People v. Hardin

2024 IL App (4th) 221007-U

• Court: Appellate Court of Illinois
• Decided: January 12, 2024
• Docket: 4-22-1007
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 221007-U This Order was filed under FILED January 12, 2024 Supreme Court Rule 23 and is NO. 4-22-1007 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County MICHAEL D. HARDIN, ) No. 07CF4590 Defendant-Appellant. ) ) Honorable ) Debra D. Schafer, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and DeArmond concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding postconviction counsel complied with his obligations under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).

¶2 On October 24, 2013, defendant, Michael D. Hardin, filed a pro se postconviction

petition alleging his constitutional rights were violated in numerous ways. The trial court, after

reviewing defendant’s petition, found it stated the gist of a constitutional claim and appointed

counsel to represent him. Thereafter, postconviction counsel filed a supplemental petition which

incorporated but did not amend defendant’s claims. The State filed a motion to dismiss, which the

court granted. Defendant timely appealed, arguing postconviction counsel provided unreasonable

assistance because postconviction counsel failed to amend defendant’s pro se claims “to provide

factual basis and documentary support” necessary to avoid dismissal. We affirm.

¶3 I. BACKGROUND ¶4 In February 2010, defendant was convicted of first degree murder (720 ILCS

5/9-1(a)(2) (West 2006)) (count I) and aggravated battery with a firearm (id. § 12-4.2(a)(1)) (count

II). The trial court sentenced defendant to 35 years in prison on count I, plus a 25-year firearm

enhancement (See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)) and 15 years in prison on count II,

plus a 25-year firearm enhancement (id.), for an aggregate 100 years in prison. On direct appeal,

the Second District affirmed defendant’s convictions but vacated the 25-year firearm enhancement

imposed on count II. See People v. Hardin, No. 2-11-1323 (2013) (unpublished summary order

under Illinois Supreme Court Rule 23(c)(2)). As such, we include only those facts necessary to

address the issues presented to this court.

¶5 Defendant filed a pro se postconviction petition in October 2013, alleging his

constitutional rights were violated in the following ways, (1) he was convicted and sentenced for

“unconstitutional charges;” (2) trial counsel, posttrial counsel, and appellate counsel provided

ineffective assistance when each of them allowed him to be incarcerated for “unconstitutional

charges;” (3) the State committed a Brady violation (See Brady v. Maryland, 373 U.S. 83 (1963))

when it failed to discover and disclose the original surveillance video from the night of the incident;

(4) trial counsel provided ineffective assistance by failing to file a Brady motion, failing to hire an

expert witness to challenge the validity of the surveillance video presented by the State, failing to

impeach one of the victims, Bryon Sturdivant, at trial, failing to file a motion to dismiss based on

speedy trial violations, and allowing defendant’s sentence to be improperly enhanced by a firearm

enhancement which did not apply; (5) posttrial counsel provided ineffective assistance for failing

to argue defendant’s right to a speedy trial was violated and allowing defendant’s sentence to be

improperly enhanced by a firearm enhancement which did not apply; and (6) appellate counsel

provided ineffective assistance by failing to raise the foregoing issues on appeal. The sole exhibit

-2- attached to defendant’s petition was a copy of section 5-5-1 of the Unified Code of Corrections

(730 ILCS 5/5-5-1 (West 2012)) with handwritten notes on the page.

¶6 The trial court, after reviewing defendant’s pro se petition, found it stated the gist

of a constitutional claim and appointed counsel to represent him.

¶7 After numerous continuances, postconviction counsel filed a supplemental petition

and an Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) certificate in March 2021. Counsel’s

supplemental petition incorporated, but did not amend, all allegations set forth in defendant’s

pro se petition. In addition, the supplemental petition raised an additional four claims:

(1) defendant’s convictions and sentences violated the one-act, one-crime doctrine, (2) defendant’s

consecutive sentences were unconstitutional, (3) defendant’s aggregate sentence violated the

proportionate penalties clause, and (4) appellate counsel provided ineffective assistance for failing

to raise the foregoing issues on appeal. Counsel’s Rule 651(c) certificate stated:

“1. I have consulted with the petitioner by phone, mail, electronic means or

in person to ascertain his or her contentions of deprivation of constitutional rights;

and

2. I have examined the record of the proceedings at the trial or plea of guilty,

including (a) the common law record; and/or (b) the reports of the proceedings;

and/or (c) the trial exhibits, and

3. I have made any amendments to the petition filed pro se that are

necessary for an adequate presentation of petitioner’s contentions; and

4. To the extent that the petition or amended petition is based on facts that

do not appear of record, I have attached any affidavits and/or evidentiary support

necessary for and adequate presentation of petitioner’s contentions.”

-3- The State filed a motion to dismiss.

¶8 In November 2021, the trial court held a hearing on the State’s motion to dismiss.

