People v. Jenkins

2023 IL App (1st) 192512-U

• Court: Appellate Court of Illinois
• Decided: February 27, 2023
• Docket: 1-19-2512
• Status: Unpublished

Opinion

2023 IL App (1st) 192512-U No. 1-19-2512 First Division February 27, 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 ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 12172 ) KIEANTAE JENKINS, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Justice Hyman concurred in the judgment. Justice Lavin dissented.

ORDER

¶1 Held: The circuit court’s second-stage dismissal of defendant’s postconviction petition is reversed where postconviction counsel failed to provide reasonable assistance pursuant to Supreme Court Rule 651(c) by failing to raise the issue of trial counsel not discussing the State’s plea offer with the defendant. The matter is remanded to the circuit court for second-stage proceedings with new postconviction counsel for the defendant.

¶2 Defendant Kieantae Jenkins appeals from an order of the circuit court of Cook County

granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction No. 1-19-2512

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant contends his

appointed postconviction counsel failed to provide reasonable assistance because counsel did not

amend the pro se petition by: (1) adding an allegation that trial counsel rendered ineffective

assistance during plea bargaining; (2) adding an argument that defendant was not culpably

negligent for the untimely filing of his petition; and (3) obtaining new affidavits from defendant

and his mother to support these additional arguments. We agree with the defendant and reverse

and remand the matter for new second stage proceedings with new postconviction defense counsel.

¶3 BACKGROUND

¶4 In May 2007, defendant, who was 16 years old, was charged with three counts of attempted

first degree murder, one count of aggravated battery with a firearm, one count of attempted armed

robbery, and four counts of aggravated unlawful use of a weapon (AUUW). The charges arose

after defendant shot Erin Lacy in the shoulder and once in each leg during an attempted armed

robbery as Lacy was walking home from a store.

¶5 The public defender (“PD 1”) was initially appointed to represent defendant. On July 20,

2007, private counsel, Sam Adam, Jr., began representing defendant. On December 27, 2007, the

parties agreed to a continuance for a plea conference pursuant to Illinois Supreme Court Rule 402

(eff. July 1, 1997). The case was repeatedly continued over the next several months with counsel

stating he was waiting for an offer. On May 5, 2008, counsel requested a conference with the State.

The prosecutor replied that she was not ready for a conference and requested a continuance. On

the next court date, defense counsel did not appear. The transcripts for the next two court dates are

not included in the record. The record contains no further mention of a plea offer or conference.

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¶6 On June 13, 2008, Adam withdrew and the second public defender (“PD 2”) was appointed

to represent defendant. On August 7, 2008, PD 2 withdrew and private counsel Tony Thedford

began representing defendant. Thedford represented defendant throughout the remainder of the

trial proceedings and sentencing. Following an April 2009 jury trial, defendant was found not

guilty of attempted first degree murder but guilty of aggravated battery with a firearm and

attempted armed robbery. The State nol-prossed the AUUW charges. The trial court sentenced

defendant to consecutive prison terms of 20 years for aggravated battery and 6 years for attempted

armed robbery. After defendant moved to reduce his sentence, the trial court ordered that the

sentences would run concurrently rather than consecutively.

¶7 On direct appeal, defendant argued that his 20-year sentence was excessive and that his

sentence for attempted armed robbery was void because the trial court failed to conduct a hearing

to determine whether defendant should be sentenced as an adult in criminal court on that charge.

On March 24, 2011, this court rejected those arguments and affirmed defendant’s convictions.

People v. Jenkins, No. 1-09-1963 (2011) (unpublished order under Supreme Court Rule 23).

Defendant did not file a petition for leave to appeal with the Illinois Supreme Court.

¶8 On May 17, 2013, defendant filed the instant pro se postconviction petition, in which he

raises six issues. The first page is a notarized form entitled “PRO SE POST-CONVICTION

PETITION” on which defendant filled in the blanks and swore to the truth of the facts therein. A

preprinted statement provides, “[t]his petition was mailed to the clerk of the circuit court within

the time frame enumerated under 725 ILCS 5/122-1.” On blank lines below the statement

defendant typed, “725 ILCS 5/122-1 does not clearly identify the deadline for filing of a post-

conviction petition when a PLA was not filed.”

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¶9 The second page of defendant’s petition is a notarized affidavit form on which defendant

averred his first issue as follows:

“My mother, Nefreterie Jenkins, stated that at the begining [sic] of trial, counsel informed

her that the state had offered a 15 year sentence in exchange for plea of guilt, but he

misunderstood how this offer was made and whether it would be at 85%. He never advised

me of this offer, directly affecting the consequences of the proceedings.”

However, he did not include in his petition any specific allegation that his trial counsel provided

ineffective assistance during plea bargaining.

¶ 10 His second issue is that 725 ILCS 5/122-1(c) did not set out the filing deadline for

petitioners who did not file a petition for leave to appeal. However, defendant failed to include any

argument that his late filing of his petition was not due to his culpable negligence, despite raising

this ambiguity. Defendant now argues that postconviction counsel provided ineffective assistance

by failing to amend his pro se petition to raise either the ineffective assistance of trial counsel in

failing to convey the plea offer, or that defendant’s untimely filing was not due to his culpable

negligence.

¶ 11 The remainder of defendant’s petition consists of typed pages in which he raised his third,

fourth, fifth, and sixth issues. His third issue is his allegation that his trial counsel rendered

ineffective assistance because counsel failed to call witnesses or present evidence at trial.

Defendant asserted that an “exculpatory witness” would have changed the outcome of the trial.

Defendant, however, did not name any individuals counsel should have called as witnesses, nor

did he state what evidence counsel should have presented. Defendant further argued that counsel

failed to preserve specific issues of error in his motion for a new trial, and instead, “only provided

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generalities.” Defendant did not specify what issues counsel should have raised in the posttrial

motion. Defendant stated that counsel failed to defend against the charges and that his trial was

“the functional equivalent of a guilty plea.”

