant attached to her
petition the report of psychologist Dr. Robert L. Heilbronner, which was stamped “RECEIVED
JUN 11 2008.” Unlike Dr. Cuneo’s report, which by its own terms limits itself to the question of
the defendant’s fitness to stand trial, Dr. Heilbronner’s report states that the results of the report
“may be used to assist in the guilt/innocence phase, or in mitigation should a sentence of death
be considered as punishment.” Dr. Heilbronner’s report states that the defendant “has a
prominent mental health history that began when she was a young child and includes several
psychiatric hospitalizations,” and that Dr. Heilbronner believes the results of his evaluation are
“reliable and valid” because the results suggest that on the dates he interviewed her, the
defendant “did not attempt to feign or exaggerate cognitive impairment.” Later in the report, Dr.
Heilbronner states that the Structured Interview of Reported Symptoms (SIRS) “was also
administered to assess the reliability and validity of her apparent psychiatric symptoms,” and that
“there was no evidence of any attempt to feign or malinger psychopathology at this moment.”
(Emphasis in original.) After detailing the various psychiatric symptoms described by the
defendant, the report concludes that “mental health factors are the predominant issues in this
case,” and “are relevant to the commission of the crime(s) as well as mitigation.” The report
notes that the defendant’s “history includes serious problems in the psychiatric domain including
two psychiatric hospitalizations for suicidal ideation,” and that “there is longstanding evidence of
psychiatric and behavioral problems that play an important role in understanding [the
defendant’s] history and her mental status around the time in which the crimes were committed.”
The report also advises that “[i]t might be of use to have [the defendant] undergo additional
medical and radiologic (PET scan or brain MRI) studies to ascertain whether there is any 4 objective evidence of disruption to other neurobiological functions as a result of developmental
issues,” and that “[p]sychiatric examination would also be helpful to assist in further differential
diagnosis and to ascertain whether the voices she claims to hear represent actual auditory
command hallucinations or some form of obsessive thinking.” In further support of this
allegation in her petition, the defendant alleged that postplea psychiatric evaluations of her at
Dwight Correctional Center led to the following diagnoses: psychotic disorder, posttraumatic
stress disorder, schizophrenia, mood disorder, and bipolar disorder, as well as a diagnosis of
“mild mental retardation.”
¶8 On January 2, 2013, the trial judge who took over the case following Judge Wharton’s
retirement from the trial court entered a two-sentence order in which the judge ruled that the
defendant’s petition “failed to state the [g]ist of a [c]onstitutional [d]eprecation [sic]” because
“the record refutes the allegations” found in the petition. The defendant appealed, contending,
inter alia, that the trial judge erred in summarily dismissing her pro se petition because the
petition set forth the gist of a constitutional claim that guilty plea counsel was ineffective for
failing to properly investigate the defendant’s mental health condition before advising her to
plead guilty. We agreed that summary dismissal was not appropriate, noting that at the time they
advised her to plead guilty, plea counsel had not yet received Dr. Heilbronner’s report explicitly
addressing the issue of the defendant’s sanity at the time of the alleged offenses. People v. Hall,
2014 IL App (5th) 130046-U, ¶ 16. We also agreed with the defendant that “it was Dr.
Heilbronner’s report, not Dr. Cuneo’s, which if followed up on might have supported a possible
insanity defense at trial, which in turn might have led to a finding of not guilty by reason of
insanity, a crucial distinction that would not have been lost on capable and diligent plea
counsel.” Id. Therefore, we agreed with the defendant that at the first stage of proceedings, it was
“arguable that plea counsel’s performance fell below an objective standard of reasonableness and 5 that the defendant was prejudiced thereby.” Id. We reversed the trial judge’s summary dismissal
of the defendant’s pro se petition and remanded for further proceedings on the entire petition. Id.
