2022 IL App (1st) 200203-U No. 1-20-0203 Order filed May 4, 2022 Third 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. 16 CR 66 ) JOSE LUNA, ) Honorable ) Joan M. O’Brien, Defendant-Appellant. ) Judge, presiding.
JUSTICE MCBRIDE delivered the judgment of the court. Justices Ellis and Burke concurred in the judgment.
ORDER
¶1 Held: There was no merit to defendant’s contention that postconviction counsel provided unreasonable assistance by failing to amend petition to state if (1) defendant asked plea counsel to appeal his convictions within 30 days of his guilty plea, (2) defendant wanted to withdraw his plea, and (3) any cognizable basis existed to withdraw the plea. Because counsel filed two Rule 651(c) certificates, we presume that counsel asked defendant these questions and received replies that negated any claim for relief; counsel had no duty to amend the petition to include counterproductive facts. No. 1-20-0203
¶2 Defendant Jose Luna appeals from the dismissal, on the State’s motion, of his pro se
petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2016)). On appeal, defendant contends that he was denied reasonable assistance by postconviction
counsel’s failure to amend the petition to state if defendant wished to withdraw his guilty plea, had
a cognizable basis for withdrawal, or asked plea counsel to file an appeal within 30 days of the
plea. We affirm.
¶3 Following a traffic stop on December 10, 2015, defendant was charged by indictment with
driving with a revoked or suspended driver’s license (625 ILCS 5/6-303(a), (d) (West 2014)). He
then filed a motion to quash arrest and suppress evidence.
¶4 At the July 26, 2016, hearing on the motion, Chicago police officer Jeffrey Curia testified
that on December 10, 2015, he observed defendant driving a powder-blue Oldsmobile. Curia
previously arrested defendant for driving under the influence, and knew that defendant’s driver’s
license was subject to a statutory summary suspension and that it was not “possible” that defendant
had regained his license by that date. After curbing defendant’s vehicle, Curia requested a driver’s
license and proof of insurance, and defendant replied, “You know I don’t have a license.” Curia
then arrested defendant. During cross-examination, Curia’s dash camera video was admitted and
played for the court. 1
¶5 Defendant testified that the windows of his vehicle, including the driver’s side window,
were “tinted dark” and could not be seen through. During cross-examination, he admitted that he
drove on a suspended license and told Curia that his license was suspended.
1 The dash camera video is not included in the record on appeal.
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¶6 After argument, the trial court denied the motion to quash arrest and suppress evidence.
That same day, the court held a conference pursuant to Supreme Court Rule 402 (eff. July 1, 2012),
following which defendant entered a plea of guilty to driving on a revoked or suspended driver’s
license and was sentenced to two years in prison.
¶7 During the plea hearing, the court verified that defendant understood the charge and that
his criminal background rendered him eligible for an extended-term sentence of up to six years in
prison. The court also confirmed that defendant discussed the plea with counsel, and plea counsel
represented that defendant understood its ramifications. The court accepted the plea and
admonished defendant that if he wished to appeal, he must file a written motion to withdraw the
plea within 30 days stating his reasons for withdrawal. Were the motion granted, the case would
be set for trial; were it denied, defendant would have 30 days to appeal from that order. Defendant
stated that he understood.
¶8 Defendant did not move to withdraw his guilty plea. On September 8, 2016, he filed a pro
se notice of appeal alleging that he was denied effective assistance of counsel and that he
“diligently attempted” to file a timely appeal. On December 15, 2016, defendant filed a pro se
motion to file a late notice of appeal, which this court denied on January 11, 2017. See People v.
Luna, No. 1-16-3240 (2017) (disposition order).
¶9 On November 1, 2017, defendant filed a pro se postconviction petition, alleging that he
was subjected to an illegal search and seizure and arrested without probable cause when an officer
testified that he recognized defendant, but defendant never met the officer. The petition further
alleged that plea counsel was ineffective for failing to investigate the case and file an appeal “after
being [so] advised by defendant.” The petition did not allege that defendant wished to withdraw
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his plea. Defendant included two affidavits wherein he attested to the truth of his petition but made
no further assertions of fact. The circuit court docketed the petition and appointed postconviction
counsel. Defendant was present in court when the case was continued several times.