Before beginning his argument against dismissal, postconviction counsel stated, “I want to point

out again that [defendant’s] pro se petition I adopted at his insistence. That was in order to move

the case along. But I do agree that the arguments that he made in his petition, some did have merit.”

Counsel never specified which arguments “have merit.” Later in his argument, counsel again

referenced the claims in defendant’s pro se petition:

“As far as his pro se petition goes, I think [defendant] did a good job of

raising and explaining his different arguments in the petition. As I said earlier,

[defendant] asked me to adopt this, which I eventually did, but I don’t think that

there’s anything that I could add to his arguments that would make them any

more—that would make them any more—trying to find the right word for it—I

guess make it any more relevant to the Court’s decision.

So as far as his pro se conviction petition, I’m standing on the arguments

that [defendant] raises in that and his explanations for them.”

¶9 Following the parties’ arguments, the trial court granted the State’s motion to

dismiss. With respect to the claim at issue in this appeal that trial counsel was ineffective for failing

to impeach one of the victims, Bryon Sturdivant, at trial, the court found the claim was “a mere

assertion *** without any further description of the subject or subjects about which Mr. Sturdivant

should have been impeached” and thus could not survive a motion to dismiss.

¶ 10 This timely appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant contends postconviction counsel provided unreasonable

-4- assistance by adopting defendant’s pro se claims without any necessary amendments. Defendant

argues Rule 651(c) required postconviction counsel to amend defendant’s pro se claims “to

adequately shape and support, and present to the court [defendant’s] claim of ineffective assistance

of trial counsel for failing to properly impeach Sturdivant.” The State responds defendant has failed

to rebut the presumption of reasonable assistance created by postconviction counsel’s Rule 651(c)

certificate. For the reasons that follow, we agree with the State and affirm.

¶ 13 A. Right to Counsel in Postconviction Proceedings

¶ 14 Proceedings brought under the Post-Conviction Hearing Act (725 ILCS 5/122-1

et seq. (West 2022)) have three distinct stages. People v. Allen, 2015 IL 113135, ¶ 21. “At the first

stage, the circuit court must review the petition within 90 days of its filing and determine whether

the petition states the gist of a constitutional violation or is either frivolous or patently without

merit.” People v. Bailey, 2017 IL 121450, ¶ 18. If, after review, the court determines the petition

states the gist of a constitutional claim, it shall advance the petition to second stage proceedings.

People v. Greer, 212 Ill. 2d 192, 204 (2004). “At the second stage, counsel may be appointed to

an indigent defendant and the State may file a motion to dismiss or an answer to the petition.”

People v. Domagala, 2013 IL 113688, ¶ 33.

¶ 15 “Once counsel is appointed for an indigent defendant, he or she is entitled only to

the level of assistance guaranteed by the [Post-Conviction Hearing] Act.” (Emphasis omitted.)

Greer, 212 Ill. 2d at 203. The Illinois Supreme Court “has determined that to be a ‘reasonable’

level of assistance.” People v. McNeal, 194 Ill. 2d 135 (2000). “Toward that end, Supreme Court

Rule 651(c) sets out certain requirements that counsel must fulfill in representing post-conviction

petitioners.” Id.

¶ 16 B. Compliance with Rule 651(c)

-5- ¶ 17 Pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), postconviction

counsel must file a certificate stating:

“[He or she] has consulted with petitioner by phone, mail, electronic means or in

person to ascertain his or her contentions of deprivation of constitutional rights, has

examined the record of the proceedings at the trial, and has made any amendments

to the petitions filed pro se that are necessary for an adequate presentation of

petitioner’s contentions.”

Once counsel files a certification stating he or she has complied with the duties outlined in Rule

651(c), there is “a rebuttable presumption that counsel provided the petitioner with a reasonable

level of assistance, absent an affirmative showing in the record.” People v. Urzua, 2023 IL 127789,

¶ 54.

¶ 18 If a defendant contends counsel did not comply with Rule 651(c) even though a

certificate was filed, “[t]he defendant bears the burden of *** showing that postconviction counsel

did not substantially comply with the strictures of the rule.” People v. Addison, 2023 IL 127119,

¶ 21. One of the ways a defendant may meet this burden is by “demonstrating that postconviction

counsel did not make all necessary amendments to the pro se petition.” Id. This court reviews

whether an attorney sufficiently complied with Rule 651(c) de novo. People v. Blanchard, 2015

IL App (1st) 132281, ¶ 15.

¶ 19 C. This Case

¶ 20 In this case, postconviction counsel filed a Rule 651(c) certificate, stating,

inter alia, he “made any amendments to the petition filed pro se that are necessary for an adequate

presentation of petitioner’s contentions” and “attached any affidavits and/or evidentiary support

necessary for an adequate presentation of petitioner’s contentions.” Defendant does not dispute

-6- counsel filed a Rule 651(c) certificate or claim counsel’s certificate is invalid. Therefore, a

rebuttable presumption exists that counsel provided defendant reasonable assistance. Urzua, 2023

IL 127789, ¶ 54.

