2022 IL App (5th) 200151-U NOTICE NOTICE Decision filed 09/01/22. The This order was filed under text of this decision may be NO. 5-20-0151 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 09-CF-2710 ) DONALD R. MILLER, ) Honorable ) Kyle A. Napp, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Justices Wharton and Vaughan concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment is reversed to allow for further consideration of the defendant’s motion for appointment of a medical expert and further second-stage postconviction proceedings. Additionally, the record shows that postconviction counsel failed to comply with the mandates of Illinois Supreme Court Rule 651(c).
¶2 The defendant, Donald R. Miller, appeals the trial court’s second-stage dismissal of his
amended postconviction petition. The defendant contends that remand for new second-stage
proceedings with new counsel is necessary because (1) the trial court failed to recognize it had
discretion to appoint a medical expert to assist the defendant during second-stage postconviction
proceedings, and (2) postconviction counsel failed to comply with Illinois Supreme Court Rule
651(c) (eff. July 1, 2017). For the following reasons, we reverse and remand for further second-
stage proceedings with directions to appoint new counsel for the defendant.
1 ¶3 I. BACKGROUND
¶4 Following a jury trial, the defendant was found guilty of first degree murder (720 ILCS
5/9-1(a)(2) (West 2008)) in connection with the death of his three-month-old son, Ashton Miller.
The evidence presented at the defendant’s jury trial is set forth in detail in this court’s prior order,
People v. Miller, 2013 IL App (5th) 110437-U, and is repeated here only to the extent necessary
for this appeal.
¶5 On October 26, 2011, the defendant was living with Heather Smith and their two children
at the home of the defendant’s sister (the Vaughns). At trial, Smith testified that at approximately
8 p.m., she and the defendant were high on heroin and getting ready for bed. Their infant son,
Ashton, was acting fussy and was crying. The defendant told Smith that she better get Ashton to
stop crying. The defendant took Ashton, shook him, and told him to “shut up.” The defendant told
Ashton that he could not stand him. The defendant then put his hand over Ashton’s face. The
defendant also put a pillow over Ashton so that the Vaughns, who lived downstairs, would not
hear Ashton crying. According to Smith, the defendant then “punched [Ashton] in the butt.” Smith
asked if she could take Ashton downstairs to the Vaughns, but the defendant refused. Smith
attempted to contact her sister to take Ashton, but her sister was unable to come and get Ashton.
¶6 Smith then picked up the infant, who was “breathing hard *** like trying to catch his
breath.” She took Ashton into the other room because she did not want the defendant to hurt Ashton
anymore. Smith laid Ashton face down on the couch and then went back to the bedroom to sleep.
She did not hear Ashton the rest of the night. At approximately 4 a.m., Smith woke up and the
defendant was already awake. They laid in bed and talked for 15 to 20 minutes before Smith
checked on Ashton. When Smith went to check on the baby, the defendant said, “I hope he’s not
dead.” Smith found Ashton unresponsive and purple. Smith testified that Ashton was not in the
2 same position as when she laid him on the couch. Ashton had “scooted up a little” and his face
was “buried in the cushions.” Smith began screaming that Ashton was dead. The defendant ran
downstairs and woke up the Vaughns. The defendant’s sister ran upstairs, called 911, and began
to administer CPR with the paramedics on the phone.
¶7 First responders answered the call for a three-month-old child who was not breathing.
When Eddie Lee, the fire chief of the Mitchell Fire Protection District, arrived, two women were
attempting to perform CPR on Ashton. Lee took over CPR but found no signs of life. He noticed
darkness around Ashton’s mouth, nose, and eye area and saw bruising and discoloration. An
ambulance crew arrived and took over for Lee. Joe Sullivan, an emergency medical technician for
the ambulance service, and his partner took Ashton to the ambulance to continue CPR. Once inside
the ambulance, Sullivan could see rigor mortis had already set in. After conferring with a doctor,
Sullivan ceased resuscitation efforts and contacted the coroner.