¶ 12 His fourth issue is that his appellate counsel rendered ineffective assistance because

counsel raised “weaker issues” on appeal and failed to investigate and raise “stronger issues.”

Defendant claimed counsel should have raised an identity issue. He also claimed counsel should

have argued the police lacked probable cause to arrest him and that the trial court erred when it

denied his motion to suppress identification. Defendant acknowledged these issues were not

preserved for appeal but claimed a “constitutional exception” to the waiver rule applied.

¶ 13 His fifth issue is his allegation that the trial court erred when it denied his motion for a new

trial because his identity was admitted in error. Defendant claimed trial counsel did not properly

draft the posttrial motion. He also claimed appellate counsel should have pursued the issue.

Defendant argued that the State failed to prove beyond a reasonable doubt that he was the shooter

because Lacy’s testimony identifying him was unreliable, no gun was recovered, and a gunshot

residue test indicated defendant had no trace of gun powder on his hands immediately after the

shooting.

¶ 14 Defendant’s sixth issue is his allegation that his sentence was excessive and imposed as

punishment for exercising his constitutional right to a jury trial. Defendant analogized his case to

People v. Dennis, 28 Ill.App.3d 74 (1st Dist. 1975). Defendant illustrated that in Dennis, the

defendant filed a pro se postconviction petition alleging he was punished for exercising his

constitutional right to a jury trial where he was offered a sentence of 2 to 6 years during plea

negotiations, then sentenced to a term of 40 to 80 years following a jury trial. Id. at 75. The circuit

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court dismissed Dennis’ postconviction petition. Id. at 77. On appeal, this court reversed the

dismissal and reduced Dennis’ sentence to a term of 6 to 18 years. Id. at 79. While quoting the

Dennis court in the instant petition, defendant stated, inserting in bolded text below what appears

to be the plea offer he complains was never discussed with him:

“the appellate court of the First District has held ‘that a “reasonable inference” of a

constitutional deprivation may be drawn where a great disparity exists between the

sentenced [sic] offered (15 years) and one imposed (20 & 6 @ 85%) at the conclusion of

a jury trial.’ ” See id. at 78.

Within this quote, defendant inserted, in bolded parentheses, what appears to be the alleged plea

offer he received and the sentence imposed following his jury trial. Defendant was allegedly

offered a 15-year sentence in the face of a potential sentence of 30 to 65 years.

¶ 15 Defendant further argued in his petition, “[j]ust as the trial court in Dennis failed to provide

any reasoning for imposing a significantly longer sentence than what was offered during plea

negotiations, here the trial judge failed to explain why the sentence was 11 years longer than what

was offered during negotiations.” Defendant then stated, “THE RECORD CONTAINS NO

INDICATION – HOWEVER – AS REQUIRED BY THE ACT THIS CLAIM IS

SUPPORTED BY AN AFFIDAVIT.”

¶ 16 The circuit court appointed the public defender to represent defendant and advanced his

petition to second-stage proceedings under the Act. On October 23, 2013, a new assistant public

defender (“PD 3”) was named as defendant’s postconviction counsel. On August 7, 2014, PD 3

informed the court that he had a conversation with defendant and had finished reviewing the

record.

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¶ 17 On March 5, 2015, another public defender (“PD 4”) informed the court that she had

acquired defendant’s case from PD 3. PD 4 served as defendant’s postconviction counsel for the

remainder of the case. PD 4 stated that she was trying to locate and contact four witnesses who

were “pertinent to this postconviction based upon the petition that was filed.”

¶ 18 On May 7, 2015, PD 4 stated that she had received the trial file from private counsel who

represented defendant at trial. She scheduled a conference call with that attorney to “peruse and

assess” the allegations raised by defendant in his postconviction petition.

¶ 19 On July 9, 2015, PD 4 stated that she was “in the process of procuring the affidavits and

the exhibits to supplement Mr. Jenkins’ petition.”

¶ 20 On April 28, 2016, PD 4 stated that she was “attempting to procure the affidavit from

family members regarding Mr. Jenkins’ allegations in his post-conviction petition.”

¶ 21 On June 30, 2016, PD 4 stated that she and the State had agreed to a continued date to allow

her “to procure the affidavit from Mr. Jenkins’ mother.”

¶ 22 On August 11, 2016, PD 4 requested a continuance to complete her 651(c) certificate. She

further stated, “I have an affidavit that I’m trying to prepare from a witness.”

¶ 23 On October 13, 2016, PD 4 stated that she had almost completed her requirements under

Rule 651(c), but a couple issues arose since she reviewed the trial file from trial counsel.

¶ 24 On December 15, 2016, PD 4 stated that she had intended to file her 651(c) certificate that

day but requested a continuance to “obtain the affidavit I need.”

¶ 25 On February 23, 2017, PD 4 stated, “I have not procured the affidavit from the witness that

the defendant is relying on to support his constitutional violation.”

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¶ 26 On June 14, 2017, PD 4 stated that she met with defendant at the prison the previous day.

She requested a continuance to file a “supplement” and her 651(c) certificate.

¶ 27 On November 1, 2017, PD 4’s colleague appeared on her behalf and stated that she was

still waiting for an affidavit.

¶ 28 On February 21, 2018, PD 4 stated, “I’m still in the process of the investigation attempting

to secure the affidavit necessary for me to file my 651C.”

¶ 29 On April 10, 2018, PD 4 stated, “I have completed my investigation and my research. I’m

just waiting on an affidavit which is kind of difficult for me to obtain, but I’m in the process with

my investigator.” She requested a date to complete her filing with a 651(c) certificate.

¶ 30 On May 10, 2018, PD 4’s colleague appeared on her behalf and stated that she was still

attempting to obtain “some affidavits” before filing her 651(c) certificate.

