2022 IL App (1st) 191367-U
No. 1-19-1367
Order filed May 10, 2022.
Second Division
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 12223 ) MARC LEON, ) The Honorable ) Domenica Stephenson, Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal, on the State’s motion, of defendant’s postconviction petition is affirmed where he failed to (1) show that he was not culpably negligent for its untimely filing, and (2) establish he was denied reasonable assistance of postconviction counsel.
¶2 Defendant Marc Leon appeals from the circuit court’s dismissal, upon the State’s motion,
of his petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-
1 et seq. (West 2012)). On appeal, defendant contends that the circuit court erred in dismissing the No. 1-19-1367
petition when it made a substantial showing that he was not culpably negligent for its untimely
filing and that he was denied the benefit of his plea bargain with the State. Defendant further
alleges that he was denied reasonable assistance when postconviction counsel failed to file a
response or argue against the State’s motion to dismiss. We affirm.
¶3 On September 16, 2009, defendant entered a negotiated plea of guilty to unlawful use of a
weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)) in exchange for a seven-year prison
sentence. On that date, defendant was already serving a 20-year prison sentence for attempted first
degree murder in case number 05 CR 2498.
¶4 At the plea hearing, the trial court stated, relevant here, that the term imposed in the instant
case would be consecutive to defendant’s sentence in case number 05 CR 2498, and that defendant
would receive 841 days of presentence custody credit.1 Defendant would serve two years of
mandatory supervised release (MSR) following his sentence. The court further admonished
defendant that if he wished to appeal, he must file within 30 days a motion to withdraw the plea
stating his reasons for withdrawal. If the motion were granted, the guilty plea would be set aside
and the case would be set for trial. However, if the motion were denied, defendant would have 30
days to file an appeal. Defendant indicated that he understood.
¶5 Defendant’s order of commitment and sentence reflects a seven-year sentence, to be served
consecutive to the sentence in case number 05 CR 2498, and 841 days of credit for time served.
He did not file a motion to withdraw his guilty plea or a direct appeal.
¶6 In March 2013, defendant filed a pro se “petition for relief from void judgment” alleging,
relevant here, that he was denied effective assistance by plea counsel’s failure to adequately advise
1 Defendant received 91 days of presentence custody credit in case number 05 CR 2498.
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him that he would receive credit against only one sentence. The petition further alleged that the
trial court “breached” its agreement with defendant when it failed to admonish him that he would
receive credit for time served on only one case rather than “on both as discussed,” resulting in
defendant being “forced to serve more time.” The petition finally alleged that defendant was not
admonished that he must serve a term of MSR when released from prison.
¶7 The State filed a motion and amended motion to dismiss. On November 25, 2013,
defendant told the court he wished to file a written response and asked for an attorney. The circuit
court appointed counsel.
¶8 On April 8, 2014, counsel sought leave to file “Defendant-Petitioner’s Recharacterized
Petition From Relief From Void Judgment to a Supplemental Pro-Se Postconviction Petition.”
After the circuit court expressed confusion regarding the document’s title, counsel explained
defendant wished the pro se “void from judgment” petition be recharacterized as a postconviction
petition, and asked leave to “supplement” the pro se filing with what defendant “really” intended
to request. Ultimately, the circuit court recharacterized the new filing as a postconviction petition,
struck the word “supplemental” from its title, stated that the first “90 days” began on that date, and
continued the cause.
¶9 “Defendant-Petitioner’s Recharacterized Petition From Relief From Void Judgment to a
Pro-Se Postconviction Petition” alleged that his fully negotiated plea included, as a “term of the
*** agreement,” that he would receive 841 days of presentence custody credit. However, a
calculation worksheet that defendant received in prison did not reflect this credit, and he was
informed that he would only receive the credit against the sentence imposed in case number 05 CR
2498. The petition further alleged that defendant should be afforded the benefit of his bargain with
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the State, that is, 841 days of credit against his 7-year sentence in the instant case, number 07 CR
12223.
¶ 10 Counsel attached the plea hearing transcript and a Department of Corrections (DOC)
sentence calculation worksheet listing defendant’s “projected out date” as November 7, 2027. This
document stated that defendant’s “1st Sentence” in case number 05 CR 2498 was 20 years to be
served at 85%, and his “Consecutive Sentence” in case number 07 CR 12223 was 7 years to be
served at 50%, and the “Total Aggregate Sentence” was 27 years. The handwritten date on the
document appears to be “9/19/09.”