¶ 18. Our ruling to remand the entire petition was based upon the fact that under Illinois Supreme
Court precedent, if we find “that even one of [a] defendant’s contentions presents the gist of a
constitutional claim, the entire petition must be remanded for further proceedings, regardless of
the merit of any other contentions presently contained therein, because the entire petition is
subject to amendment by appointed counsel on remand.” Id. ¶ 11 (citing People v. Cathey, 2012
IL 111746, ¶ 34).
¶9 On remand, because the trial judge who had summarily dismissed the petition was no
longer a judge, the case was assigned to the Honorable Zina R. Cruse. In an order entered on
March 20, 2015, she appointed postconviction counsel and gave him 45 days to determine
whether the pro se petition should be amended. Postconviction counsel subsequently requested
several extensions of time. Thereafter, on August 11, 2015, he requested an additional extension
of time, noting that the amended petition was due on August 6, 2015, but that on August 3, 2015,
he received a letter from the defendant, which he attached to his extension request. He contended
that “[b]ecause of the problems detailed in [the defendant’s] letter,” he could not meet the
existing deadline. Additional extensions of time were requested by postconviction counsel and
granted.
¶ 10 On November 24, 2015, postconviction counsel filed an amended petition, as well as a
certificate of compliance pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). In
his certificate of compliance, postconviction counsel stated that, inter alia, he had “consulted
with [the defendant] to ascertain her contentions of deprivation of constitutional rights,” and had
“examined the entire Report of the Proceedings of Trial.” (Emphasis in original.) In the petition,
postconviction counsel raised claims of ineffective assistance of plea counsel, and of actual 6 innocence with regard to the three counts of first degree murder in case number 07-CF-415.
Accompanying the petition were: (1) an “Attestation” signed by the defendant on August 27,
2015, in which she stated that she had “personal knowledge of the facts and statements alleged in
the [amended petition] and that they are true and correct,” (2) an affidavit from Dr. Cuneo,
signed on November 19, 2015, in which he averred that although he “had discussions with [the
defendant’s plea counsel] about issues relating to [the defendant’s] sanity or lack thereof at the
time of the commission of the offenses,” his “purpose was the establishing of an opinion as to
her fitness to stand trial,” (3) an affidavit from Dr. Heilbronner regarding his 2008 report, and
(4) other supporting documentation discussed in more detail, as necessary, below.
¶ 11 On January 22, 2016, the State filed a motion to dismiss postconviction counsel’s
amended petition, contending that (1) an insanity defense is inconsistent with an actual
innocence claim, and therefore the former claim must be limited to case number 06-CF-1612,
(2) the defendant did not allege that her guilty pleas were coerced or involuntary, so her
ineffective assistance of plea counsel claims must fail, and (3) her initial, pro se petition was
untimely. After citing relevant case law, the State’s motion contended, in paragraph 17, that
postconviction counsel had “failed to demonstrate or even to allege in the amended petition that,
but for her attorney’s alleged ineffectiveness, she would have insisted on going to trial,” and that
he had “offered no evidence as to a plausible defense in either series of murders and offered no
evidence in support of her bare allegation of actual innocence in the murders” in case number 07-
CF-415. (Emphasis in original.) The State also posited that postconviction counsel had “failed to
establish that [the defendant] was prejudiced by her attorneys’ representation,” and contended
that the record contained overwhelming evidence that would have prevented the defendant from
succeeding had she gone to trial in the two capital cases. The State noted that neither affidavit
attached to the amended petition included “an opinion that [the] defendant was insane at the 7 time” of the alleged crimes. Included with the State’s motion to dismiss was an additional
affidavit from Dr. Cuneo, subscribed and sworn to on January 21, 2016, in which Dr. Cuneo
stated that he wished to clarify his November 19, 2015, affidavit to note that during his
“discussions as to the issue of sanity with [the defendant’s plea counsel],” he “unequivocally
opined that [the defendant] was not insane at the times of the alleged offenses,” and that “a
decision was made not to memorialize such opinion in a written report.” The affidavit does not
state that Dr. Cuneo ever actually examined the defendant for purposes of determining her sanity
at the time of the alleged offenses, does not provide a factual basis for how he formed his
opinion that she was not insane at those times, and does not attest that his opinion was within a
reasonable degree of psychological certainty.