¶8 Detective Carol Presson attended the autopsy of Ashton. After the autopsy, Detective
Presson interviewed the defendant and Smith. During Smith’s second interview, detectives
confronted Smith with an information charging her with first degree murder and aggravated battery
of a child. Smith then stated, “I don’t know if it can help me,” and proceeded to tell the detectives
about the defendant’s mistreatment of Ashton, including the shaking, hitting, and placing of the
pillow over him. According to Detective Presson, Smith became more “believable” after being
shown the charging document. The detective stated Smith’s demeanor changed, her eye contact
was better, and she stopped repeating the detective’s questions. Prior to this interview, Smith had
not informed anyone that the defendant hurt Ashton. Smith had only stated that she laid Ashton
face down on the couch.
3 ¶9 Dr. Raj Nanduri, a forensic pathologist, performed the autopsy on Ashton. Dr. Nanduri
noted several injuries to Ashton, including abrasions on his face and bruises on his body. Dr.
Nanduri did not observe any signs of disease or sickness in Ashton. Dr. Nanduri opined that the
injuries were not caused by Ashton and were inflicted upon him near the time of death. Due to
abrasions on Ashton’s face and bruises on his body, Dr. Nanduri did not believe Ashton’s death
was a regular sleep-related asphyxia where a baby is laid on its stomach and unable to get air. Dr.
Nanduri concluded that Ashton died from suffocation-type asphyxia and classified Ashton’s death
as a homicide. Dr. Nanduri testified that the clues found in the autopsy were consistent with what
Smith said occurred and that after watching Smith’s second interview, Dr. Nanduri’s suspicions
about the cause of death were confirmed. Dr. Nanduri opined that Ashton was injured, put down,
and passed away within approximately 10 minutes of each other. Dr. Nanduri estimated that
Ashton had been dead anywhere from four to six hours when he was found, “give or take an hour”
either way. Dr. Nanduri testified that Ashton did not die as a result of shaken baby syndrome or
sudden infant death syndrome.
¶ 10 The other evidence at trial indicated that the defendant had previously abused Ashton and
Smith. This included an incident where the defendant gave Ashton a black eye and asked Smith to
tell people this was caused by the dog knocking Ashton off the couch. Other witnesses confirmed
seeing Ashton with a black eye and being told the injury was caused by the dog. Finally, Johnny
Washington, an inmate at the Madison County jail, testified about two conversations he had with
the defendant, who was incarcerated at the same time. According to Washington, the defendant
made several incriminating statements about Ashton’s death. For example, Washington testified
that he asked the defendant if he killed Ashton. The defendant replied, “I was f*** up, but I know
I did.” The defendant did not present any evidence.
4 ¶ 11 Prior to submitting the case to the jury, the defense requested that the jury be instructed on
the offense of endangering the life or health of a child (720 ILCS 5/12-21.6 (West 2010)). The trial
court instructed the jury on this offense, but the jury found the defendant guilty of first degree
murder. The trial court initially sentenced the defendant to 35 years’ imprisonment, but that
sentence was later reduced to 30 years. The defendant appealed, arguing that the State had failed
to prove him guilty beyond a reasonable doubt. This court affirmed the defendant’s conviction.
See People v. Miller, 2013 IL App (5th) 110437-U.
¶ 12 The defendant filed a pro se “Petition for Post-Conviction Relief” (pro se petition) raising
several claims of ineffective assistance of counsel. The defendant alleged that defense counsel was
ineffective for not obtaining a second opinion from a pathologist regarding the manner of Ashton’s
death. The defendant asserted that Dr. Nanduri was unable to offer an exact explanation as to how
the defendant’s actions caused Ashton to suffocate. The defendant further asserted that Ashton had
been put to sleep by Smith and was placed lying face down in the corner of a couch. The defendant
argued that because the manner of death was at issue in his case, defense counsel’s failure to obtain
an expert opinion as to the manner of death “caused the jury to deliberate without full information.”