¶ 11 On June 19, 2014, the circuit court summarily dismissed the petition as frivolous and
patently without merit in a written order. The court noted, in pertinent part, that because defendant
was required to serve consecutive sentences, he was not entitled to apply the presentence custody
credit in this case against both sentences; rather, the 841 days applied to the sentence he was
serving while awaiting a disposition in the instant case, i.e., to the sentence he was serving in case
number 05 CR 2498.
¶ 12 On appeal, this court reversed the circuit court’s judgment and remanded for further
proceedings when the “inconclusive” record did not rebut defendant’s assertion that the 841 days’
credit was part of the plea agreement. See People v. Leon, 2016 IL App (1st) 142131-U, ¶ 18.
¶ 13 On January 11, 2017, postconviction counsel filed a certificate pursuant to Supreme Court
Rule 651(c) (eff. Feb. 6, 2013), stating that she consulted with defendant by phone and in person
to ascertain his claims, examined the relevant portions of the common law record, report of
proceedings, and the pro se postconviction petition, and had supplemented the petition for a
“necessary and adequate presentation” of defendant’s claims.
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¶ 14 On March 14, 2017, the State filed a motion to dismiss alleging, relevant here, that the
petition was untimely as defendant, who was sentenced on September 16, 2009, should have
commenced a postconviction proceeding by September 2012, and offered no explanation for filing
six months late.2
¶ 15 On August 17, 2017, postconviction counsel asked the circuit court for a continuance
because she had not received necessary documents from defendant. On September 21, 2017,
counsel requested another continuance because she was “trying to acquire some documents from
[defendant] pertaining to culpable negligence.” On October 31, 2017, counsel informed the court
that she had received documents from defendant and would file a response on December 14, 2017.
On May 10, 2018, postconviction counsel asked the circuit court for a continuance as she was “still
*** trying to get the documentation” for a “culpable negligence argument.” On October 11, 2018,
counsel informed the court she had been unable to obtain an affidavit from defendant and asked
that he be brought to court.
¶ 16 On February 7, 2019, postconviction counsel filed defendant’s supplemental affidavit
averring that he entered a negotiated plea whereby he “would receive 841 days credit” and that the
“court found [he was] entitled to receive credit for time actually served for a total of 841 days,”
but he subsequently learned he “was not receiving credit.” Defendant also averred that he was
“subject to numerous and prolonged lockdowns,” which prevented access to the law library and
delayed the filing of the petition for relief from judgment until March 2013. He finally averred that
he was not culpably negligent for not seeking relief before then, as he relied on the transcript of
2 The supplemental record on appeal contains a purported response to the State’s motion to dismiss, but this document is not signed by postconviction counsel or file-stamped. Although the State references this document in its brief, we will not consider it, as there is no indication that it was filed in the circuit court. On appeal, defendant contends postconviction counsel did not file a response.
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the plea hearing and the order of commitment and sentence which stated he would receive 841
days of credit.
¶ 17 On April 18, 2019, the court heard argument on the State’s motion to dismiss. The State
argued that defendant’s petition was untimely filed in March 2013, six months late, and he offered
no explanation for the delay. Additionally, defendant failed to make a substantial showing of a
constitutional violation when his claims were based on the record, could have been raised on direct
appeal, and lacked documentary support.
¶ 18 Postconviction counsel argued that defendant was entitled to the benefit of his bargain with
the State for 841 days of credit. Moreover, defendant did not learn he would not receive the credit
until he was at the penitentiary and was thereafter subject to “numerous and prolonged” lockdowns
which prevented him from filing anything until March 2013.
¶ 19 On June 12, 2019, the circuit court granted the State’s motion to dismiss in a written order
noting, relevant here, that defendant had three years from his conviction on September 16, 2009,
to seek postconviction relief. However, defendant did not file anything until March 2013, six
months after the deadline. To the extent that defendant argued he was not culpably negligent due
to prison lockdowns, the court noted that defendant failed to provide any details regarding the
lockdowns, other than that they were numerous, and that he was “on notice” of this issue when he
received the sentence calculation worksheet in September 2009.