¶ 12 A hearing on the State’s motion to dismiss was conducted on February 18, 2016, at which
the parties presented arguments that were for the most part consistent with the filings and
positions described above. Thereafter, Judge Cruse took the motion to dismiss under advisement.
On March 3, 2016, the defendant, acting in a pro se capacity, filed a handwritten motion in
which she asked Judge Cruse to remove postconviction counsel from her case, alleging that he
“refused to take [her] input for the *** case” and “changed [the] amended petition after” she
signed it. She further alleged that postconviction counsel “refused to explain the petition, the
effects of the petition[,] and what is currently going on with the *** case with [her]” when she
informed postconviction counsel that she did not “understand.” She requested a different
attorney to represent her, and stated that she had “been writing [to the] court since August asking
them to intervene.” On April 13, 2016, Judge Cruse entered an order in which she stated that the
defendant had “raised issue of ineffective assistance of counsel.” On April 25, 2016, Judge Cruse
entered an additional order, in which she ruled that she would not continue to consider the
motion to dismiss until she had investigated the defendant’s complaint about postconviction 8 counsel. She noted she would do the latter by means of a “Krankel inquiry,” in apparent
reference to the procedure outlined by the Illinois Supreme Court in People v. Krankel, 102 Ill.
2d 181 (1984).
¶ 13 On May 16, 2016, Judge Cruse held her Krankel inquiry. She first asked the defendant to
tell Judge Cruse more about the defendant’s unhappiness with postconviction counsel. The
defendant reiterated her written allegations, noting in particular that she told postconviction
counsel what she “felt needed to be included in the amended petition, based off of what the
appellate defenders told” her should be added. Judge Cruse asked the defendant what,
specifically, she wanted included that was not included, to which the defendant replied,
“suppression of statements.” Judge Cruse then asked, “Was that ever an issue in the—,” to which
the State (apparently believing the partial question was addressed to it) replied, “I apologize,
Your Honor. I—I don’t know.” Postconviction counsel subsequently stated that “[t]here was
never a hearing on the suppression. The plea was entered prior to *** having any evidence.” The
defendant also contended, inter alia, that she wished for postconviction counsel to raise
“coercion of being coerced to basically plead guilty. I was denied protective custody. He didn’t
raise that issue, either, after I requested it.” She also contended that postconviction counsel
removed support for the actual innocence claim because, postconviction counsel told her, the
potential witness “did not want to help out with the case anymore.” Judge Cruse asked the
defendant several more questions, then asked the parties, “Did either of you want to ask [the
defendant] any questions?” 1 The State answered, “No, Your Honor,” as did postconviction
counsel. She then asked postconviction counsel if he wished to reply. Postconviction counsel
stated that he wanted Judge Cruse to know that he and the defendant “met on several occasions
1 The Illinois Supreme Court has ruled that a preliminary Krankel inquiry is to be a “neutral and nonadversarial proceeding” at which the State’s input, if there is any at all, should be de minimis. People v. Jolly, 2014 IL 117142, ¶ 38. 9 prior to the preparation of the petition,” and “had discussions.” He stated that despite
“differences as to what she thought should be put in there,” he prepared the amended petition
“based upon what I thought ultimately was our understanding.” He noted the “significant delay
from the time of the preparation of the petition, and her signing of the petition and the filing of
it,” and that “a couple of changes were made, primarily because of Dr. Cuneo’s affidavit.”
Postconviction counsel stated that he “thought that’s what she was complaining about, the
change.” He stated that at the time the amended petition was filed, he “had not contacted—had
not been successful contacting any of the independent witnesses,” but that later he did make
contact with the witness referred to by the defendant, and postconviction counsel and the witness
“had the conversations that [the defendant] described.” Judge Cruse took the matter under
advisement.