In support of his argument, the defendant attached affidavits from defense counsel, Scott Turner,
and counsel for the defendant’s direct appeal, Robert Burke.
¶ 13 Turner’s affidavit provided the following. Defense counsel averred that one of the issues
in the defendant’s case was Ashton’s cause of death. In order to refute Dr. Nanduri’s testimony,
defense counsel attempted to contact “Dr. Graham,” an expert pathologist the public defender’s
office had used in the past. According to the affidavit, Dr. Graham was unwilling to assist the
defense at trial because he had a working relationship with Dr. Nanduri and was unwilling to
provide a contrary opinion. Defense counsel asserted that he had no other option but to seek an
5 expert outside of the geographical area. Defense counsel averred that after searching in several
different areas, he determined the expense of hiring “one of these experts” was more than the
public defender’s budget could afford. As a result, defense counsel proceeded to trial in the
defendant’s case without an expert. Defense counsel indicated that he believed he did a more than
adequate job of cross-examining Dr. Nanduri but could not “help but think that a pathologist that
would contradict the testimony of Dr. Nanduri could have changed the result.”
¶ 14 Burke’s affidavit provided as follows. Burke averred that he had spoken with Dr. Shaku
Teas, an expert in forensic pathology. According to Burke, Dr. Teas “sounded shocked and
dismayed” when Burke explained the general testimony used to convict the defendant. Dr. Teas
agreed to review the reports, photographs, and testimony in the case and author a preliminary
report. Burke gathered the materials requested by Dr. Teas and prepared them for delivery.
¶ 15 In an affidavit from the defendant’s father, he indicated that he had received materials from
Burke to send to Dr. Teas. The defendant’s father further indicated that he sent these materials to
Dr. Teas, along with a check for $1500, as payment of an initial fee to begin work on a preliminary
report about Ashton’s death.
¶ 16 In his pro se petition, the defendant also alleged that defense counsel was ineffective for
failing to advise the defendant as to the necessity of testifying in his own defense to rebut the
testimony of Smith and Washington. The defendant claimed he was told by defense counsel that
the State lacked sufficient evidence and that the defendant’s testimony was not needed. The
defendant included the testimony he would have provided had he been called to testify and asserted
that his testimony was necessary. The defendant further alleged that defense counsel was
ineffective for failing to call the defendant’s mother, his father, his sister, and Franklin Hays as
witnesses at trial to rebut Smith’s testimony about the day Ashton allegedly received a black eye
6 from the defendant. In support of these allegations, the defendant attached his own affidavit and
the affidavits of his father, his sister, and Hays, as well as the grand jury testimony of the
defendant’s mother.
¶ 17 The trial court advanced the pro se petition to the second stage and appointed counsel, John
Delaney. The State filed a motion to dismiss, and Delaney subsequently filed an “Addendum to
Post-Conviction Petition.” In this addendum, Delaney requested the trial court consider a letter,
purportedly from Dr. Teas, as part of the defendant’s pro se petition. The attached letter indicated
that Dr. Teas had reviewed the autopsy report, photographs, and some of the transcripts. Dr. Teas
opined that the cause of death was an issue and that the case “definitely warrant[ed] a second look
in detail.” Dr. Teas wrote that she did not see any obvious evidence to conclude that the cause of
death was homicidal suffocation. Dr. Teas provided her fees and indicated that she needed to see
Ashton’s photographs and review the histology slides taken at the autopsy. The trial court held a
hearing on the State’s motion to dismiss. After hearing arguments from the parties, the trial court
took the matter under advisement. The trial court subsequently issued an order granting the State’s
motion to dismiss, detailing the court’s reasons for dismissing the defendant’s case.
¶ 18 The defendant appealed the trial court’s order of dismissal, arguing that the order should
be vacated and the cause remanded for new second-stage postconviction proceedings because
Delaney labored under a per se conflict of interest and failed to fulfill his duties under Rule 651(c).