¶ 10 On August 23, 2019, postconviction counsel filed a certificate pursuant to Supreme Court
Rule 651(c) (eff. July 1, 2017), stating that he consulted with defendant in person and
telephonically “on numerous occasions” to ascertain defendant’s contentions of constitutional
deprivation and reviewed the pro se petition, the trial court file, and transcripts. The certificate
asserted that defendant’s pro se filings adequately presented his claims, and there was nothing that
could be added by an additional or supplemental petition. The report of proceedings indicates that
defendant was present in court on this date, and that defendant did not object.
¶ 11 The State then filed a motion to dismiss. On October 25, 2019, postconviction counsel
asked for a continuance in order to discuss the motion with defendant, who was present in court.
Postconviction counsel thereafter filed a response and a second Rule 651(c) certificate. The second
certificate stated that postconviction counsel consulted with defendant in person and telephonically
on numerous occasions, reviewed the trial court files and transcripts, and viewed the December
10, 2015, dashcam video. The certificate concluded that defendant’s pro se pleadings and
documents adequately presented his constitutional claims and “there [was] nothing that can be
added by an additional amended or supplemental petition.”
¶ 12 On January 10, 2020, the circuit court heard argument on the motion to dismiss. The report
of proceedings indicates that defendant was not present in court. Postconviction counsel argued,
relevant here, that defendant made “some effort” to file a direct appeal and that, at this stage of
proceedings under the Act, the court had to take as true defendant’s allegation that he was denied
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effective assistance by plea counsel’s failure to investigate whether the arresting officer recognized
defendant and had probable cause to arrest. The court granted the State’s motion to dismiss.
¶ 13 On appeal, defendant contends that he was denied the reasonable assistance of
postconviction counsel because counsel did not amend the pro se petition to state if defendant
wanted to withdraw the guilty plea, had any cognizable bases for withdrawal, or asked plea counsel
to file an appeal within 30 days of the plea. Defendant argues that postconviction counsel’s failure
to shape his pro se claims into the “appropriate legal form” violated Rule 651(c) and warrants
remand for further proceedings under the Act.
¶ 14 The Act provides a three-stage process for adjudicating petitions. People v. Lesley, 2018
IL 122100, ¶ 31. At the first stage, the circuit court may dismiss a petition if it determines, within
90 days, that the petition is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10
(2009). If not dismissed at the first stage, the petition advances to the second stage. Id.
¶ 15 At the second stage, counsel may be appointed for the petitioner, and the State is allowed
to file a motion to dismiss or an answer. Id. at 10-11. To survive dismissal at the second stage, a
petition and any accompanying documentation must make a substantial showing of a constitutional
violation. People v. Bailey, 2017 IL 121450, ¶ 18. The defendant’s claims must be liberally
construed in light of the trial record, and all factual allegations not positively rebutted by the record
are accepted as true. People v. Hall, 217 Ill. 2d 324, 334 (2005). “The question raised in an appeal
from an order dismissing a postconviction petition at the second stage is whether the allegations
in the petition, liberally construed in favor of the petitioner and taken as true, are sufficient to
invoke relief under the Act.” People v. Sanders, 2016 IL 118123, ¶ 31. The circuit court dismissed
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defendant’s petition at the second stage. We review the dismissal of a postconviction petition
without an evidentiary hearing de novo. Id.
¶ 16 Here, defendant does not challenge the dismissal of his petition on the merits; rather, he
only challenges the assistance he received from postconviction counsel.
¶ 17 Pursuant to the Act, if a petition advances to the second stage, an indigent defendant is
appointed counsel, who must learn the basis of the defendant’s claims, shape them into an
appropriate legal form, and present them to the court. Lesley, 2018 IL 122100, ¶¶ 31, 33; see also
People v. Johnson, 154 Ill. 2d 227, 237-38 (1993) (the Act “contemplates that the attorney
appointed to represent an indigent petitioner will ascertain the basis of [his] complaints, shape
those complaints into appropriate legal form and present [them] to the court”). There is no
constitutional right to postconviction counsel; rather, the right to postconviction counsel arises
from the Act itself and a defendant is only entitled to “reasonable assistance.” People v. Perkins,
229 Ill. 2d 34, 42 (2007).
¶ 18 “To assure the reasonable assistance required by the Act, Supreme Court Rule 651(c)
imposes specific duties on postconviction counsel.” Id. Rule 651(c) states, in pertinent part, that
counsel may show compliance with the rule by filing a certificate attesting that counsel:
“has consulted with petitioner by phone, mail, electronic means or in person to ascertain
his or her contentions of deprivation of constitutional rights, has examined the record of
the proceedings at the trial, and has made any amendments to the petitions filed pro se that
are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c)
(eff. July 1, 2017).
