People v. Hall

2020 IL App (1st) 170671-U

Opinion

2020 IL App (1st) 170671-U

No. 1-17-0671

Order filed September 30, 2020.

Second Division

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. 06 C6 60362 ) KEVIN HALL, ) The Honorable ) Michele Pitman, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court. Justices Pucinski and Cobbs concurred in the judgment.

ORDER

¶1 Held: Postconviction counsel did not provide unreasonable assistance. This court affirmed the judgment of the circuit court and affirmed the second-stage dismissal of defendant’s postconviction petition.

¶2 Following a jury trial, defendant Kevin Hall was found guilty of the predatory criminal

sexual assault of his 10-year-old stepdaughter, N.T., and the trial court sentenced him to 26 years

in prison. Defendant now appeals from the second-stage dismissal of his petition filed under the No. 1-17-0671

Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). He contends

postconviction counsel provided unreasonable assistance in violation of Supreme Court Rule

651(c) (eff. July 1, 2017) by failing to amend his pro se petition, by arguing unpled issues, and

by failing to attach affidavits or other evidence in support of his potential medical defense. We

affirm.

¶3 BACKGROUND

¶4 Defendant was arrested and then charged with the above-stated offense after N.T.

reported defendant had sexually abused her, and a subsequent physical exam plus circumstantial

evidence corroborated her report. The underlying facts of the case are set forth in our decision on

direct appeal and will be repeated here only briefly. The record shows that defendant’s first trial

resulted in mistrial after a hung jury. Evidence at the second trial revealed that on March 3, 2006,

N.T. was home alone with her sister Ke.T. when defendant returned from work and entered the

girls’ bedroom wearing only boxer shorts. Defendant directed Ke.T. to leave, then committed

anal rape against N.T., only ceasing when Ke.T. announced that her mother, Tomasenia, was

home.

¶5 Tomasenia then found defendant leaving N.T.’s bedroom in his boxer shorts and a t-shirt.

On encountering Tomasenia, defendant volunteered that he was not “doing anything” and that he

just “got after” N.T. for walking around naked. Tomasenia found N.T. sitting on the bed wearing

a shirt with a blanket covering her legs and tears in her eyes. Pulling the blanket back,

Tomasenia saw that N.T. was naked below the waist. Several days later, N.T. told her mother

that defendant had sexually abused her on March 3 and also on at least five prior occasions. A

subsequent doctor’s exam by an expert in pediatric sexual trauma revealed N.T. had been

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subjected to repeated anal sexual abuse. The exam also revealed signs and symptoms of

trichomonas, a sexually transmitted infection. N.T. testified about the abuse at trial.

¶6 Defendant’s ex-wife also told the jury about a conversation, which took place after the

incident, in which defendant acknowledged having contact with N.T. on the day in question, but

claimed that it was the child who attempted the anal sex.

¶7 As stated, the jury found defendant guilty as charged, and he was sentenced to 26 years in

prison. Defendant filed a direct appeal in which he argued inter alia that the trial court abused its

discretion in denying him a continuance just before trial to permit further investigation into

whether N.T. had been diagnosed with chlamydia, a sexually transmitted disease (STD). The

trial record revealed that defense counsel specifically notified the court that counsel “had

received information from Tomasenia indicating that N.T. had been diagnosed with three

sexually transmitted diseases, including chlamydia” and maintained that “Tomasenia admitted

that both she and the man she was then involved with tested positive for chlamydia, while

defendant had tested negative for the disease.” People v. Hall, 2012 IL App (1st) 1093574-U, ¶

5. According to defense counsel, Tomasenia relayed that the medical testing for N.T. had been

conducted in Gary, Indiana. This court rejected defendant’s various claims on appeal and

affirmed the trial court’s judgment. People v. Hall, 2012 IL App (1st) 1093574-U.

¶8 About a year later, defendant filed a pro se postconviction petition alleging he was denied

a fair trial and received ineffective assistance of trial counsel. Defendant alleged in relevant part

that defense counsel was aware that N.T., her mother, and her mother’s boyfriend all tested

positive for the same strain of chlamydia, and N.T. also testified positive for another STD.