The defendant also alleged that the trial court erred in dismissing the defendant’s pro se petition.
This court determined that Delaney had a conflict of interest because he represented Smith in her
plea negotiations with the State to testify against the defendant at his trial. We issued a summary
order vacating the trial court’s order and remanded the case for the appointment of new counsel
7 and new second-stage proceedings. People v. Miller, No. 5-15-0420 (2019) (unpublished summary
order under Illinois Supreme Court Rule 23(c)).
¶ 19 While his appeal was pending, the defendant filed a petition for relief from judgment
pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)), citing
Delaney’s conflict of interest. 1 The defendant requested that his pro se petition be reinstated for
new second-stage proceedings. Delaney subsequently filed a motion to withdraw as counsel for
the defendant. The trial court granted Delaney leave to withdraw, and new postconviction counsel,
Calvin Fuller, was appointed to represent the defendant. Postconviction counsel filed a motion
requesting that the defendant’s case be returned to second-stage proceedings due to Delaney’s
conflict of interest.
¶ 20 Ultimately, the defendant’s case returned to second-stage postconviction proceedings. The
trial court ordered that postconviction counsel be given leave to file an amended postconviction
petition.
¶ 21 Postconviction counsel subsequently filed “Defendant’s Motion for Appointment of
Independent Medical Examiner” (motion for appointment of a medical expert) requesting to have
an expert appointed to review the discovery and testify at the defendant’s “Second and/or Third
Stage Post-Conviction Proceedings.” The motion alleged that an expert’s testimony would be
relevant and material to the defendant’s case and “may tend to provide evidence that will lend to
[the defendant’s] continued assertion that he is Not Guilty of the offenses for which he was
convicted.”
1 Attached to this petition were two additional letters the defendant had received from Dr. Teas. In these letters, Dr. Teas indicated that she needed to review the histology slides before she could prepare a report. In the second letter, Dr. Teas stated that she was officially retired and that if she did not receive the additional materials soon, she would not be able to review the defendant’s case. 8 ¶ 22 Before the trial court heard or ruled on the motion for appointment of a medical expert,
postconviction counsel filed “Petitioner’s Amended Post-Conviction Motion” (amended petition).
The amended petition realleged the general claims included in the pro se petition, including that
defense counsel was ineffective for failing to obtain the opinion of a second pathologist to rebut
Dr. Nanduri’s opinion as to Ashton’s cause of death. The amended petition referenced Turner’s
affidavit. The amended petition noted that the court file did not contain a formal motion for the
appointment of an expert or requesting funds to hire an expert. The amended petition also referred
to Burke’s affidavit, alleging it stated that after a preliminary review, Dr. Teas “found multiple
differences with the conclusions of Dr. Nanduri” regarding Ashton’s cause of death. The amended
petition further alleged that Dr. Nanduri’s testimony was “beyond flawed and admitted into
evidence despite multiple inconsistencies and speculation that was not supported by the record.”
¶ 23 The amended petition also alleged that defense counsel was ineffective for failing to object
to certain pretrial issues concerning Smith’s state of mind and prior mental health issues; that
Smith’s statement to police was fraught with threats, coercion, and manipulation, rendering her
statement incredible; that Smith was under the influence of controlled substances at the time of her
statement to police; and that defense counsel was ineffective for failing to object to the State’s
request to bar the mention of Smith’s suicide attempt and prior hospitalization for mental illness.
The amended petition further alleged that defense counsel was ineffective for failing to move for
a judgment notwithstanding the verdict because the testimony at trial was that the defendant’s
actions contributed to Ashton’s death and that accountability had not been alleged or proven.
Finally, the amended petition alleged that defense counsel was ineffective for requesting the jury
be instructed on “other charges.”