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¶ 19 Pursuant to the rule, “necessary” amendments include “routine” amendments that avoid
specific bases for dismissal such as alleging 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.
¶ 20 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
presumption by demonstrating his attorney’s failure to substantially comply with the duties
mandated by the rule.” Id. We review compliance with a supreme court rule de novo. Id.
¶ 21 In the case at bar, postconviction counsel filed a certificate pursuant to Rule 651(c) stating
that he consulted with defendant in person and telephonically “numerous” times to ascertain
defendant’s contentions of constitutional deprivation and reviewed the pro se petition, the trial
court file, and transcripts, and there was no need to amend the pro se petition as it adequately
presented defendant’s claims. Defendant was in court on the date that counsel filed the certificate.
Thereafter, postconviction counsel filed a response to the State’s motion to dismiss and a second
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Rule 651(c) certificate. Thus, counsel has created a rebuttable presumption of compliance with the
rule.
¶ 22 Defendant, however, contends that the presumption of reasonable assistance was rebutted
because postconviction counsel did not “shape” his claim that he desired to pursue a direct appeal
into the appropriate legal form by amending the petition to include whether defendant wanted to
withdraw his plea, had any cognizable bases for withdrawal, or instructed plea counsel to file an
appeal within 30 days of the plea. He concludes that “regardless of the underlying merit” of his
claims, the cause must be remanded for compliance with the rule.
¶ 23 The State responds that defendant’s arguments are speculative when nothing in the record
indicates that he wanted to withdraw his plea and that postconviction counsel cannot be faulted for
not raising the argument if defendant did not actually ask plea counsel to withdraw the plea or
assert a basis for withdrawal.
¶ 24 For the reasons that follow, we conclude that the record does not exclude the possibility
that the amendments that defendant argues are “necessary” would have been counterproductive to
his claims, and therefore, not necessary within the meaning of Rule 651(c).
¶ 25 Initially, we agree with the State that the need for amendments was speculative, in that
defendant cannot establish that the amendments would have supported his claims. Although we
also agree with defendant that he is not required to establish the underlying merits of his petition,
in order to warrant remand, defendant must show that postconviction counsel failed to perform the
duties required by Rule 651(c). While the rule requires postconviction counsel to make necessary
amendments, counsel is not required to make amendments that undermine a claim or clarify a
fatally flawed claim.
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¶ 26 In People v. Edwards, 197 Ill. 2d 239, 253-54 (2001), our supreme court determined that
in order to avoid dismissal at the first stage of proceedings under the Act, a petition alleging that
plea counsel failed to perfect a direct appeal generally only needs to state that the defendant
requested an appeal and counsel ignored that request. “[A] pro se defendant, even if he pled guilty,
cannot be required to demonstrate how his appeal would have been successful in order to establish
that he was prejudiced by his attorney’s failure to pursue a requested appeal.” (Emphasis omitted.)
Id. at 253. Rather, to make a showing of a constitutional violation due to counsel’s failure to perfect
an appeal at the first stage, the defendant must “demonstrate a reasonable probability that, ‘but for
counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.’ ”
Id. at 252 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). In those cases where the
record contains nothing to show that defense counsel reviewed the plea proceedings for error or
consulted with defendant regarding grounds for an appeal before deciding not to file a motion to
withdraw the guilty plea, a reviewing court must take the defendant’s allegation that his attorney
ignored his request for an appeal “as true” when determining whether the petition is frivolous.
Edwards, 197 Ill. 2d at 253-54.