¶ 31 On October 25, 2018, PD 4’s colleague stated that she had transferred to another unit in

the public defender’s office and requested a continuance for another attorney to be assigned to

represent defendant. The record does not indicate that another attorney was ever assigned to

defendant’s case.

¶ 32 On December 5, 2018, PD 4’s colleague appeared and filed PD 4’s 651(c) certificate on

her behalf. The circuit court found the certificate inadequate.

¶ 33 On January 15, 2019, PD 4 appeared in court and filed her 651(c) certificate. In her

amended certificate, counsel stated that she consulted with defendant by phone and in

correspondence to ascertain his contentions of deprivations of his constitutional rights, and she

examined the pertinent portions of the report of proceedings and common law record from

defendant’s case. Counsel further stated, “I have examined the Petitioner’s, pro se postconviction

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petition. There are no required amendments to his petition for a necessary and adequate

presentation of Petitioner’s contentions.”

¶ 34 On May 22, 2019, the State filed a lengthy written motion to dismiss defendant’s

postconviction petition. Initially, the State asserted that defendant’s petition was untimely filed

and that he failed to explain the reason for his delay. The State acknowledged that when defendant

filed his pro se petition in 2013, the Act did not state the time frame for filing a petition where a

defendant filed a direct appeal but did not file a petition for leave to appeal with the Illinois

Supreme Court or a petition for certiorari with the United States Supreme Court. The State pointed

out that our supreme court addressed this issue in People v. Johnson, 2017 IL 120310 (Jan. 20,

2017), and held that a postconviction petition must be filed within six months of the date for filing

a petition for leave to appeal. Id. ¶ 24. The State calculated that defendant’s petition was due by

November 25, 2011, and thus, his petition filed on May 17, 2013, was nearly 18 months late. The

State argued that because defendant filed his petition late and did not argue that his untimely filing

was not due to his culpable negligence, the circuit court should dismiss his petition.

¶ 35 Alternatively, the State argued that defendant failed to make a substantial showing that

either his trial or appellate counsel were ineffective, or that he was penalized for demanding a jury

trial. The State argued that defendant’s claims that his trial counsel was ineffective for failing to

call an exculpatory witness or preserve issues for appeal lacked the required specificity, and

therefore, were without merit. It further argued that defendant’s claim that counsel failed to subject

his case to meaningful adversarial testing was refuted by the record which showed counsel

conducted a “very robust” defense. The State also argued there was no merit to defendant’s claims

that his appellate counsel was ineffective for failing to raise issues on direct appeal regarding

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identification and probable cause for his arrest because neither issue had merit. In addition, the

State argued there was no merit to defendant’s allegation that the trial court erred when it denied

his motion for a new trial because those claims challenged the sufficiency of the evidence, which

was not a cognizable claim under the Act.

¶ 36 Finally, the State argued there was no merit in defendant’s allegation that his sentence was

punishment for exercising his right to a jury trial. The State asserted that this issue was forfeited

because it was not raised on direct appeal. Alternatively, the State argued defendant was unable to

show that the trial court participated in the formulation of the plea offer and that there was a great

disparity between the sentence offered and the one received. The State pointed out that the record

was silent as to any offer made to defendant. It noted that the only indication an offer was made

was from defendant’s affidavit which indicated the State made the offer, not the trial court.

¶ 37 PD 4 requested a continuance to file a reply to the State’s motion.

¶ 38 On June 27, 2019, PD 4 stated that she reviewed the State’s motion to dismiss and had

spoken with defendant. She further stated, “we are not filing a reply.”

¶ 39 On October 7, 2019, PD 4 stated that she was standing on defendant’s petition without

further argument. The State also rested on its motion to dismiss without further argument. The

court stated that it would read the pleadings and schedule a date for its ruling. While discussing

the scheduling, PD 4 stated that she was working from 11 p.m. to 7 a.m. in her current unit and

checked her schedule to find a date when she was available to attend court during the day.

¶ 40 On November 12, 2019, the circuit court granted the State’s motion to dismiss defendant’s

postconviction petition. Initially, the court found “[a]s a preliminary matter” that defendant’s

petition was untimely. The court acknowledged that the Act did not specify a deadline for

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defendant to file his petition when he did not file a petition for certiorari or leave to appeal but

noted the supreme court’s holding in Johnson, which was filed in 2017, that a postconviction

petition must be filed within six months of the date for filing a petition for certiorari or leave to

appeal. The court found that defendant’s petition was filed nearly a year and a half late and that he

had not provided any explanation for his untimeliness.

¶ 41 Thereafter, in a lengthy written order, the circuit court thoroughly addressed each of

defendant’s substantive claims in detail, separating them into issues and sub-issues. At the end of

its analysis for each issue and sub-issue, the court stated that the State’s motion to dismiss that

particular claim was granted.

¶ 42 When discussing defendant’s final allegation, that his sentence was punishment for

exercising his right to a jury trial, the court referred to defendant’s affidavit as his “proof of a plea

offer.” The court quoted defendant’s averment that his mother had stated that counsel informed

her at the beginning of trial that the State had offered a 15-year sentence in exchange for a guilty

plea. The court found the claim forfeited because defendant could have raised it on direct appeal.

Alternatively, the court found the allegation conclusory. The court found that defendant failed to

demonstrate that the State ever made a pretrial plea offer. The court pointed out that defendant did

not allege that he would have accepted the plea offer had counsel advised him of it. The court

found that it was “left to indulge in complete speculation about potential, alternative results,”

which was an unworkable task. The court stated that it was unclear if plea discussions would even

have been available to defendant, finding that aside from defendant’s self-serving testimony, there

was no evidence that the State ever even extended or would have contemplated extending a plea

offer. Further, ascertaining whether a plea offer would have been more advantageous for defendant

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was problematic because plea agreements often turn on a variety of factors and peculiar

circumstances. The court noted that defendant’s sentence was only five years more than the alleged

plea offer and found no great disparity between a 15-year and 20-year sentence. Accordingly, the

court found no merit in defendant’s claim. The circuit court concluded that all of defendant’s

allegations were frivolous and patently without merit, and on that basis, granted the State’s motion

to dismiss his postconviction petition.