9 ¶ 24 Postconviction counsel attached the appellant’s brief filed on behalf of the defendant in
appeal No. 5-15-0420 to the amended petition. In addition to the allegation of Delaney’s conflict
of interest, this appellate brief included a claim that Delaney had not complied with Rule 651(c)
because he did not fully examine the record of proceedings at trial or supplement the defendant’s
pro se petition with readily available scientific sources that contradicted “key portions of Dr.
Nanduri’s testimony.” For example, the brief cited several scientific sources that suggested Dr.
Nanduri’s testimony was conclusory and was contradicted by the standards of practice in her
profession. The brief also claimed that the trial court erred in dismissing the defendant’s pro se
petition without an evidentiary hearing.
¶ 25 Postconviction counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d)
(eff. July 1, 2017), certifying that he had consulted with the defendant to ascertain his contentions
of error in entering a plea of guilty, examined the trial court file and the report of proceedings for
the plea of guilty and sentencing hearings, and made any amendments that were necessary for the
adequate presentation of any defects in those proceedings. Postconviction counsel also filed a Rule
651(c) certificate, certifying that he had consulted with the defendant in person and/or by mail to
ascertain his contentions of deprivation of constitutional rights, examined the record of
proceedings at trial “or” the trial court file and report of proceedings of the plea of guilty, and
made any amendments to the pro se petition that were necessary for an adequate presentation of
the defendant’s contentions.
¶ 26 The State filed an amended motion to dismiss, and the trial court held a hearing on the
State’s motion. At this hearing, the trial court addressed the defendant’s motion for the
appointment of a medical expert. The trial court indicated that it did not think the motion was
appropriate for a second-stage hearing. The State objected to this motion and argued that new
10 evidence is not typically allowed at the second stage. The State contended that the motion was
premature. When asked if he had anything to add, postconviction counsel stated that he agreed
with the State’s assessment of the issue.
¶ 27 The trial court then heard arguments on the State’s amended motion to dismiss. During his
argument, postconviction counsel alleged an additional claim of ineffective assistance regarding
an amendment to the indictment. Postconviction counsel stated that this allegation was not
included in the amended petition and that he “just realized that yesterday” as he “was going further
through the file.” Postconviction counsel did not seek leave to amend the petition, despite this
statement. After hearing the parties’ arguments on the amended motion to dismiss, the trial court
took the matter under advisement.
¶ 28 The trial court subsequently issued an order granting the State’s amended motion to
dismiss. The trial court’s order indicated that it had considered the affidavits attached to the
defendant’s pro se petition, the Dr. Teas letter, and the appellate brief attached to the amended
petition. Regarding the defendant’s claim that defense counsel was ineffective for failing to obtain
the opinion of a second pathologist, the trial court found that neither Burke’s affidavit nor Dr.
Teas’s letter showed that the defendant suffered a substantial constitutional violation as a result of
the defense failing to call an expert witness to contradict Dr. Nanduri’s testimony. The trial court
further found that the defendant’s claims that defense counsel was ineffective for failing to advise
the defendant as to the necessity of testifying in his own defense; for failing to call the defendant’s
mother, his father, his sister, and Franklin Hays as witnesses at trial; and for requesting a jury
instruction on another offense were barred by waiver but, nonetheless, failed to establish a
substantial showing of a constitutional violation. Finally, the order provided that the defendant’s
11 remaining postconviction claims not directly addressed in the order were denied. The defendant
appeals from the trial court’s order.
¶ 29 II. ANALYSIS
¶ 30 The defendant contends on appeal that his case should be remanded for new second-stage
proceedings with new counsel. He requests that this court direct the trial court to appoint a forensic
pathology expert for the defendant because the trial court mistakenly believed it did not have the
authority to appoint such an expert. The defendant also contends that remand is required for new
second-stage proceedings with new counsel because postconviction counsel failed to comply with
Rule 651(c).