However, counsel failed to timely procure N.T.’s STD-related medical records, which were

located in Gary, Indiana. Defendant alleged those records may have proven exculpatory because

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he did not test positive for any STDs. The child’s medical records, defendant alleged, would

have given rise to the inference that someone other than defendant was responsible for the sexual

assault on N.T. Defendant attached an unnotarized affidavit stating that he attempted to obtain

N.T.’s medical records reflecting her treatment for chlamydia but was unable to do so without

aid from an attorney.

¶9 Defendant’s petition advanced to the second stage of postconviction proceedings, where

he was assigned a public defender to represent him. Postconviction counsel then filed a written

Rule 651(c) certificate of compliance. The State filed a motion to dismiss, which was granted.

The court found that defendant failed to show any constitutional violation or that his trial counsel

was ineffective. Accordingly, the trial court dismissed defendant’s postconviction petition.

Defendant appealed.

¶ 10 ANALYSIS

¶ 11 The Act provides a three-stage process by which defendants may assert that their

convictions were the result of a substantial denial of their constitutional rights. People v. Boclair,

202 Ill. 2d 89, 99-100 (2002); People v. Burt, 205 Ill. 2d 28, 35-36 (2001). The instant case

involves the second stage of the postconviction process. At this stage, dismissal is warranted

when the defendant’s allegations, liberally construed in light of the trial record, fail to make a

substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 382 (1998).

Any factual allegations not positively rebutted by the record are considered true. People v. Hall,

217 Ill. 2d 324, 334 (2005). Our review at the second stage is de novo. Coleman, 183 Ill. 2d at

389.

¶ 12 Defendant now challenges the second-stage dismissal of his postconviction petition, with

his sole contention being that he was denied reasonable assistance of counsel. Indeed, the right to

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postconviction counsel is a matter of legislative grace, and a postconviction petitioner is only

entitled to a reasonable level of assistance. People v. Perkins, 229 Ill. 2d 34, 42 (2007); People v.

Pinkonsly, 207 Ill. 2d 555, 567 (2003). Rule 651(c) provides that reasonable assistance requires

performance of three duties. Counsel must: (1) consult with the defendant either by mail or in

person to ascertain the contentions of deprivation of constitutional rights; (2) examine the record

of the trial court proceedings; and (3) make any amendments to the pro se petition necessary for

an adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017);

Perkins, 229 Ill. 2d at 42. The purpose of Rule 651(c) is to “ensure that postconviction counsel

shapes the defendant’s claim into a proper legal form and presents them to the court.” People v.

Profit, 2012 IL App (1st) 101307, ¶ 18. In doing so, counsel is not required to advance

nonmeritorious claims on defendant’s behalf. People v. Pendleton, 223 Ill. 2d 458, 472 (2006).

¶ 13 Our review of an attorney’s compliance with a supreme court rule is also reviewed de

novo. People v. Jones, 2011 IL App (1st) 092529, ¶ 19. Where, as here, postconviction counsel

files a Rule 651(c) certificate, a rebuttable presumption is created that postconviction counsel

provided reasonable assistance, and it is then the defendant’s burden to overcome this

presumption by demonstrating that counsel failed to substantially comply with the duties

required by the rule. Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 14 Defendant does not now dispute that his postconviction counsel consulted with him and

examined the trial court proceedings, the first two prongs of Rule 651(c). Rather, he maintains

that counsel failed to make the necessary amendments to his pro se petition in order to

adequately present defendant’s contentions, as required by the third prong of Rule 651(c).

Defendant maintains that postconviction counsel failed to investigate his claims and argues the

record rebuts postconviction counsel’s certification.

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¶ 15 As proof, defendant points out that postconviction counsel did not attach N.T’s medical

records from Gary, Indiana, to his petition, which would have established that his trial counsel

was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Under

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

reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. People v. Dupree, 2018 IL

122307, ¶ 44. A reasonable probability is a probability sufficient to undermine confidence in the

result at trial, and actual prejudice must be shown rather than mere speculation as to prejudice.