¶ 27 However, the Edwards court noted that it was only determining that the circuit court erred
in summarily dismissing the defendant’s petition at the first stage of proceedings under the Act,
not that he was entitled to an evidentiary hearing on that claim. Id. at 257. “To merit an evidentiary
hearing on his claim that he told his trial counsel to file a motion to withdraw his guilty plea and
that counsel was constitutionally ineffective for failing to do so, defendant will have to make a
substantial showing to that effect.” Id. at 257-58. In other words, although the petition only stated
that the defendant asked counsel to file an appeal, the court recognized that due to the requirements
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of Supreme Court Rule 604(d) (eff. Aug. 1, 1992), postconviction counsel would have to shape
the claim into one that plea counsel failed to file a motion to withdraw the plea. Id. at 241-42, 257-
58.
¶ 28 Here, defendant challenges postconviction counsel’s failure amend the petition to include
a claim that defendant wanted to withdraw his guilty plea and the basis for that withdrawal. The
fatal flaw in this argument is that he cannot differentiate between the postconviction counsel’s
alleged unreasonable assistance and the potential weakness in his claim.
¶ 29 In the present case, based upon postconviction counsel’s two Rule 651(c) certificates, a
presumption exists that counsel spoke to defendant in person and by telephone numerous times,
reviewed the trial court files, transcripts, and the dash camera video, as well as defendant’s
postconviction filing, and there was “nothing that can be added by an additional amended or
supplemental petition.” Based upon counsel’s filings, we presume he asked defendant if defendant
told plea counsel that he wished to withdraw his plea and the reasons for withdrawal, and if
defendant instructed plea counsel to file an appeal within 30 days. Moreover, based upon counsel’s
filing of two Rule 651(c) certificates and counsel’s decision not to file a supplemental petition, we
presume that the answers counsel received from defendant were not helpful to defendant’s claims
or else they would have been incorporated into a supplemental petition. Defendant’s argument,
taken at face value, apparently is that counsel should have amended the petition to include those
negative facts. However, to amend the petition in that manner would not have been consistent with
shaping defendant’s complaints into appropriate legal form (Johnson, 154 Ill. 2d at 238).
Postconviction counsel does not have a duty to make amendments that torpedo defendant’s claim.
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¶ 30 We further conclude that postconviction counsel was not required, under the Act and
Turner, to make a routine amendment to prevent a procedural bar. Here, the flaw in defendant’s
claim is not procedural, but substantive. As a condition precedent for a direct appeal, defendant
was obliged to file a motion to withdraw his plea in the trial court See People v. Flowers, 208 Ill.
2d 291, 300-01 (2003). Whether defendant wanted to withdraw his plea and whether cognizable
grounds existed for the withdrawal are part of the substance of an Edwards-type claim (Edwards,
197 Ill. 2d at 257-58). Turner is thus distinguishable.
¶ 31 We are unpersuaded by defendant’s reliance on People v. Garcia, 2021 IL App (1st)
191820, and People v. Suarez, 224 Ill. 2d 37 (2007).
¶ 32 In Garcia, the defendant entered a plea of guilty to armed robbery and aggravated discharge
of a firearm, and was sentenced to concurrent sentences of 30 years and 15 years. Garcia, 2021 IL
App (1st) 191820, ¶ 4. The defendant thereafter filed a pro se postconviction petition, and
postconviction counsel was appointed. Id. ¶ 5. Postconviction counsel filed an “amended
postconviction petition” and Rule 651(c) certificate asserting that counsel spoke to the defendant,
examined the trial transcript and pro se petition, and that the “supplemental petition” adequately
presented the defendant’s claims. Id. The amended petition alleged that defendant was denied
effective assistance when plea counsel incorrectly advised him that in addition to good time credit,
he would receive credit for each day he spent in a school program, and also that plea counsel failed
to comply with the defendant’s request to file a notice of appeal. Id. The defendant averred that if
he had known he would not receive school credit, he would not have entered a guilty plea. Id. The
circuit court granted the State’s motion to dismiss.