¶ 20 On appeal, defendant first contends that the circuit court erred in dismissing the petition
when he was not culpably negligent for its untimely filing, and the petition made a substantial
showing that he was denied the benefit of his bargain with the State.
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¶ 21 The Act provides a three-step mechanism by which individuals under criminal sentence
can assert that their convictions resulted from a substantial denial of their constitutional rights.
People v. Dupree, 2018 IL 122307, ¶ 28. Here, defendant’s petition was dismissed at the second
stage.
¶ 22 At that stage, the defendant has the burden to make a substantial showing of a constitutional
violation, that is, that the allegations, if proven at an evidentiary hearing, would entitle him to
relief. People v. Domagala, 2013 IL 113688, ¶ 35. The State, in turn, may file an answer or motion
to dismiss the petition. 725 ILCS 5/122-5 (West 2012). The circuit court does not resolve
evidentiary questions or engage in fact-finding or credibility determinations. Domagala, 2013 IL
113688, ¶ 35. Instead, all well-pled factual allegations are taken as true unless positively rebutted
by the record. Id. A petition is advanced to a third-stage evidentiary hearing only when the
allegations, supported by “ ‘affidavits, records, or other evidence,’ ” make a substantial showing
of a constitutional deprivation. Dupree, 2018 IL 122307, ¶ 28 (quoting 725 ILCS 5/122-2 (West
2014)). We review the dismissal of a postconviction petition upon the State’s motion de novo.
People v. Sanders, 2016 IL 118123, ¶ 31.
¶ 23 Before reaching the merits of defendant’s arguments, we first address the timeliness of his
petition.
¶ 24 Pursuant to section 122-1(c) of the Act, if a defendant does not file a direct appeal, his or
her postconviction petition “shall be filed no later than 3 years from the date of conviction, unless
[the defendant] alleges facts showing that the delay was not due to his or her culpable negligence.”
725 ILCS 5/122-1(c) (West 2012).
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¶ 25 In the case at bar, defendant did not file a postconviction petition within the statutory
limitation period. Defendant entered a guilty plea and was sentenced on September 16, 2009.
Because he did not file a motion to withdraw the guilty plea or a direct appeal, he was required to
file his postconviction proceeding by Monday, September 17, 2012. 3 However, defendant’s pro se
filing was not received by the circuit court until March 5, 2013. Accordingly, we must determine
whether the delay was not due to his culpable negligence.
¶ 26 “It is well settled that all citizens are charged with knowledge of the law” and that
“[i]gnorance *** will not excuse a delay in filing a lawsuit.” People v. Lander, 215 Ill. 2d 577,
588 (2005); see also People v. Johnson, 2017 IL 120310, ¶ 27 (finding that the defendant’s “lack
of legal knowledge as to postconviction matters” was insufficient to establish lack of culpable
negligence because “ignorance of the law or of one’s legal rights does not provide an excuse for
his late filing”). However, the Act permits the filing of an untimely petition when a defendant
“alleges facts showing that the delay in filing the petition was not due to his or her culpable
negligence.” Id. ¶ 26; see also 725 ILCS 5/122-1(c) (West 2012).
¶ 27 “Culpable negligence has been defined as ‘[n]egligent conduct that, while not intentional,
involves a disregard of the consequences likely to result from one’s actions.’ ” People v. Boclair,
202 Ill. 2d 89, 106 (2002) (quoting Black’s Law Dictionary 1056 (7th ed. 1999)). In other words,
it is “greater than ordinary negligence and is akin to recklessness.” Id. at 108. A defendant alleging
a lack of culpable negligence “must support his assertion with allegations of specific fact showing
why his tardiness should be excused.” People v. Hobson, 386 Ill. App. 3d 221, 233 (2008). It is
“very difficult” to show a lack of culpable negligence (People v. Turner, 337 Ill. App. 3d 80, 86
3 September 16, 2012, was a Sunday.
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(2003)), and “[a] defendant bears a heavy burden to affirmatively show why the exception to the
statute of limitations applies to his case” (People v. Gunartt, 327 Ill. App. 3d 550, 552 (2002)). In
other words, vague or conclusory allegations are insufficient. People v. Walker, 331 Ill. App 3d
335, 340 (2002).
¶ 28 Initially, defendant contends that the circuit court improperly engaged in a credibility
determination at the second stage of proceedings by finding that he was culpably negligent.