¶ 14 On June 8, 2016, Judge Cruse entered orders in which she (1) without explanation, ruled
that the defendant’s claim of ineffective assistance of postconviction counsel was “unfounded,”
and/or had “no basis,” and (2) noted that because the State, in its motion to dismiss, had raised
timeliness as an issue, she was granting postconviction counsel “leave to amend” the petition
within 30 days “to address the [defendant’s] untimeliness (culpable negligence)” issue, to
“comply” with Illinois Supreme Court Rule 651(c). Thereafter, postconviction counsel again was
granted several extensions of time to comply with Judge Cruse’s ruling. On August 15, 2016,
postconviction counsel filed what he captioned as an “Amendment to Amended Post-Conviction
Petition” (the Amendment). Therein, he asserted that the defendant’s initial pro se petition
included an actual innocence claim, and adequately asserted “lack of culpable negliglence.” He
stated that “[f]or purposes of clarity,” he would “reassert[ ] her lack of culpable negligence.” He
then alleged, inter alia, that the defendant (1) “[a]t all relevant times” between the date of her
guilty plea and sentencing (June 9, 2008) and the date of the filing of the pro se petition 10 (November 13, 2012), “suffered from severe and debilitating mental illness, rendering her
incapable of sufficient clarity to pursue legal remedies,” (2) “received mental health treatment
from June 2008 to March 2013,” (3) “resided at mental health unit at Dwight from June 2008 to
January 2012,” (4) “[o]n multiple occasions *** was in protective custody or cottage restriction,
denying her access to facilities and assistance necessary for filing her petition,” and (5) “was
frustrated in her efforts to obtain transcripts and records from either the court or her attorneys.”
Various handwritten documents, typed letters from plea counsel, and what appear to be
medical/mental health records are filed in the record on appeal immediately after the
Amendment, although none of the documents are recorded, on their face, as exhibits to the
Amendment. There is no evidence in the record on appeal that postconviction counsel filed,
along with the Amendment and any other documents filed therewith, a certificate of compliance
with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
¶ 15 On September 7, 2016, the State filed its “Second Motion to Dismiss.” Therein, the State
expressly “incorporate[d] all of the arguments previously made in its” previous motion to
dismiss, noted that no affidavits other than that of the defendant accompanied the Amendment,
and contended that nothing filed by the defendant defeated the State’s untimeliness/culpable
negligence claim. The State also contended the facts found in the documents filed after the
Amendment belied her claims. A hearing on the State’s second motion to dismiss was held on
November 2, 2016. Thereafter, Judge Cruse again took the matter under advisement.
¶ 16 On January 30, 2017, Judge Cruse entered orders in which, ultimately, she ruled that with
regard to ineffective assistance of plea counsel (1) the defendant’s petitions were untimely, and
the “evidence” showed “that the delay was due to [the defendant’s] culpable negligence,” and
(2) timeliness notwithstanding, “considering the evidence/affidavits,” the claims failed. She also
ruled that with regard to actual innocence, “[n]o showing was made and no admissible or 11 credible argument was made to support the claim.” Accordingly, she granted the State’s motion
to dismiss. This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, the defendant raises two issues, contending: (1) postconviction counsel failed
to provide the defendant with the reasonable level of assistance of counsel required by the Act,
because he failed to make necessary amendments to her petition, failed to include available
support, and failed “to re-frame a potentially meritorious claim,” and (2) in the alternative, this
court should remand for a third-stage evidentiary hearing because the record on appeal “does not
rebut the allegation that plea counsel prematurely advised [the defendant] to plead guilty before
receiving an expert report questioning her sanity at the time of the offense.” We begin our
analysis with an overview of some of the general principles of law applicable at the second stage
of proceedings under the Act. When, at the second stage of proceedings, the State has filed a
motion to dismiss a petition, the trial court is concerned merely with determining whether the
petition’s allegations sufficiently demonstrate a constitutional infirmity that would necessitate
relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). At this stage, “the
defendant bears the burden of making a substantial showing of a constitutional violation” and
“all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true.”