¶ 43 On appeal, defendant contends PD 4 failed to provide reasonable assistance as his

postconviction counsel because she did not amend his pro se petition. Defendant contends she

should have added an allegation to his petition asserting that trial counsel rendered ineffective

assistance during “plea bargaining” when counsel failed to notify defendant of the 15-year plea

offer referred to in his affidavit. Defendant also argues PD 4 should have added an argument that

defendant was not culpably negligent for the untimely filing of his petition. Finally, defendant

claims she should have obtained new affidavits from him and his mother to support these two

additional arguments.

¶ 44 The State responds that by filing the 651(c) certificate, postconviction counsel invoked the

rebuttable presumption that she provided defendant with reasonable assistance. The State argues

that defendant failed to meet his burden to overcome that presumption where the record supports

the presumption and refutes defendant’s arguments against postconviction counsel.

¶ 45 ANALYSIS

¶ 46 Standard of Review

¶ 47 We review the circuit court’s dismissal of a postconviction petition without an evidentiary

hearing de novo. People v. Cotto, 2016 IL 119006, ¶ 24. The interpretation of a supreme court rule,

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including whether counsel fulfilled her duties under Rule 651(c), is also reviewed de novo. People

v. Suarez, 224 Ill. 2d 37, 41-42 (2007). The reviewing court may affirm the circuit court’s dismissal

of a postconviction petition on any basis shown in the record. People v. Davis, 382 Ill. App. 3d

701, 706 (2008).

¶ 48 A postconviction proceeding is not a substitute for a direct appeal, but instead, is a

collateral attack upon the conviction that allows only limited review of constitutional claims that

could not be raised on direct appeal. People v. Harris, 224 Ill. 2d 115, 128 (2007). Defendant must

demonstrate that he suffered a substantial deprivation of a constitutional right in the proceeding

that produced his conviction or sentence to be entitled to postconviction relief. People v.

Pendleton, 223 Ill. 2d 458, 471 (2006).

¶ 49 At second-stage of postconviction proceedings, the State may move to dismiss the petition.

See People v. Landa, 2020 IL App (1st) 170851, ¶ 42. The court should dismiss the petition only

“‘when the petition's allegations of fact—liberally construed in favor of the petitioner and in light

of the original trial record—fail to make a substantial showing’ of a constitutional violation.” Id.

(quoting People v. Coleman, 183 Ill. 2d 366, 382 (1998)). All well-pled facts must be taken as true

unless they are rebutted by the record. Id.

¶ 50 Furthermore, at second-stage postconviction proceedings, an indigent defendant is entitled

to representation by appointed counsel. 725 ILCS 5/122-4 (West 2012); People v. Lander, 215 Ill.

2d 577, 583 (2005). Postconviction counsel is required to provide defendant with a “reasonable

level of assistance.” Cotto, 2016 IL 119006, ¶¶ 41-42.

¶ 51 Pursuant to Rule 651(c), postconviction counsel has a duty to consult with defendant to

ascertain his contentions of constitutional deprivation, examine the trial record, and, where

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necessary, amend the pro se petition to adequately present defendant’s contentions. Pendleton,

223 Ill. 2d at 472. Compliance with these duties may be shown by a certificate filed by

postconviction counsel. Ill. S. Ct. R. 651(c); Lander, 215 Ill. 2d at 584. Counsel’s substantial

compliance with Rule 651(c) is sufficient. People v. Profit, 2012 IL App (1st) 101307, ¶ 18. A

Rule 651(c) certificate creates a rebuttable presumption that postconviction counsel rendered

reasonable assistance. Id., ¶ 19.

¶ 52 Here, postconviction counsel PD 4 filed a Rule 651(c) certificate stating that she consulted

with defendant by phone and in correspondence to ascertain his contentions of deprivations of his

constitutional rights and examined the pertinent portions of the report of proceedings and common

law record from defendant’s case. Counsel further stated, “I have examined the Petitioner’s, pro

se Post-Conviction petition. There are no required amendments to his petition for a necessary and

adequate presentation of Petitioner’s contentions.” Accordingly, the presumption exists that

counsel provided defendant with the reasonable level of assistance required by the rule. The

burden, therefore, is on defendant to rebut this presumption by demonstrating that PD 4 failed to

substantially comply with the duties required by Rule 651(c). Id.

¶ 53 First Issue: Ineffective Assistance of Postconviction Counsel

¶ 54 Defendant first contends that PD 4 provided unreasonable assistance because she failed to

amend his pro se petition by adding an allegation that trial counsel rendered ineffective assistance

during “plea bargaining” when counsel failed to notify defendant of the 15-year plea offer made

by the State. While he did not use the term “ineffective assistance” of trial counsel in his petition,

defendant points out that in his affidavit he stated that trial counsel informed his mother of the

offer at the beginning of trial but never advised him of the offer. Defendant argues that because

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the claim was not raised as an allegation within the body of his petition, PD 4 was obligated to add

the allegation by shaping it into the appropriate legal form with citation to relevant legal authority.

Defendant claims that because PD 4 did not do so, the circuit court did not consider the issue before

dismissing his petition. Defendant argues that the claim likely would have been meritorious

because the record shows defense counsel and the State were involved in plea negotiations. He

further argues there was a reasonable probability he would have accepted the 15-year offer in the

face of a potential sentence of 30-65 years. We note that defendant was a juvenile but was tried as

an adult. Nothing in the record suggests that his age or any other intervening factor would have

prevented him from being able to assess and decide on a plea offer from the State if it had been

conveyed to him by his attorney. We further emphasize the utmost importance of this right, given

the serious impact it has on a criminal defendant’s freedom, potentially for the rest of his life. In

the present case, defendant has established that there was a meaningful difference between the

State’s offer of a 15-year sentence and the potential maximum sentence he faced; furthermore, the

15-year difference is even more significant given the years of freedom that a juvenile defendant

stands to lose at the start of his adult life, and the impact that has on his future.