Defendant relies on People v. Wheeler, 392 Ill. App. 3d 303 (2009), for the proposition that a
culpable negligence claim must be addressed at a third stage evidentiary hearing because it rests
on an assessment of a defendant’s credibility.
¶ 29 In Wheeler, the defendant pled guilty to multiple counts and was sentenced to multiple
concurrent prison terms. Id. at 304. The trial court did not admonish the defendant that he must
serve a three-year term of MSR upon completion of his prison term. Id. The defendant did not file
a direct appeal. Id.
¶ 30 The defendant then filed a pro se petition for relief from judgment, requesting that his
sentence be modified because the trial court failed to admonish him, prior to the entry of his guilty
pleas, that he must serve a three-year MSR term. Id. He also filed a pro se petition for leave to file
a late petition for postconviction relief. In support, he attached an affidavit explaining that the four-
month delay was caused by (1) five prison transfers during the relevant three-year period which
limited his access to his trial materials and the prison law library, and (2) an eight-month
confinement in isolation for prison rule violations. Id. at 304-05.
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¶ 31 The circuit court appointed postconviction counsel, who filed a supplemental petition
asking that the defendant’s term of imprisonment be reduced to 27 years followed by a 3-year
MSR term in order to enforce the benefit of the defendant’s bargain with the State. Id. at 305.
¶ 32 The State filed a motion to dismiss, which conceded the MSR issue, but alleged the petition
was untimely because the defendant failed to file within three years of his conviction and the delay
was not excusable under the Act. Id. The defendant filed a response, including a second affidavit
detailing the causes for the delay, namely, that the prison was on general lockdown for significant
periods which precluded access to the law library and notaries, and that the circuit court clerk
failed to respond to a request for the transcripts from the defendant’s guilty plea hearing. Id.
Following arguments on the motion to dismiss, the circuit court denied the State’s motion, found
the defendant not culpably negligent, and reduced his sentence based upon the fact that he was not
admonished regarding MSR. Id. at 306. In other words, the court granted the defendant relief under
the Act without holding an evidentiary hearing.
¶ 33 On appeal, the State argued that the defendant was culpably negligent in filing his petition
four months late and that the circuit court erred by granting the defendant “postconviction relief”
without holding an evidentiary hearing. Id.
¶ 34 This court vacated the circuit court’s order granting the defendant relief on his petition at
the second stage, as it “prevented the State from fulfilling its statutory obligation of filing an
answer, with a premature grant of relief,” and remanded with instructions to hold an evidentiary
hearing. Id. at 310-11. Had the Act contemplated relief at the second stage of proceedings, there
would not be a requirement that the State file an answer following the denial of a motion to dismiss.
Id. at 309-10 (citing 725 ILCS 5/122-5 (West 2006). We further found that:
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“when a *** court determines whether or not a defendant was culpably negligent, [it] must
assess the defendant’s credibility. [Citation.] Such an assessment is not intended for a
second-stage dismissal hearing, where [the] court is foreclosed from fact-finding and all
well-pleaded facts are taken as true. [Citation.] Assessments of credibility are better suited
to a third-stage evidentiary hearing, which does not occur until after the State’s answer,
which never occurred in this case.” Id. at 310.
¶ 35 We therefore remanded for further proceedings under the Act without addressing the merits
of the State’s untimeliness argument.
¶ 36 Defendant relies on Wheeler to conclude that he is entitled to a third stage evidentiary
hearing based solely on the fact that he asserted a lack of culpable negligence. In other words,
according to defendant, at the second stage of proceedings under the Act, the circuit court was
bound to accept his claim as true and only determine its credibility at an evidentiary hearing.
However, our decision in Wheeler was not based upon the substance of the circuit court’s dismissal
order, but whether the order granting the defendant relief at the second stage was procedurally
proper under the Act. Our analysis focused on whether, before granting postconviction relief, the
circuit court was statutorily required to hold an evidentiary hearing during which the State could
challenge the defendant’s claims regarding a lack of culpable negligence. See Id. (rejecting the
defendant’s claim that the evidence presented at a third-stage evidentiary hearing was limited to
the underlying constitutional claim).
¶ 37 In the case at bar, however, the dispositive question is whether the circuit court properly
granted the State’s motion to dismiss defendant’s postconviction petition as untimely at the second
stage of proceedings. In other words, we must consider whether defendant’s postconviction
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petition sufficiently alleged—based solely on the record, the petition, and supporting affidavits—
that the six-month delay in filing the initial pro se petition was not due to his culpable negligence.