¶ 31 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) sets forth
a three-stage process through which a defendant may challenge his or her conviction or sentence
based upon allegations of a substantial violation of the defendant’s state or federal constitutional
rights. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. At the first stage, the trial court must
review the petition and determine whether it is frivolous or patently without merit. Wallace, 2018
IL App (5th) 140385, ¶ 27. If the petition survives the first stage, it advances to the second stage
where the defendant has a right to counsel. Wallace, 2018 IL App (5th) 140385, ¶ 27. Appointed
counsel may file an amended petition, and the State may either file an answer or move to dismiss
the petition. Wallace, 2018 IL App (5th) 140385, ¶ 27. During the second stage of proceedings,
the trial court is foreclosed from engaging in fact-finding and must take as true all well-pleaded
facts in the petition that are not rebutted by the record. People v. Hotwagner, 2015 IL App (5th)
130525, ¶ 29. If the petition shows a substantial violation of constitutional rights, the petition is
advanced to the third stage where an evidentiary hearing is held. Hotwagner, 2015 IL App (5th)
12 130525, ¶ 29. We review the dismissal of a postconviction petition without an evidentiary hearing
de novo. People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).
¶ 32 First, the defendant contends that this court should remand his case for new second-stage
proceedings and instruct the trial court to appoint an expert because expert assistance is necessary
to properly amend the defendant’s postconviction petition to present his claims of constitutional
error. Whether to grant a motion for the appointment of an expert in postconviction proceedings
is a decision that lies within the trial court’s discretion. People v. Wilson, 191 Ill. 2d 363, 370
(2000). The trial court commits error when it refuses to exercise discretion based upon an
erroneous belief that it has no discretion as to the question presented. People v. Queen, 56 Ill. 2d
560, 565 (1974). But not every failure to exercise discretion requires reversal. The trial court’s
failure to exercise discretion must be assessed in the context of the entire proceeding. People v.
Chapman, 194 Ill. 2d 186, 224 (2000). Further, the defendant must show that prejudice resulted
from the trial court’s failure to exercise discretion. People v. Jones, 2015 IL App (2d) 120717,
¶ 17.
¶ 33 During the second stage of proceedings, postconviction counsel filed a motion for the
appointment of a medical expert. Before the trial court heard this motion, postconviction counsel
filed the amended petition. At the hearing on the State’s amended motion to dismiss the amended
petition, the trial court addressed the motion for the appointment of a medical expert for the first
time. The trial court believed the defendant had filed some motions that were not appropriate for
second-stage proceedings. The State objected to the defendant’s motion for the appointment of a
medical expert and asserted that new evidence was not allowed at the second stage of proceedings.
The State contended that the motion was premature. The trial court asked postconviction counsel
whether he had anything to add. Postconviction counsel stated that he agreed with the State’s
13 assessment of the issue. The trial court subsequently heard arguments regarding the State’s
amended motion to dismiss the amended petition. Thus, the record shows that the trial court was
unaware that it had discretion to consider the defendant’s request to appoint an expert at the second
stage of proceedings. The trial court’s failure to recognize that it had discretion here resulted in an
abuse of discretion. See Queen, 56 Ill. 2d at 565.
¶ 34 We must now determine whether the defendant was prejudiced by the trial court’s failure
to exercise its discretion. “If defendant can demonstrate that the expert testimony is relevant and
material to the trial court’s consideration of his post-conviction petition and if the court believes
that the expert’s opinion would be of assistance in deciding the issues before the court, then the
trial court should appoint the expert.” Wilson, 191 Ill. 2d at 382.
¶ 35 Postconviction counsel filed the motion for appointment of a medical expert so that an
expert could review the discovery and “testify [at the defendant’s] Second and/or Third Stage Post-
Conviction Proceedings.” Before obtaining a ruling on this motion, postconviction counsel filed
the amended petition without a determination as to whether an expert should have been appointed.