¶ 55 The State responds that there is no merit to defendant’s claim that postconviction counsel

was unreasonable because his allegation was already included in his petition in his affidavit. The

State points out that defendant also raised the allegation in the conclusion of his petition when he

stated that the trial court “did nothing to remedy the gross misunderstanding which resulted from

counsel’s errors and advice at the plea.” The State argues that the circuit court considered the

allegation at length before dismissing the petition. Therefore, according to the State, defendant

cannot show he was prejudiced by counsel’s failure to amend the petition to add a claim that was

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already presented. The State further asserts that defendant presented no evidence that the State

ever made an offer. It argues that the record clearly shows that postconviction counsel investigated

defendant’s claims over an extended period, and her investigation may have revealed no offer was

ever made.

¶ 56 Pursuant to Rule 651(c), counsel is obligated to amend defendant’s pro se petition only

where it is necessary to properly present his claims. Pendleton, 223 Ill. 2d at 472. Compliance with

the third duty under Rule 651(c) does not require postconviction counsel to advance frivolous or

spurious claims on defendant’s behalf. Id.; Profit, 2012 IL App (1st) 101307, ¶ 23. Nor does Rule

651(c) require counsel to bolster every claim raised in defendant’s petition, regardless of its legal

merit, or to present every witness or shred of evidence defendant believes potentially supports his

claims. People v. Custer, 2019 IL 123339, ¶ 38. If amending a pro se petition would do nothing

more than further a frivolous or patently nonmeritorious claim, then it is not a “necessary”

amendment within the meaning of Rule 651(c). Profit, 2012 IL App (1st) 101307, ¶ 23. Although

postconviction counsel may raise additional claims if she so chooses, counsel is under no

obligation to do so. Pendleton, 223 Ill. 2d at 476. We also note that in a recent unpublished

decision, we reversed the trial court’s second-stage dismissal of the defendant’s petition on the

grounds that postconviction counsel failed to amend the pro se petition and thus failed to render

the requisite reasonable level of assistance required by the Act, when she belatedly attempted to

orally raise new constitutional claims without properly presenting them for consideration by the

court. See People v. Martez Smith, 2022 IL App (1st) 210909-U (Jan. 23, 2023).

¶ 57 Here, the record shows that in the fourth allegation in his pro se petition, when he alleged

that his sentence was punishment for invoking his right to a jury trial, defendant claimed the State

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had offered him a 15-year sentence during plea negotiations. Defendant expressly stated that his

claim was supported by his affidavit. In the affidavit, defendant clearly averred that trial counsel

had informed his mother of the State’s 15-year offer at the beginning of trial, but never advised

him of the offer. The trial record shows that when Adam was trial counsel, the parties were engaged

in plea discussions for several months and were attempting to schedule a 402 conference. It is

unclear from the record whether a conference ever occurred or that an offer was ever made at that

time. Adam withdrew, and two months later, Thedford began representing defendant. Eight

months later, defendant’s jury trial began. It is uncertain whether Thedford was ever involved in

plea negotiations with the State.

¶ 58 The record reveals that for more than three years, postconviction counsel PD 4 investigated

the claims raised in defendant’s pro se postconviction petition. She consulted with defendant and

met with him at the prison. She obtained the trial file from Thedford and scheduled a conference

call with him to “peruse and assess” the allegations raised by defendant in his postconviction

petition. On numerous court dates, PD 4 expressly stated that she was attempting to contact

witnesses and obtain affidavits “to supplement Mr. Jenkins’ petition.” She specifically stated that

she was attempting to procure an affidavit “from family members” and “from Mr. Jenkins’

mother.” The record further reflects that PD 4 was having difficulty obtaining the affidavits she

needed. On February 21, 2017, she stated, “I have not procured the affidavit from the witness that

the defendant is relying on to support his constitutional violation.” Over a year later, on April 10,

2018, she stated that she had completed her investigation and research but was waiting for an

affidavit that was “kind of difficult” to obtain. About eight months later, after obtaining no

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affidavits, PD 4 filed her 651(c) certificate, concluding that defendant’s pro se petition did not

require any amendments to adequately present his contentions.

¶ 59 The record suffices to show that there was more than a frivolous, nonmeritorious claim

underlying defendant’s assertion that trial counsel provided ineffective assistance by failing to

convey and discuss with defendant the State’s 15-year plea offer. When the circuit court reviewed

defendant’s petition, it quoted his averment that his mother had stated that counsel informed her

at the beginning of trial that the State had offered a 15-year sentence in exchange for his guilty

plea. The court considered defendant’s allegation but found it conclusory because defendant failed

to demonstrate that an offer was ever made. The court pointed out that defendant did not allege

that he would have accepted the plea offer had trial counsel advised him of it. There was enough

in defendant’s petition to indicate that this was an issue postconviction counsel had a duty to

explore, and the investigation she undertook, as summarized above, should have revealed whether

this was a meritorious claim that she had a duty to pursue. If so, then she was further required to

provide reasonable assistance in developing this claim, which might have ameliorated the

deficiencies in defendant’s pleadings that the circuit court identified. If defendant provided

insufficient support for a valid claim of ineffective representation, that does not excuse

postconviction counsel from investigating and, depending on the outcome of those efforts,

amending the petition to support that claim. It is unclear from the record why, over the course of

postconviction counsel’s efforts to investigate defendant’s claims, she did not address the

deficiencies identified by the circuit court.