Wheeler did not hold that a defendant has the right to advance to third stage proceedings merely
because he submits an affidavit averring an excuse for the untimely filing. In fact, Wheeler
recognized that: “[a]t the second stage, the trial court may dismiss a petition as untimely: (1) if the
petition fails to contains ‘allegations of lack of culpable negligence’; and (2) if the State moves to
dismiss on this round.” Wheeler, 392 Ill. App. 3d at 308 (quoting People v. Perkins, 229 Ill. 2d 34,
43 (2007)). For the following reasons, we conclude that defendant’s conclusory allegations are
not sufficient.
¶ 38 In his supplement affidavit, defendant averred that his delay in filing was not due to his
culpable negligence because he relied on the transcript of the plea hearing and order of
commitment and sentence. Once defendant realized that DOC would not award the credit he
expected, his filing was delayed due to “numerous and prolonged lockdowns” during which he
could not access the prison law library.
¶ 39 Even accepting defendant’s averments as true, as we must at this second stage of
proceedings (Domagala, 2013 IL 113688, ¶ 35), we cannot agree that he made the requisite
showing of sufficient factual allegations demonstrating he was not culpably negligent for filing
beyond the limitations period detailed in the Act. See 725 ILCS 5/122-1(c) (West 2012). The
record reveals, and defendant concedes, that the sentence calculation worksheet, which defendant
received in September 2009, illustrated the discrepancy between his understanding of his
presentence custody credit and the DOC calculation. Thus, defendant knew of the discrepancy in
2009. However, defendant did not file the pro se petition until March 2013.
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¶ 40 “ ‘[W]hether delay is due to culpable negligence depends not only on when the claim is
discovered [by the defendant] but [also] on how promptly the defendant takes action after the
discovery.’ ” People v. Ramirez, 361 Ill. App. 3d 450, 453-54 (2005) (quoting People v. Davis,
351 Ill. App. 3d 215, 218 (2004)). In his reply brief, defendant argues that he cannot be deemed
culpably negligent when he “reasonably relied” on the trial court’s statements at the hearing and
on the mittimus and “mistakenly assumed” that the DOC’s “mistake” would be remedied, and
acted when it “became clear” that the DOC did not intend to award him the contested credit.
¶ 41 However, defendant pled no facts explaining why he assumed that any alleged error would
be corrected or what steps he took to address the issue with the DOC between 2009 and when he
filed the pro se petition in March 2013. Moreover, his explanation for the filing, i.e., that he acted
when it became clear that DOC would not honor his understanding of the plea agreement, does not
include the date on which he decided to file the pro se petition. Although defendant averred that
once he decided to file, numerous lockdowns prevented access to the prison law library and a
timely filing, he provided no details as to the timing and duration of those lockdowns, or the date
when he began trying to access the law library. This lack of detail is fatal to his claim. See Walker,
331 Ill. App. 3d at 341-42 (the defendant’s “bald assertion” that a lockdown prevented him from
timely filing, without detailing when the lockdown occurred and whether it was during the
applicable filing period, left the court “to speculate” whether the delay was “attributable solely or
substantially” to the lockdown).
¶ 42 An example of the specificity required to demonstrate lack of culpable negligence in filing
an untimely postconviction petition is set forth by the facts pled by the defendant in People v.
Upshaw, 2017 IL App (1st) 151405.
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¶ 43 In that case, the defendant argued that he was not culpably negligent for untimely filing his
postconviction petition, and supported that claim with documents demonstrating that his
correctional facility was under “general lockdown” for 179 days between the date that his petition
for leave to appeal (PLA) to our supreme court was denied and when he filed the postconviction
petition, and that facility staff lost his trial transcripts and legal materials. Id. ¶ 13. Additionally,
the defendant averred that during lockdowns, he was barred access to the prison law library and
that it took two weeks after the end of a lockdown to regain access, and provided affidavits from
prison law library staff detailing the date that his papers were lost and his attempts to retrieve them.
Id. On appeal from the grant of the State’s motion to dismiss, the defendant contended that he
made a substantial showing that he was not culpably negligent in the untimely filing of his petition.