At the hearing on the State’s motion to dismiss, the trial court offered postconviction counsel an
opportunity to discuss the motion for appointment of a medical expert. Rather than attempt to
explain to the trial court the legal basis for the motion and the reasons an expert was needed during
second-stage proceedings, postconviction counsel essentially abandoned the motion.
Consequently, the defendant was not afforded an opportunity to argue why the appointment of a
medical expert was needed in his case at the second stage of proceedings.
¶ 36 In the trial court’s order dismissing the defendant’s amended petition, the trial court noted
that the Dr. Teas letter contained “vague and incomplete findings” and that “there is no way for
this Court to know whether Dr. Teas’ testimony would have helped or hurt” the defendant’s case.
14 Had the trial court been properly presented with the motion, supported by caselaw or other
evidentiary sources, and heard arguments, it is possible, if not more likely, that the court would
have determined that appointing an expert would have been of assistance to the defendant in
showing that his defense counsel was ineffective for failing to obtain the opinion of a second
medical expert. Specifically, the trial court would have been advised whether the defendant made
a substantial showing of a constitutional violation that defense counsel was ineffective for failing
to obtain an opinion from a second pathologist as to Ashton’s cause of death. Accordingly, we find
that the defendant was prejudiced by postconviction counsel’s failure to properly present and argue
the motion for appointment of a medical expert and the trial court’s failure to exercise its discretion
to consider appointing an expert witness.
¶ 37 The defendant specifically asks this court to remand with directions to appoint an expert.
The appropriate remedy, however, is to remand this matter so that the trial court may exercise its
discretion as to the defendant’s motion. Doing so will give the defendant an opportunity to fully
argue the merits of his motion. This also gives the State an opportunity to respond to the
defendant’s motion. The court may then exercise its discretion as to whether a second medical
expert should be appointed and approve the necessary funds to retain any such expert.
¶ 38 The defendant next argues that postconviction counsel failed to comply with the mandates
of Rule 651(c). Under the Act, the right to counsel is statutory rather than constitutional, and the
level of assistance guaranteed by the Act is not the same level of assistance constitutionally
mandated at trial or on a direct appeal. Wallace, 2018 IL App (5th) 140385, ¶ 29. The level of
assistance guaranteed by the Act is reasonable assistance. Wallace, 2018 IL App (5th) 140385,
¶ 29. To that end, Rule 651(c) sets forth three duties counsel must perform. Counsel must consult
with the defendant to ascertain his or her contentions of deprivation of constitutional rights,
15 examine the record of proceedings at trial, and make any amendments to the pro se petition that
are necessary to adequately present the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1,
2017). The purpose of Rule 651(c) is to ensure that postconviction counsel shapes the defendant’s
claims into the proper legal form and presents them to the trial court. People v. Perkins, 229 Ill. 2d
34, 44 (2007). Substantial compliance with the rule is sufficient. People v. Profit, 2012 IL App
(1st) 101307, ¶ 18.
¶ 39 The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that
postconviction counsel provided reasonable assistance. Wallace, 2018 IL App (5th) 140385, ¶ 31.
This presumption may be rebutted by the record. People v. Russell, 2016 IL App (3d) 140386,
¶ 10. To overcome this presumption, the defendant must demonstrate counsel’s failure to
substantially comply with the duties required by Rule 651(c). Profit, 2012 IL App (1st) 101307,
¶ 19. Our review of whether postconviction counsel provided the required level of assistance is
de novo. Wallace, 2018 IL App (5th) 140385, ¶ 31.
¶ 40 Here, the record rebuts the presumption that postconviction counsel complied with the
mandates of Rule 651(c) because the record shows that counsel failed to amend the petition to
adequately present the defendant’s contentions. In amending the defendant’s pro se petition,
postconviction counsel reasserted the general claims set forth in the pro se petition and added
additional claims of ineffective assistance of counsel. Because postconviction counsel included
these claims in the amended petition, we presume counsel determined the allegations were not
frivolous. See People v. Dixon, 2018 IL App (3d) 150630, ¶ 22 (citing People v. Greer, 212 Ill. 2d
192, 205 (2004)). If postconviction counsel had determined that the defendant’s claims were
meritless, counsel could not, in good faith, file an amended petition on behalf of the defendant.