People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The trial court reviews the petition’s factual
sufficiency as well as its legal sufficiency in light of the trial court record and applicable law.
People v. Alberts, 383 Ill. App. 3d 374, 377 (2008). At a dismissal hearing, the trial court is
prohibited from engaging in any fact finding. Coleman, 183 Ill. 2d at 380-81. Thus, the dismissal
of a postconviction petition at the second stage is warranted only when the allegations in the
petition, liberally construed in light of the trial record, fail to make a substantial showing of a
12 constitutional violation. Id. at 382. We review de novo the trial court’s dismissal of a
postconviction petition at the second stage. Pendleton, 223 Ill. 2d at 473.
¶ 19 We now examine in detail the defendant’s first contention on appeal: that postconviction
counsel failed to provide the defendant with the reasonable level of assistance of counsel
required by the Act, because he failed to make necessary amendments to her petition, failed to
include available support, and failed “to re-frame a potentially meritorious claim.” Specifically,
the defendant contends postconviction counsel failed to: (1) amend the petition “to allege
prejudice when attacking a guilty plea even after the State noted the error,” (2) attach to the
petition “an available letter which showed that [the defendant] did not see the report indicating
that an insanity defense was not foreclosed until after her plea,” (3) provide “available support
when alleging a lack of culpable negligence,” and (4) include, or explain the omission of, “a
potentially viable claim from the pro se petition.” The defendant urges this court to remand this
cause “for further second-stage proceedings with new counsel.”
¶ 20 As the defendant correctly notes, the Act provides for a reasonable level of assistance
from appointed counsel. See, e.g., People v. Perkins, 229 Ill. 2d 34, 42 (2007). A reasonable
level of assistance includes, inter alia, “attempting to overcome procedural bars, including
timeliness, that will result in dismissal of a petition if not rebutted.” Id. at 44. As the defendant
acknowledges, a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6,
2013) creates a rebuttable presumption that reasonable assistance was provided. See, e.g., id. at
52. However, that presumption may be rebutted by the record. People v. Russell, 2016 IL App
(3d) 140386, ¶ 10. “Whether postconviction counsel provided a reasonable level of assistance in
compliance with Supreme Court Rule 651(c) is reviewed de novo.” Id. This court has held that if
postconviction counsel fails to make a “routine” amendment, and if this court concludes
counsel’s failure “contributed directly to the dismissal of the petition without an evidentiary 13 hearing,” then “the presumption of reasonable assistance created by the filing of the certificate of
compliance with Rule 651(c)” is rebutted. Id. ¶ 11. Moreover, “a defendant is not required to
make a positive showing that his counsel’s failure to comply with Rule 651(c) caused prejudice.”
Id. ¶ 12. To the contrary, if “postconviction counsel failed to fulfill the duties of Rule 651(c),
remand is required, regardless of whether the claims raised in the petition had merit.” Id. That is
the case because “[p]ostconviction counsel’s noncompliance with Rule 651(c) may not be
excused on the basis of harmless error.” Id.; see also People v. Turner, 187 Ill. 2d 406, 416
(1999) (reviewing court “will not speculate whether the trial court would have dismissed the
petition without an evidentiary hearing if counsel had adequately performed his duties under
Rule 651(c)”). The proper remedy is to reverse the judgment dismissing the postconviction
petition and to remand to the circuit court with directions to allow the defendant the opportunity
to replead the postconviction petition with the assistance of new counsel. Russell, 2016 IL App
(3d) 140386, ¶ 12.