¶ 60 Our supreme court has stated that a criminal defendant “personally possesses a

constitutional right to elect what plea to enter.” People v. Williams, 2016 IL App (4th) 140502, ¶

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33 (citing See People v. Phillips, 217 Ill.2d 270, 281 (2005)). At the core of this right is “the

constitutional right to be reasonably informed with respect to the direct consequences of accepting

or rejecting a guilty-plea offer from the State.” Id; see also People v. Hale, 2013 IL 113140, ¶ 16;

People v. Curry, 178 Ill. 2d 509, 528 (1997). If the record does not state what a defendant was told

regarding a plea offer from the State, the trial could be reversed, even where there were no other

errors. Williams, 2016 IL App (4th) at ¶ 33. This right does not go away merely because a

defendant is a juvenile; we find nothing to stand for that proposition, and furthermore, nothing to

indicate that a juvenile tried as an adult and facing sentencing as an adult does not have the same

constitutional right as any other criminal defendant to be personally consulted regarding a plea

offer.

¶ 61 As the circuit court noted, the failure to inform the defendant about a plea offer might not

be ineffective assistance of counsel where the defendant cannot show that this failure prejudiced

him. See Hale, 2013 IL at ¶ 17. The circuit court found that there was no great disparity between

the 15-year offer and the 20 years’ imprisonment defendant received at sentencing. Defendant

argued in his petition that the sentence he received, of 20 years plus 6 years, to run concurrently,

was a significant enough difference that he was prejudiced by not being able to consider the 15-

year offer. He now argues that, according to sentencing guidelines, he was potentially facing an

aggregate sentence of 30 to 65 years (or 24 to 50 years assuming good conduct credit) at the time

that the offer was made, which supports his contention that there is evidence in the record that he

would have accepted the offer. While it is true that the disparity between the offer and his actual

sentence is not the 38 to 76 years difference in Dennis, the court in Dennis wrote that its finding

of a constitutional violation was limited to the facts of that case, where the sentence was

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approximately 20 times greater than the plea offer. Dennis, 28 Ill.App.3d 74 at 78-79. This case

does not stand for the proposition that only a disparity of a comparable size suggests prejudice to

a defendant who was not able to consider and accept a plea deal.

¶ 62 Every defendant, no matter his age, has a right to be fully advised of all his options,

including being informed of a plea deal offered by the State. In this matter, the defendant was tried

as an adult but seemingly not treated as an adult in the plea-bargaining process—it is insufficient

that the State’s offer was conveyed to his mother if he himself was not apprised of it by trial

counsel. A minor defendant’s most fundamental liberty interest is at stake when he is tried as an

adult, and we have been presented with no authority stating that he is not entitled to the information

necessary to make a decision regarding that interest, or even to discuss a decision with the adult

tasked with representing him. See People v. McGee¸ 2012 IL App (2d) 190040, ¶ 32 (“[A] criminal

defendant personally possesses a constitutional right to elect what plea to enter.”); People v.

Williams¸ 2016 IL App (4th) 140502, ¶ 33 (“A criminal defendant has the constitutional right to

be reasonably informed with respect to the direct consequences of accepting or rejecting a plea

offer.”) By not being personally informed of the State’s plea offer, and therefore deprived of the

ability to make a fully informed decision regarding the next several years of his future, Defendant

received ineffective assistance of counsel at the trial court level. He had an absolute right to know

about any plea discussions and he was deprived of that right. This error was further compounded

by postconviction counsel’s failure to develop this claim at second stage proceedings. The circuit

court identified deficiencies in defendant’s postconviction claim on this issue; reasonably diligent

postconviction counsel should have made an effort to bolster this non-frivolous, potentially

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meritorious claim, rather than leaving it as-is. We find therefore find that the circuit court erred in

its decision dismissing defendant’s postconviction petition.

¶ 63 We further reject the dissent’s speculation as to how PD 4’s conversation with defendant’s

mother might have gone, and the reasons for which PD 4 might have found it unnecessary or

unproductive to continue discussions with Jenkins himself. The record does not support any of the

dissent’s suggestions, and even if his mother stated that she brought the plea deal to Jenkins’

attention, this does not excuse trial counsel from his responsibility as his counsel to present the

offer to him directly. Given the importance of the liberty interest at stake, it was incumbent upon

trial counsel to make sure that defendant was apprised of and understood the offer, and it would

not have been reasonable for her to rely on his mother as an intermediary. If, as the dissent

supposes, there could have been something to come from PD 4’s conversation with Jenkins’

mother that explained why counsel did not take the offer to defendant directly, then PD 4’s failure

to procure an affidavit from his mother is all the more serious. Additionally, we found the

significant disparity between the State’s offer and the potential sentence defendant was facing,

which he identifies in his petition, to support our decision that defendant has stated more than a

frivolous, nonmeritorious claim, contrary to the dissent’s position.

¶ 64 Based on this record, we find that postconviction counsel provided unreasonable assistance

when she concluded it was not necessary to amend defendant’s pro se petition to add or bolster his

claim that trial counsel rendered ineffective assistance during plea negotiations. The defects we

have discussed sufficiently overcome the rebuttable presumption that counsel provided reasonable

assistance.

¶ 65 Second Issue: Untimely Filing of the Postconviction Petition

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¶ 66 Defendant next contends PD 4 provided unreasonable assistance because she failed to

amend his pro se petition by adding an argument that his late filing was not due to his culpable

negligence. When defendant filed his petition in May 2013, the Act’s filing provision stated, in

relevant part:

“When a defendant has a sentence other than death, no proceedings under this Article shall

be commenced more than 6 months after the conclusion of proceedings in the United States

Supreme Court, unless the petitioner alleges facts showing that the delay was not due to

his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under

this Article shall be commenced more than 6 months from the date for filing a certiorari

petition, unless the petitioner alleges facts showing that the delay was not due to his or her

culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition

shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges

facts showing that the delay was not due to his or her culpable negligence.” 725 ILCS

5/122-1(c) (West 2012).

¶ 67 Here, defendant filed a direct appeal but did not file a petition for leave to appeal with the

Illinois Supreme Court or a petition for certiorari with the United States Supreme Court.