¶ 44 This court agreed, as the documents supporting the defendant’s postconviction petition,
and those filed in response to the motion to dismiss, detailed the lockdowns which the defendant
averred were due to no fault of his own, and how prison staff lost the defendant’s trial transcripts
and legal materials. Id. ¶¶ 25-26. We noted that letters attached to the initial petition demonstrated
that the defendant “spent a great deal of time and effort” attempting to retrieve his papers and
began immediately after his PLA was denied. Id. ¶ 26. Considering the circumstances alleged by
the defendant—that his access to the law library was limited, he began working on his petition
within days of the denial of his PLA, and he was unable to retrieve his legal papers—we concluded
that the defendant carried his burden to provide sufficient and specific facts to make a substantial
showing that he was not culpably negligent in filing his postconviction petition eight months late.
Id. ¶¶ 27, 31.
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¶ 45 In the instant case, however, defendant alleged no facts detailing the steps he took to
resolve the discrepancy in presentence custody credit with the DOC, on what date he realized the
mistake would not be corrected, and when he began the preparation of the pro se petition. In fact,
defendant’s position appears to be that he assumed the DOC would correct the alleged error and
that he acted when it was “clear” that the error would not be corrected. Unlike Upshaw, where the
defendant outlined his actions to explain his delay in filing, here, defendant provides no facts to
explain his inaction between September 2009 and March 2013. See also People v. Rissley, 206 Ill.
2d 403, 421-22 (2003) (finding that the defendant was not culpably negligent when, among other
reasons, he “remained in constant contact with his direct appeal counsel” on whose advice he relied
regarding the postconviction process).
¶ 46 Defendant’s failure to support his claim with specific facts explaining why his untimeliness
should be excused is fatal to his claim. See Hobson, 386 Ill. App. 3d at 233. Accordingly, because
defendant failed to allege specific facts demonstrating he was not culpably negligent for his
untimely filing, the circuit court properly dismissed his untimely postconviction petition.
¶ 47 Defendant next contends that he was denied reasonable assistance when postconviction
counsel “left unrebutted” the arguments in the State’s motion to dismiss. He argues that
postconviction counsel’s “failure” to fulfill the requirements of Rule 651(c) warrants remand for
the appointment of new counsel and further proceedings under the Act.
¶ 48 Pursuant to the Act, if a petition advances to the second stage, an indigent defendant is
appointed counsel, who must ascertain the basis of the defendant’s claims, shape them into an
appropriate legal form, and present them to the court. People v. Lesley, 2018 IL 122100, ¶¶ 31, 33.
There is no constitutional right to postconviction counsel; rather, the right to postconviction
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counsel arises from the Act itself and a defendant is only entitled to “reasonable assistance.”
Perkins, 229 Ill. 2d at 42.
¶ 49 “To assure the reasonable assistance required by the Act, Supreme Court Rule 651(c)
imposes specific duties on postconviction counsel.” Id. Pursuant to the rule, postconviction counsel
must filed a certificate attesting that counsel (1) consulted with the defendant to ascertain his
contentions of constitutional deprivations, (2) examined the record of the trial proceedings, and
(3) made any amendments to the filed pro se petition necessary to adequately present the
defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
¶ 50 Pursuant to the rule, “necessary” amendments include “routine” amendments that avoid
specific bases for dismissal such as ineffective assistance of appellate counsel for failure to raise a
claim on direct appeal. See People v. Turner, 187 Ill. 2d 406, 412-14 (1999) (“[c]ounsel’s failure
to amend the post-conviction petition to allege ineffective assistance of appellate counsel
prevented the circuit court from considering the merits” of the petition). However, there is no
requirement that postconviction counsel “advance frivolous or spurious claims.” People v. Greer,
212 Ill. 2d 192, 205 (2004). “If amendments to a pro se postconviction petition would only further
a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the
rule.” Id.
¶ 51 Substantial compliance with Rule 651(c) is sufficient. People v. Profit, 2012 IL App (1st)
101307, ¶ 18. Postconviction counsel’s filing of a Rule 651(c) certificate attesting that counsel has
complied with the rule creates a rebuttable presumption that counsel has done so. People v.