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¶ 33 On appeal, this court found that the defendant was denied reasonable assistance of
postconviction counsel because counsel failed to explain the grounds for withdrawing the guilty
plea. Id. ¶ 11. In other words, to state a claim that plea counsel was ineffective for failing to file
an appeal, the defendant “needed” to state the grounds for the withdrawal of his guilty plea, which
included postconviction counsel amending the petition to include those grounds and attaching the
necessary supporting affidavits. Id. ¶ 9 (citing Edwards, 197 Ill. 2d at 257-28). This court
concluded that because postconviction counsel did not make such amendments, counsel did not
provide the reasonable assistance required by Rule 651(c), and remanded the cause for further
proceedings. Id. ¶¶ 11-14.
¶ 34 We find this instant case distinguishable from Garcia on the facts. Initially, unlike Garcia,
defendant did not state in his petition that his guilty plea was unknowing. Moreover, the record
reveals that postconviction counsel repeatedly consulted with defendant regarding his claims and
that defendant was present when postconviction counsel informed the court that defendant’s pro
se filings adequately presented his claims. Postconviction counsel discussed the State’s motion to
dismiss with defendant, and thereafter filed a second Rule 651(c) certificate representing that
“nothing *** can be added by an additional amended or supplemental petition.” Thus, the facts in
this case establish that although postconviction counsel did not amend the pro se petition, counsel
repeatedly consulted with defendant regarding the issues therein. See People v. Wallace, 2016 IL
App (1st) 142758, ¶ 27 (“A court may reasonably presume postconviction counsel made a
concerted effort to obtain evidence in support of postconviction claims, but was unsuccessful.”).
¶ 35 In Suarez, postconviction counsel amended the defendant’s pro se petition by expanding
on one claim and adding a new claim. Suarez, 224 Ill. 2d at 41, 43-44. However, counsel did not
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file a certificate pursuant to Rule 651(c). Id. at 41. The defendant therefore argued the record did
not demonstrate that postconviction counsel consulted with him in order to ascertain his
constitutional claims. Id. at 43.
¶ 36 Our supreme court rejected the argument that compliance was shown by the mere fact that
counsel filed an amended petition. Id. at 43-44. The court then examined whether postconviction
counsel’s failure to comply with Rule 651(c) constituted harmless error. In that context, the court
stated, “remand is required where postconviction counsel failed to fulfill the duties of consultation,
examining the record, and amendment of the pro se petition, regardless of whether the claims
raised in the petition had merit.” Id. at 47.
¶ 37 Suarez does not stand for the proposition that every petition requires an amendment.
Rather, it held that postconviction counsel must consult with a defendant either by mail or in
person, ascertain his or her alleged grievances, examine the record of proceedings at the trial, and
amend the petition where necessary. Id. at 46.
¶ 38 In the case at bar, postconviction counsel’s two Rule 651(c) certificates asserted that he
consulted with defendant in person and by telephone and examined the trial record, transcripts,
and dash camera video, and that defendant’s pro se pleadings adequately presented defendant’s
alleged constitutional deprivations. Moreover, defendant was in court when postconviction
counsel filed the first Rule 651(c) certificate and told the court that he would not be amending
defendant’s pro se filing. In the second Rule 651(c) certificate, postconviction counsel specifically
asserted that “nothing” could be added by an additional amended or supplemental petition, and
stood on defendant’s pro se filing. Although defendant argues that counsel was obligated to amend
the petition because counsel argued in favor of defendant’s petition, “postconviction counsel has
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the option of standing on the allegations in the pro se petition” or withdrawing as counsel. See
People v. Malone, 2017 IL App (3d) 140165, ¶ 10.
¶ 39 Here, the record reflects that postconviction counsel repeatedly consulted with defendant
regarding his claims, and repeatedly represented to the circuit court that defendant’s pro se filing
adequately presented his claims. Under the circumstances of this case, we reject defendant’s
assertion that postconviction counsel’s failure to amend the pro se petition to include facts
clarifying whether defendant asked plea counsel to file a motion to withdraw the guilty plea and
to file an appeal within 30 days reflected unreasonable assistance rather than an inability to provide
facts to support defendant’s claims. Accordingly, defendant has not overcome the presumption of
compliance with Rule 651(c) created by the filing of two Rule 651(c) certificates, and we affirm
the circuit court’s dismissal of defendant’s postconviction petition.
¶ 40 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 41 Affirmed.
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