¶ 21 Defendant argues the record contradicts postconviction counsel’s representations

in the Rule 651(c) certificate. Specifically, defendant contends counsel “failed to provide any

affidavit or documentary evidence to substantiate that Sturdivant made any alleged prior

inconsistent statements that trial counsel failed to use to cross-examine Sturdivant at trial.”

However, as the State correctly points out, “[d]efendant cites nothing in the record that shows that

his appointed postconviction counsel could have amended the pro se petition to attach evidence

that Sturdivant actually made prior inconsistent statements with which he was not impeached at

trial.” Moreover, postconviction counsel made an assertion on the record that “[he did not] think

that there’s anything that [he] could add to [defendant’s] arguments that would make them any

more *** relevant to the Court’s decision.” This is not a case where the record is silent as to what

decisions postconviction counsel made with respect to defendant’s pro se petition. Postconviction

counsel specifically stated he adopted defendant’s petition at defendant’s insistence and while he

felt some of the arguments had merit, there were no amendments he needed to make to properly

present the issues to the trial court.

¶ 22 It is well settled that “[f]ulfillment of the third obligation under Rule 651(c) does

not require postconviction counsel to advance frivolous or spurious claims on defendant’s behalf.”

Greer, 212 Ill. 2d at 205. An argument is frivolous if it “simply alleges nonfactual and nonspecific

assertions that merely amount to conclusions.” (Internal quotation marks omitted.) People v.

Delgado, 2022 IL App (2d) 210008, ¶ 18. Further, in cases where counsel files a Rule 651(c)

certificate, “[a] court may reasonably presume postconviction counsel made a concerted effort to

-7- obtain evidence in support of postconviction claims, but was unsuccessful.” People v. Wallace,

2016 IL App (1st) 142758, ¶ 27. Defendant has pointed to nothing in the record to rebut this

reasonable presumption.

¶ 23 Instead of pointing to specific facts to rebut the presumption of postconviction

counsel’s reasonable assistance, defendant relies on Urzua, 2023 IL 127789, stating, “[I]f

postconviction counsel believed that the failure-to-impeach claim had no merit, he should have

filed an amended petition withdrawing the claim.” Defendant’s reliance on Urzua is misplaced. In

Urzua, the Illinois Supreme Court stated, “[U]nder Greer, postconviction counsel is ethically

obligated to withdraw if he or she believes there are no meritorious issues.” (Emphasis added.) Id.

¶ 37. In this case, postconviction counsel noted “some of” defendant’s claims had merit. This was

not a situation in which counsel did not believe any of defendant’s claims had merit. Instead,

counsel believed some of defendant’s claims had merit and chose to incorporate all of defendant’s

claims into his supplemental petition.

¶ 24 Furthermore, counsel in Urzua made an affirmative misstatement on the record

about the requirements of a postconviction petition. Based on this, the court held, “retained

counsel’s failure to amend the petition or the attached unnotarized statement and counsel’s

misstatement of the Act’s affidavit requirements during argument on the State’s motion to dismiss

clearly rebutted retained counsel’s Rule 651(c) certificate’s presumption of reasonable assistance.”

(Emphasis added.) Id. ¶ 64. It was the combination of counsel’s failure to amend and counsel’s

misunderstanding of the requirements of the Act which rebutted counsel’s presumption of

reasonable assistance. In this case, there was no misstatement of the requirements by

postconviction counsel. For those reasons, Urzua is distinguishable from defendant’s case.

¶ 25 Defendant also relies on People v. Turner, 187 Ill. 2d 406 (1999), to support his

-8- argument postconviction counsel did not provide reasonable assistance because he failed to amend

defendant’s claim. However, Turner is clearly distinguishable from this case. First, it is not clear

counsel in Turner filed a Rule 651(c) certificate. As discussed above, the filing of a Rule 651(c)

certificate provides a rebuttable presumption that counsel provided reasonable assistance. In this

case, a rebuttable presumption exists, and it is defendant’s burden to overcome it. Further, counsel

in Turner did not file a supplemental petition and simply stood on the defendant’s pro se petition.

Id. at 409. In doing so, counsel failed to include multiple potentially meritorious claims, such as a

claim of ineffective assistance of appellate counsel for failing to raise issues on appeal. Id. at 412-

13. While the court in Turner did note counsel failed to make necessary amendments and provide

evidentiary support for the petition, it was the totality of the circumstances that gave rise to the

determination counsel provided unreasonable assistance. Id. at 412-14. Here, defendant presents

nothing more than a singular argument, without support, counsel should have amended his pro se

claim of ineffective assistance of counsel.

¶ 26 Because defendant has pointed to nothing which rebuts the presumption of

postconviction counsel’s reasonable assistance, we conclude postconviction counsel strictly

complied with Rule 651(c) and provided reasonable assistance.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we affirm the judgment of the trial court.

¶ 29 Affirmed.

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