Gallano, 2019 IL App (1st) 160570, ¶ 26. “Where postconviction counsel files a Rule 651(c)
certificate creating a presumption of compliance, it is the defendant’s burden to overcome the
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presumption by demonstrating his attorney’s failure to substantially comply with the duties
mandated by the rule.” Id. ¶ 26; see also People v. Wallace, 2016 IL App (1st) 142758, ¶ 28 (when
faced with a facially valid 651(c) certificate, the question is “whether the record positively rebuts
the presumption of reasonableness”). We review compliance with a supreme court rule de novo.
Gallano, 2019 IL App (1st) 160570, ¶ 26.
¶ 52 Before addressing the substance of defendant’s arguments on appeal, we note that in
People v. Cotto, 2016 IL 119006, ¶ 41, our supreme court observed that Rule 651(c) “applies only
to a postconviction petition initially filed by a pro se defendant.” See also People v. Mitchell, 189
Ill. 2d 312, 357-58 (2000) (counsel filed the initial postconviction petition and an amended
petition; the court addressed the applicability of Rule 651(c) and noted that because the defendant
“did not file a pro se petition, his attorney could not have violated that provision”).
¶ 53 Here, although defendant initially filed a pro se petition for relief from judgment, the circuit
court granted counsel’s motion to characterize the pro se filing as a postconviction petition and
defendant filed, through counsel, “Defendant-Petitioner’s Recharacterized Petition From Relief
From Void Judgment to a Pro-Se Postconviction Petition.” Accordingly, as defendant had the
assistance of counsel at the first stage of proceedings under the Act, and the circuit court considered
the petition counsel drafted for defendant, Rule 651(c) is inapplicable. See Cotto, 2016 IL 119006,
¶ 41; see also People v. Richmond, 188 Ill. 2d 376, 380-83 (1999) (where a pro se postconviction
petition was filed, Rule 651(c) applies to subsequent representation at the second stage, whether
by retained or appointed counsel). Because appointed counsel drafted and filed the postconviction
petition at the first stage of proceedings under the Act, she did not need to shape defendant’s pro
se petition into proper legal form at the second stage, and accordingly, the principles of Rule 651(c)
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do not apply to the case at bar. See People v. Anguiano, 2013 IL App (1st) 113458, ¶¶ 11, 24
(“Rule 651(c) applies when a defendant proceeds pro se at the first stage and is represented by
counsel at the second stage”); People v. Bennett, 394 Ill. App. 3d 350, 353 (2009) (“Rule 651(c)
is inapplicable when the original petition was not filed pro se”).
¶ 54 Although Rule 651(c) does not apply to this case, defendant is, nevertheless, entitled to a
reasonable level of assistance of counsel at the second stage. Cotto, 2016 IL 119006, ¶¶ 41-42.
Rule 651(c) is merely a vehicle for ensuring this level of assistance at the second stage. Anguiano,
2013 IL App (1st) 113458, ¶ 37. Accordingly, the question in this case is whether postconviction
counsel provided a reasonable level of assistance. See Cotto, 2016 IL 119006, ¶ 43. Our supreme
court has explained that this level of assistance is “ ‘less than that afforded by the federal or state
constitutions.’ ” Id. ¶ 45 (quoting People v. Pendleton, 223 Ill. 2d 458, 472 (2006)).
¶ 55 In People v. Zareski, 2017 IL App (1st) 150836, ¶ 58, we noted that our supreme court had
not explicitly stated a standard on which to evaluate unreasonable assistance claims. We therefore
concluded that “a Strickland-like analysis” was the appropriate standard. Id. ¶ 59; see also
Strickland v. Washington, 466 U.S. 668 (1984). We observed that such a standard “requires an
evaluation of prejudice” which would “prevent pointless remands to trial courts for repeated
evaluations of claims that have no chance of success.” Zareski, 2017 IL App (1st) 150836, ¶ 59.
When a defendant alleges unreasonable assistance for failure to present a claim, this court
examines not just whether postconviction counsel should have presented or amended the claim,
but also whether the failure to do so prejudiced the defendant. Id. ¶ 61; see also People v. Jackson,
205 Ill. 2d 247, 259 (2001) (“To establish the prejudice prong [under Strickland], defendant must
show a reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.”). If we determine that the potential claim had no merit,
then the defendant “cannot receive postconviction relief on that claim, regardless of whether
[postconviction counsel] should have presented it earlier, better, or at all.” Zareski, 2017 IL App
(1st) 150836, ¶ 61.