Defendant’s direct appeal was decided on March 24, 2011. Defendant filed a petition for rehearing

which this court denied on April 20, 2011. Defendant’s deadline to file a petition for leave to

appeal with our supreme court was 35 days from the denial of his petition for rehearing, which

was May 25, 2011. Ill. S. Ct. R. 315(b) (eff. Feb. 26, 2010). In Johnson, our supreme court held

that a postconviction petition must be filed within six months of the date for filing a petition for

leave to appeal. Johnson, 2017 IL 120310, ¶ 24. The parties agree that defendant’s petition was

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due by November 25, 2011 pursuant to the Johnson holding, and was actually filed on May 17,

2013. However, the petition was filed approximately three years before the Johnson decision

would clarify the six-month deadline for the filing a postconviction petition.

¶ 68 Defendant points out that on the first page of his petition, he stated that the Act did not

clearly identify the deadline for filing a postconviction petition when a petition for leave to appeal

was not filed. He argues his statement suggests that the Act’s ambiguity regarding the deadline

explained his delay in filing. Defendant acknowledges that our supreme court resolved the

ambiguity in Johnson when it found the deadline was six months. He argues, however, that he

filed his petition more than three years before Johnson was decided.

¶ 69 The State responds that, although defendant’s petition was untimely filed, the circuit court

considered each claim raised in the petition on the merits. Consequently, defendant cannot show

he was prejudiced by counsel’s failure to amend his petition because the result would not have

been any different if counsel had included an argument that he was not culpably negligent.

Therefore, defendant did not satisfy his burden of overcoming the presumption that postconviction

counsel provided reasonable assistance. The State also points out that in Johnson, the supreme

court found that the ambiguity in the statute did not excuse the defendant’s late filing because

ignorance of the law does not excuse such delay.

¶ 70 Postconviction proceedings must be initiated within the time limitations specified in

section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2012)), unless defendant alleges facts

showing the delay in filing his petition was not due to his culpable negligence. Lander, 215 Ill. 2d

at 586. Our supreme court defined "culpable negligence" as conduct greater than ordinary

negligence and akin to recklessness. People v. Boclair, 202 Ill. 2d 89, 108 (2002). It is solely

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defendant's obligation to know the time limitations for filing his postconviction petition, and his

ignorance of the law or his legal rights will not excuse a delay in filing. Lander, 215 Ill. 2d at 588-

89.

¶ 71 We find that our supreme court’s reasoning in Cotto governs our decision here. In Cotto,

the defendant, through privately retained counsel, filed a postconviction petition more than a year

and a half late. Cotto, 2016 IL 119006, ¶ 44. The circuit court advanced the petition to second-

stage proceedings. Id. ¶ 12. The State moved to dismiss the petition arguing that it was untimely

and that the defendant failed to allege that the untimely filing was not due to his culpable

negligence. Id. The State further argued that none of the substantive claims made a substantial

showing of a constitutional violation. Id. In response, postconviction counsel argued that the

untimely filing was not due to the defendant’s culpable negligence because trial counsel failed to

inform the defendant about the appellate court’s decision on direct appeal. Id. ¶ 13. When

reviewing the petition, the circuit court evaluated the merits of the defendant’s substantive claims,

concluded that he did not make a substantial showing of a constitutional violation, and on that

basis, granted the State’s motion to dismiss the petition. Id. ¶ 48. The court did not indicate that

the dismissal was based on the petition’s untimely filing. Id. ¶ 14.

¶ 72 On appeal, the defendant argued that his postconviction counsel failed to provide him with

reasonable assistance during second-stage proceedings because counsel failed to adequately

explain that the delay in filing his petition was not due to his culpable negligence. Id. ¶¶ 15, 49.

The appellate court rejected that argument and affirmed the circuit court’s dismissal. Id. ¶15. Cotto

appealed to the supreme court.

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¶ 73 The supreme court rejected Cotto’s argument that his postconviction counsel failed to

provide him with reasonable assistance. The court noted that Cotto failed to explain what

additional information postconviction counsel should have included regarding the timeliness issue.

Id. ¶ 50. The court further reasoned, “critically, the record demonstrates that defendant’s petition

was not dismissed as untimely. The trial court reviewed defendant’s claims on their merits with no

mention of the petition’s late filing.” Id. Under those circumstances, the court found no deficiency

in postconviction counsel’s representation. Id. ¶ 51.

¶ 74 Here, the record shows that the circuit court found “[a]s a preliminary matter” that

defendant’s postconviction petition was untimely. However, the court further found that if

defendant’s claims were not procedurally barred, “they would be dismissed because they are

frivolous and patently without merit.” The court continued its written order for an additional 10

pages, thoroughly addressing each substantive claim raised in defendant’s petition as a separate

issue or sub-issue. As we have explained above, we disagree with the circuit court’s disposition of

defendant’s claim of ineffective assistance of counsel regarding plea bargaining.

¶ 75 We further find that Jenkins validly raised the argument that he was not negligent in the

timing of his filing. We agree that he could not have known in 2013 that our supreme court would

clarify the timeliness requirement of postconviction proceedings in its 2017 Johnson decision.

Indeed, unlike the petitioner in Johnson, Jenkins suggested in this pro se petition that this statutory

ambiguity was the cause-in-fact of his failure to timely file his petition. Thus, PD 4 provided

unreasonable assistance because she failed to amend his pro se petition by adding an argument

that his late filing was not due to his culpable negligence.

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¶ 76 Failure to Obtain New Affidavits

¶ 77 A separate matter relating to defendant’s first two issues of ineffective assistance of counsel

is his claim that postconviction counsel failed to obtain new affidavits from him and his mother to

support the allegations above that trial counsel failed to advise him of the State’s 15-year plea

offer, and that he was not culpably negligent for his untimely filing. Defendant states that his

original affidavit was missing important details about the offer such as when it was made, what

offense he would have pled to, how counsel misunderstood the offer, and that he would have

accepted the offer. He also states he needed to provide a new affidavit stating that the ambiguity

in the statute was the reason he filed his petition late. Defendant asserts there is no indication in

the record that counsel attempted to procure affidavits from him or his mother. He states that

counsel never told the court that she had tried, but failed, to obtain his mother’s affidavit. He

further claims counsel filed her 651(c) certificate and told the court she was working from 11 p.m.

to 7 a.m. because she was trying to close his case after transferring to another unit, not because she

made reasonable, but unsuccessful, attempts to obtain affidavits from him and his mother.