Greer, 212 Ill. 2d at 205.
16 ¶ 41 The new claims of ineffective assistance of counsel asserted in the amended petition
included, but were not limited to, defense counsel was ineffective for failing to object to certain
pretrial issues regarding Smith and her “applicable state of mind and prior mental health issues”;
defense counsel did not object to the State’s request to bar mention of Smith’s suicide attempt and
prior hospitalization for mental illness; and defense counsel was ineffective for requesting that the
jury be instructed on “other charges.”
¶ 42 The problem with these allegations is that they are conclusory in nature, not supported with
facts, and make no allegation that the defendant was prejudiced by defense counsel’s allegedly
deficient performance. Thus, these allegations were insufficient to state a viable claim of
ineffective assistance of counsel. See People v. Rissley, 206 Ill. 2d 403, 412 (2003) (all well-pled
facts in the postconviction petition and affidavits are to be taken as true, but nonfactual and
nonspecific assertions which merely amount to conclusions are insufficient to require a hearing
under the Act); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (to prevail on a claim
of ineffective assistance of counsel, a defendant must show both that his counsel was deficient and
that this deficiency prejudiced the defendant). The filing of the amended petition, without
sufficient detail to support the conclusory allegations, was not reasonable assistance of counsel.
¶ 43 Finally, postconviction counsel attempted to raise a new claim of ineffective assistance of
counsel during the hearing on the State’s motion to dismiss. Postconviction counsel claimed that
defense counsel may have been ineffective for failing to raise an objection regarding an
amendment to the indictment. Postconviction counsel claimed that he “just realized that yesterday”
as he was “going further through the file.” Postconviction counsel did not request leave to amend
the defendant’s postconviction petition to include this claim and provide support for the allegation.
Again, we presume postconviction counsel believed the claim was not frivolous because he sought
17 to assert it, although in an improper manner. Thus, postconviction counsel’s performance in this
regard was not reasonable. See People v. Kirk, 2012 IL App (1st) 101606, ¶¶ 31, 36.
¶ 44 We note that postconviction counsel filed certificates pursuant to Rules 604(d) and 651(c).
In doing so, postconviction counsel certified that he consulted with the defendant about his
contentions of error in entering a plea of guilty, reviewed the report of proceedings of the plea of
guilty, and made amendments necessary for the adequate presentation of any defects in plea
proceedings. But the defendant did not plead guilty, and it was impossible for counsel to do as he
certified. Postconviction counsel’s conduct here was more than a mere scrivener’s error. While
postconviction counsel’s carelessness in filing a proper certificate in this case does not alone prove
his unreasonableness, it does further undermine any contention that he provided reasonable
assistance.
¶ 45 Under the totality of the circumstances in this case, we are not confident in the assistance
which postconviction counsel provided and find that counsel’s performance fell below the level of
assistance required by Rule 651(c). When postconviction counsel fails to comply with the duties
of Rule 651(c), remand is required regardless of whether the defendant’s postconviction claims
have merit. Russell, 2016 IL App (3d) 140386, ¶ 12.
¶ 46 In sum, we vacate the judgment of the trial court dismissing the defendant’s amended
petition and remand for new second-stage proceedings with new counsel. On remand, the trial
court shall allow the defendant to replead his motion for the appointment of a medical expert and
hold a hearing on the motion, provided the defendant pursues such a motion. Regardless of the
trial court’s ruling on any motion for the appointment of a medical expert, the trial court shall also
allow the defendant to replead his postconviction petition with the assistance of new counsel. We
18 take no position on the merits of the defendant’s postconviction claims, but remand is necessary
here to ensure compliance with Rule 651(c).
¶ 47 Reversed and remanded with directions.