¶ 21 The defendant also correctly notes that to prevail on the ineffective assistance of plea
counsel claim raised in her petition, she was required to demonstrate, inter alia, that she was
prejudiced by the ineffective assistance, which in this context and at this stage of proceedings
required her to allege both that (1) absent the errors of counsel, she would have pleaded not
guilty and insisted on going to trial, and (2) there existed a claim of innocence or a plausible
defense she could have raised at trial. See, e.g., People v. Hall, 217 Ill. 2d 324, 335-36 (2005).
However, postconviction counsel did not amend the petition to make such allegations. We
believe such an amendment can be classified as a “routine” one for purposes of conducting an
analysis pursuant to People v. Russell, 2016 IL App (3d) 140386, but even if such an amendment
were not, under normal circumstances, a “routine” one, in this case the State pointed the error out
to postconviction counsel in paragraph 17 of the State’s first motion to dismiss, contending that 14 postconviction counsel had “failed to demonstrate or even to allege in the amended petition that,
but for her attorney’s alleged ineffectiveness, she would have insisted on going to trial,” and that
he had “offered no evidence as to a plausible defense in either series of murders and offered no
evidence in support of her bare allegation of actual innocence in the murders” in case number 07-
CF-415. (Emphasis in original.)
¶ 22 Thereafter, Judge Cruse gave postconviction counsel the opportunity to further amend the
petition. Although in her June 8, 2016, order, Judge Cruse specifically stated that the opportunity
was so postconviction counsel could address the State’s timeliness argument, she further stated it
was so he could comply with Rule 651(c). Nevertheless, postconviction counsel made no effort
to cure the errors pointed out by the State in paragraph 17 of its motion to dismiss, even though
curing those errors was necessary for him to in fact comply with Rule 651(c). Postconviction
counsel’s inaction is particularly concerning in light of the fact that postconviction counsel’s
filings demonstrate that he knew of the existence of Dr. Heilbronner’s report, a document which
supports the allegation—taken as true at this point in the proceedings (see, e.g., Hall, 217 Ill. 2d
at 336 (credibility determinations are not made at the second stage of proceedings; State assumes
the truth of defendant’s factual allegations by moving to dismiss petition))—that an insanity
defense was not in fact foreclosed and could have been pursued at trial. This, in turn, supports
the allegation—also taken as true at this point in the proceedings—that plea counsel were
ineffective to the extent they misrepresented to the defendant that she had no viable defenses at
trial and should plead guilty, and would have provided the support postconviction counsel
needed to make the required allegation that there existed a plausible defense the defendant could
have raised at trial. We agree with the defendant that this error of postconviction counsel alone
demonstrates unreasonable assistance of counsel in contravention of the requirements of Rule
651(c), and therefore requires this court to reverse Judge Cruse’s order dismissing the 15 postconviction petition, and to remand to the circuit court with directions to allow the defendant
the opportunity to replead the postconviction petition with the assistance of new counsel.
¶ 23 We also agree that postconviction counsel’s other errors compounded the petition’s
problems at the trial court level, demonstrate additional unreasonable assistance of counsel in
contravention of the requirements of Rule 651(c), and further justify remand for further second-
stage proceedings with new counsel. As the defendant points out, postconviction counsel failed
to attach to the amended petition a 2009 letter to the defendant from one of her plea counsel in
which plea counsel acknowledged, and explained why, he did not provide her with a copy of Dr.
Heilbronner’s report until more than a year after she entered her plea of guilty—a letter that
supported her allegation that she did not know, when she entered her plea, that an insanity
defense was not foreclosed. With regard to the State’s timeliness argument, postconviction
counsel could have used the same letter as supplementary support for his claim of a lack of
culpable negligence on the part of the defendant, but postconviction counsel failed to do so,
instead including only a letter from July 2012, which, as the defendant notes, left “the impression
that [the defendant] waited until after her petition was due to seek materials for her petition.”