¶ 78 In contrast to defendant’s claim above, the record shows that counsel did make some

attempts to procure affidavits from witnesses and family members to support the claims in

defendant’s petition, despite defendant’s claim that she did not. On June 30, 2016, counsel

specifically stated that she was attempting “to procure the affidavit from Mr. Jenkins’ mother.” On

February 23, 2017, counsel stated, “I have not procured the affidavit from the witness that the

defendant is relying on to support his constitutional violation.” On April 10, 2018, counsel reported

that she had completed her investigation and research, and stated, “I’m just waiting on an affidavit

which is kind of difficult for me to obtain, but I’m in the process with my investigator.” The record

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thus shows that counsel was unsuccessful in obtaining the affidavits she believed she needed to

support defendant’s claims, including an affidavit from his mother.

¶ 79 It is unclear why postconviction counsel was unable to procure an affidavit from

defendant’s mother, which seemingly would have provided support for the defendant’s claim that

trial counsel only discussed the State’s plea offer with her, and not with defendant, with no

indication that the juvenile defendant would have been incapable of understanding the terms and

consequences of the offer. There is no reason given as to why defendant’s mother could not be

located or could not produce an affidavit. Trial counsel was apparently able to locate and speak

with her in order to convey the plea offer to her; there is no explanation as to why, over the course

of approximately three years, postconviction counsel could not obtain a statement from her about

this discussion. As discussed above, we find that the deficiencies in defendant’s claim of

ineffective assistance of trial counsel, as identified by the circuit court, should have been cured has

postconviction counsel met her duty of providing reasonable assistance. In line with that finding,

as well as our discussion of defendant’s first contention, defendant has sufficiently shown that

postconviction counsel failed to substantially comply with Rule 651(c). Despite facing the

consequences of an adult criminal defendant, defendant was not afforded the same constitutional

rights as an adult in his position, and this serious error should have been more diligently explored

by postconviction counsel.

¶ 80 Based on the record and circumstances in this case, we are able to reach a conclusion

without going further into the remaining arguments in defendant’s pro se petition. We find that

postconviction counsel’s representation was substantially deficient for the reasons discussed

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above. Accordingly, we conclude that defendant did not receive the reasonable assistance of

postconviction counsel contemplated by the Act.

¶ 81 CONCLUSION

¶ 82 For these reasons, we reverse the judgment of the circuit court of Cook County dismissing

defendant’s postconviction petition during second-stage proceedings, and remand the matter back

to the circuit court to hold second-stage proceedings, with new postconviction counsel for the

defendant.

¶ 83 Reversed and remanded.

¶ 84 JUSTICE LAVIN, dissenting:

¶ 85 Defendant solely asserts on appeal that appointed counsel did not provide reasonable

assistance as required by Illinois Supreme Court Rule 651(c) (Feb. 6, 2013). Defendant has not

developed any argument asserting that the circuit court’s judgment on the merits of his claims was

erroneous.

¶ 86 Yet, the majority holds that “the circuit court erred in its decision dismissing defendant’s

postconviction petition” because “there was more than a frivolous, nonmeritorious claim

underlying defendant’s assertion that trial counsel provided ineffective assistance by failing to

convey and discuss with defendant the State’s 15-year plea offer.” The majority also states:

By not being personally informed of the State’s plea offer, and therefore deprived of the ability to make a fully informed decision regarding the next several years of his future, Defendant received ineffective assistance of counsel at the trial court level.

The foregoing determinations resolve issues not raised by defendant on appeal and do not reflect

the standard that applies when reviewing a claim that appointed postconviction counsel failed to

provide reasonable assistance.

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¶ 87 As the majority acknowledges, a rebuttable presumption exists that appointed counsel

provided reasonable assistance in this case. Defendant has not overcome that presumption.

¶ 88 According to defendant’s allegations, his mother said that “at the begining [sic] of trial,

counsel informed her that the state had offered a 15 year sentence in exchange for plea of guilt,

but he misunderstood how this offer was made and whether it would be at 85%.” In addition,

defendant alleged that trial counsel, “never advised me of this offer, directly affecting the

consequences of the proceedings.”

¶ 89 The record indicates that appointed counsel was attempting to procure, among other things,

an affidavit from defendant’s mother. While appointed counsel ultimately did not do so, we cannot

assume this resulted from counsel’s failing.

¶ 90 Appointed counsel may very well have spoken with defendant’s mother and learned that

her account was problematic. For example, his mother may have informed counsel that the offer

only pertained to certain counts, leaving others unresolved. His mother may have stated that she

brought this offer to defendant’s attention shortly after learning of it but that defendant nonetheless

preferred trial. Additionally, his mother may have stated that she had told defendant no such thing.

Moreover, appointed counsel could have encountered other evidence showing the State never

made an offer.

¶ 91 In short, defendant cannot overcome his burden of rebutting the presumption that counsel

provided reasonable assistance in this regard. The majority states that “reasonably diligent

postconviction counsel should have made an effort to bolster this non-frivolous, potentially

meritorious claim, rather than leaving it as-is.” Yet, the majority fails to recognize the possibility

that counsel’s diligent efforts uncovered nothing to bolster the claim with. People v. Greer, 212

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Ill. 2d 192, 205 (2004) (stating that “[i]f amendments to a pro se postconviction petition would

only further a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the

meaning of [Rule 651(c)”).

¶ 92 Accordingly, I would affirm the judgment.

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