People v. Bew, 228 Ill. 2d 122, 135 (2008); People v. Graham, 206 Ill. 2d 465, 476 (2003). In

considering whether trial counsel’s performance was deficient, we indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance, i.e. that the challenged action is considered sound trial strategy. People v. Luna, 2013

IL App (1st) 072253, ¶ 87. A defendant must satisfy both prongs of the Strickland test. People v.

Evans, 186 Ill. 2d 83, 94 (1999). For the reasons to follow, defendant cannot establish that his

postconviction counsel was unreasonable as to this underlying claim set forth in defendant’s pro

se petition.

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¶ 16 Here, the report of proceedings shows that defendant was represented during

postconviction proceedings by Assistant Public Defender (APD) 1 Trenis Jackson, 2 who stated at

a status hearing that he had communicated with defendant several times on the phone and via

mail. APD Jackson noted that based on his review of the records and discussions with defendant,

he was “in the midst of an investigation.” Several months later, APD Jackson stated that he was

speaking with defendant on a “weekly basis” and was “trying to locate an individual” in light of

defendant’s assertion that “the child was taken by her mother to a facility in *** Gary, Indiana.”

Contrary to defendant’s contention otherwise, APD Jackson specifically stated he was

investigating the matter. At the next hearing, APD Jackson noted he was filing his Rule 651(c)

certificate and rested on defendant’s pro se petition.

¶ 17 Given that certificate, as well as the representations in the report of proceedings, we

presume that had the medical records that defendant identified or other supporting evidence been

available to append to defendant’s postconviction petition, his counsel would have appended the

evidence. Thus, the record shows that defendant’s counsel complied, insofar as compliance was

possible, with Rule 651(c). See People v. Johnson, 232 Ill. App. 3d 674, 678 (1992) (noting, a

mere failure to amend the pro se petition is not enough to establish inadequacy of representation

in the absence of a showing that the petition could have been successfully amended). And, absent

1 The report of proceedings reflects that defendant was first represented by APD Maurice Sykes, who noted the postconviction issue as to trial counsel’s conduct and stated that he would obtain trial counsel’s records and also interview counsel to determine whether there was any ineffective assistance. Several months later, APD Sykes informed the court that he had received and reviewed the record. APD Sykes stated he would have “an investigator *** go through the file.” APD Sykes then appeared along with a new APD, Trenis Jackson, and APD Sykes notified the court that he was getting transferred and moving to withdraw. We presume APD Sykes shared with APD Jackson whatever information he learned when representing defendant. See People v. Benford, 31 Ill. App. 3d 892, 895 (1975) (“When the public defender of a county is appointed for an indigent in a criminal case, it is the office of the defender that is appointed. *** In legal contemplation, then, it is the public defender who is in court after he is appointed, although he may appear there through appointed assistants.”) 2 The record identifies him at one point as “Prentice Jackson,” but that appears to be a typo.

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those records, there was no need to notarize defendant’s affidavit, which again alleged that

defendant attempted to obtain the medical records but was unable to. Without the medical

records, defendant also would be hard-pressed to establish his trial counsel was deficient in

representing him, since the records were the basis of his claim.

¶ 18 Regardless, we agree with the State that defendant cannot establish prejudice. At trial,

defendant’s theory of defense was that N.T. had been sexually abused, but not by defendant. Yet,

defendant’s ex-wife’s testimony showed he effectively admitted to sexually abusing N.T. when

defendant “acknowledged that there was some contact between him and his 10-year-old stepchild

on the date in question, but he claimed that it was the child who voluntarily grabbed his penis

and attempted to put it in her anus. Furthermore, the victim’s mother testified that she saw

defendant leave the girls’ room, clad only in his underwear, declaiming that he had not done

anything. When Tomasenia saw the child in her bed, her eyes were watery and only a blanket

covered the fact that she was naked below the waist. When the testimony of these two witnesses

is considered in conjunction with the rather detailed and compelling testimony of the child

victim, it is difficult to accept the defendant’s contention that the evidence against him was close.

More properly put, it was overwhelming.” Hall, 2012 IL App (1st) 1093574-U, ¶ 37.

¶ 19 Thus, even assuming defendant had attached records showing that N.T. had chlamydia,

along with her mother and her mother’s boyfriend, that evidence still did not establish

defendant’s innocence in light of the overwhelming evidence of his guilt delineated above.