¶ 56 Here, defendant contends that postconviction counsel’s failure to respond to the State’s
motion to dismiss, with legal and factual arguments “rebutting” the State’s arguments that he was
culpably negligent, and had forfeited several of his claims, was unreasonable. He argues that
counsel’s actions “suggested” that she intended to file a response to the motion to dismiss, yet she
“did nothing.”
¶ 57 Having reviewed the record before us, we cannot say postconviction counsel failed to
provide reasonable assistance where she informed the court she consulted with defendant multiple
times. Moreover, the record demonstrates that postconviction counsel requested continuances in
order to obtain documentation from defendant “pertaining to culpable negligence,” and when she
was unable to obtain defendant’s affidavit, asked the circuit court to writ him to court. She
thereafter filed defendant’s supplemental affidavit averring that he was not culpably negligent
because he relied on court documents and was “subject to numerous and prolonged lockdowns,”
which prevented him from accessing the law library and from filing the pro se petition until March
2013. At the hearing on the motion to dismiss, counsel argued that defendant did not learn he
would not receive credit until he was in prison and was then prevented from accessing the law
library due to “numerous and prolonged” lockdowns.
¶ 58 Defendant points to nothing in the record which shows that postconviction counsel was
unfamiliar with the need to demonstrate that an untimely petition was not the result of culpable
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negligence, or that postconviction counsel failed to muster all available evidence relevant to his
claim. Rather, he appears to conclude that counsel’s failure to provide additional evidence, in and
of itself, supports his claim that he was denied reasonable assistance of postconviction counsel.
However, defendant’s argument that his postconviction counsel should have alleged additional
facts and provided additional evidentiary support assumes that those facts existed and that counsel
could have obtained the required evidentiary support. In other words, he asks this court to speculate
that postconviction counsel could have successfully alleged a lack of culpable negligence. We
cannot engage in such speculation when it is defendant’s burden to establish prejudice. Zareski,
2017 IL App (1st) 150836, ¶¶ 59, 61.
¶ 59 Moreover, the record reveals that defendant’s postconviction counsel filed a certificate
pursuant to Rule 651(c). Although Rule 651(c) does not apply here as the postconviction petition
was prepared and filed by counsel (Cotto, 2016 IL 119006, ¶ 41), postconviction counsel’s Rule
651(c) certificate provides additional support for our conclusion that defendant was not denied
reasonable assistance of postconviction counsel. Defendant does not argue that postconviction
counsel did not communicate with him as required by Rule 651(c) or that the portions of the record
presumably reviewed by postconviction counsel contained facts which would clarify whether the
delay in filing was not due to his culpable negligence. Rather, defendant contends that counsel
should have acquired unspecified documents to support his assertion that he was subject to
numerous prison lockdowns.
¶ 60 However, to accept that proposition would require this court to ignore the presumption,
created by the filing of a Rule 651(c) certificate, that postconviction counsel “made a concerted
effort to obtain” evidence in support of defendant’s postconviction claims, but was unable to do
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so, unless that presumption is “flatly contradicted by the record.” People v. Johnson, 154 Ill. 2d
227, 241 (1993); see also Wallace, 2016 IL App (1st) 142758, ¶ 27 (a reviewing court may
“reasonably presume postconviction counsel made a concerted effort to obtain evidence in support
of [the defendant’s] postconviction claims, but was unsuccessful”). Here, the record does not
contradict the presumption. Based upon counsel’s filings and statements before the circuit court
regarding her communication with defendant, we presume she asked him whether there were
additional specific facts to explain why the delay in filing was not due to his culpable negligence.
Based upon counsel’s filing of a Rule 651(c) certificate and defendant’s supplemental affidavit,
and her arguments before the circuit court, we presume that the answers counsel received from
defendant were not helpful to defendant’s claim or else they would have been incorporated into a
supplemental petition.
¶ 61 Ultimately, defendant’s claim of prejudice is speculative, which is not sufficient to
establish the prejudice prong of the Strickland-like analysis. Zareski, 2017 IL App (1st) 150836,
¶¶ 59, 61; see also People v. Bew, 228 Ill. 2d 122, 135 (2008) (proof of prejudice cannot rest on
mere conjecture or speculation). Because defendant was not prejudiced, he cannot establish
unreasonable assistance of postconviction counsel and his claim must fail.
¶ 62 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 63 Affirmed.
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