Also with regard to the State’s timeliness argument, postconviction counsel failed to include an
affidavit from the defendant in support of her allegations regarding protective custody and
cottage restrictions, instead providing only an unsworn statement from the defendant. In light of
these failings, we cannot overlook the defendant’s additional contention that postconviction
counsel failed to shape and include in the amended petition the defendant’s pro se claim that
some of her statements to the police were subject to suppression, that she informed plea counsel
of this, and that they advised her to plead guilty without first investigating her claim and
attempting to have her statements suppressed. Furthermore, postconviction counsel’s lack of
reasonable assistance to the defendant is also demonstrated by the fact that he failed, in the 16 amended petition, to allege that as a result of plea counsel’s ineffective assistance, the
defendant’s guilty plea was not knowing and voluntary—an allegation that was necessary to
advance the defendant’s claim to an evidentiary hearing (see, e.g., Hall, 217 Ill. 2d at 334-35),
and that clearly constituted a “routine” amendment, particularly in light of the fact that the
defendant, in her initial, pro se petition, contended that her guilty plea was coerced, and in light
of the fact that the State, in its first motion to dismiss, also pointed out postconviction counsel’s
infirmity, which of course further suggested the concomitant need for an amendment.
¶ 24 We must note as well that, as described above, postconviction counsel made these errors
even after being given multiple extensions of time to make his filings in this case—extensions
that presumably were granted to him so he could give the defendant’s case the attention it
deserved. Postconviction counsel’s failure to file a new certificate of compliance with Rule
651(c) when he filed the Amendment—along with the fact that in his original certificate he
claimed he had “examined the entire Report of the Proceedings of Trial” in a case in which there
was no trial, but instead was a common law record containing transcripts of various proceedings
but also voluminous relevant documents that were not transcripts and could not accurately be
said to relate to any purported “Report of the Proceedings of Trial”—does nothing to increase
our confidence that postconviction counsel rendered a reasonable level of assistance to the
defendant in this case.
¶ 25 The State’s position on appeal merits brief commentary as well. The State first argues
that Judge Cruse did not err in dismissing the amended petition and the Amendment on
timeliness grounds. The problem with this argument is that it is premised on the assumption that
the defendant received reasonable assistance of counsel (although, we note, even the State
alludes to postconviction counsel’s unreasonable assistance to the defendant when the State
contends that the “defendant did not even provide her own affidavit” in support of her timeliness 17 defense), and on the assumption that the arguments put forward by postconviction counsel were
the best arguments the defendant could possibly muster on the question of timeliness. As
described in detail above, postconviction counsel did not provide reasonable assistance of
counsel and we decline to speculate with regard to what arguments—and factual support
therefor—will be brought forward on the issue of timeliness by new counsel on remand. See
People v. Russell, 2016 IL App (3d) 140386, ¶ 12; see also People v. Turner, 187 Ill. 2d 406, 416
(1999) (reviewing court “will not speculate whether the trial court would have dismissed the
petition without an evidentiary hearing if counsel had adequately performed his duties under
Rule 651(c)”). The other arguments raised by the State are more appropriate to the defense of an
order rendered by the trial court in the State’s favor following the full development of the facts
via an evidentiary hearing. At this point, postconviction counsel’s failure to provide reasonable
assistance of counsel has made it impossible to determine whether an evidentiary hearing is
warranted, let alone what the facts adduced at such a hearing would be and to what result they
would lead the trial court. In short, at this point, the remainder of the State’s arguments are
premature.
¶ 26 Based upon the foregoing, we need not reach the defendant’s alternative contention: that
this court should remand for a third-stage evidentiary hearing because the record on appeal “does
not rebut the allegation that plea counsel prematurely advised [the defendant] to plead guilty
before receiving an expert report questioning her sanity at the time of the offense.”
¶ 27 III. CONCLUSION
¶ 28 For the above reasons, we reverse the dismissal, at the second stage of proceedings, of the
defendant’s amended petition for postconviction relief, and remand to the circuit court with
directions to allow the defendant the opportunity to replead the postconviction petition with the
assistance of new counsel. 18 ¶ 29 Reversed and remanded with directions.