Defendant also has not provided on appeal any explanation of chlamydia and how it is

transmitted, which renders his argument at best speculative and which significantly weakens any

prejudice claim. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (the argument must contain the

contentions of the appellant and the reasons therefor with citation to authorities); People v.

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Robinson, 2013 IL App (2d) 120087, ¶ 15 (an appellant must present clearly defined issues

supported by relevant authority, and the appellate court is “not simply a repository in which

appellants may dump the burden of argument and research.”). For all the reasons stated,

defendant cannot establish there is a reasonable probability that the proffered evidence would

have undermined confidence in the jury’s verdict. Accordingly, defendant cannot establish a

substantial violation of his constitutional rights, as required to advance his second-stage

postconviction petition.

¶ 20 The cases cited by defendant do not compel a different result. In People v. Turner, 187

Ill. 2d 406, 412-17 (1999), unlike the case at bar, there was no indication that a Rule 651(c)

certificate was filed, and the supreme court detailed several “omissions and failures” that led it to

conclude that postconviction counsel’s conduct amounted to “a total failure of representation.”

Counsel in that case had not consulted with petitioner, examined pertinent portions of the record,

or amended the pro se petition. Likewise, in People v. Suarez, 224 Ill. 2d 37 (2007),

postconviction counsel failed to file a 651(c) affidavit, and the record did not show compliance

with 651(c). In that context, the Suarez court held that remand was required regardless of

whether the claims raised in the petition were meritorious; the court found that noncompliance

with the rule could not be excused on the basis of harmless error. Suarez, 224 Ill. 2d at 51-52.

Here, as stated, counsel’s Rule 651(c) certificate gave rise to a rebuttable presumption that he

performed the duties required by the rule. And, contrary to defendant’s claim otherwise, in this

case, whether the pro se allegations had merit was “crucial to determining whether counsel acted

unreasonably by not filing an amended petition.” Profit, 2012 IL App (1st) 101307, ¶¶ 22-23

(distinguishing Suarez on similar grounds). We have found that they do not, and defendant has

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failed to fulfill his burden of demonstrating that counsel did not comply with the duties required

by Rule 651(c). See Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 21 As a result, we also reject defendant’s contention that postconviction counsel was

required to amend his petition to assert ineffective assistance of appellate counsel and actual

innocence. Defendant notes postconviction counsel argued those claims at the hearing on the

State’s motion to dismiss the petition but did not amend defendant’s pro se petition to reflect

those claims. Defendant, however, fails to explain how those claims were necessary to

adequately present his contentions already raised in his pro se postconviction, most of which

were already raised on direct appeal or involved evidence outside the trial record. See Ill. S. Ct.

R. 341(h)(7) (eff. May 25, 2018); Robinson, 2013 IL App (2d) 120087, ¶ 15; see also People v.

Kirklin, 2015 IL App (1st) 131420, ¶ 130 (matters not supported by the trial record are not

appropriately raised on direct appeal). That renders an ineffective assistance of appellate counsel

claim meaningless. As for the actual innocence claim, there was no new, material,

noncumulative evidence that was so conclusive it would have changed the result on retrial. See

People v. Tyler, 2015 IL App (1st) 123470, ¶ 196 (noting the requirements for an actual

innocence claim). Fulfillment of the third obligation under Rule 651(c) does not require

postconviction counsel to advance frivolous or spurious claims on defendant’s behalf. People v.

Greer, 212 Ill. 2d 192, 205 (2004). In addition, while postconviction counsel may raise

additional issues if he so chooses, there is no obligation to do so. Pendleton, 223 Ill. 2d at 476;

see also People v. Rials, 345 Ill. App. 3d 636, 641 (2003) (“ ‘[P]ostconviction counsel is not

required to comb the record for issues not raised in the defendant’s pro se post-conviction

petition.’ ”).

¶ 22 CONCLUSION

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¶ 23 For all the reasons stated, defendant’s contention that his postconviction counsel was

unreasonable in representing him fails. We thus affirm the second-stage dismissal of his

¶ 24 Affirmed.

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