2022 IL App (1st) 201206-U
FIFTH DIVISION December 23, 2022
No. 1-20-1206
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of Cook County. ) v. ) 07 CR 1022 ) ANDRE PATTERSON, ) Honorable Thaddeus L. Wilson, ) Judge Presiding. Petitioner-Appellant. )
PRESIDING JUSTICE CONNORS delivered the judgment of the court. Justices Mitchell and Lyle concurred in the judgment.
ORDER
Held: Petitioner did not receive unreasonable assistance of postconviction counsel where counsel did not amend the pro se postconviction petition and did not withdraw as counsel.
¶1 Petitioner, Andre Patterson, appeals from the trial court’s dismissal of his second-stage
postconviction petition. Patterson contends that he was denied reasonable assistance of counsel
during his second-stage postconviction proceedings where counsel: (1) failed to amend his pro se
postconviction petition and adequately respond to the State’s motion to dismiss, and (2) did not
move to withdraw. For the following reasons, we affirm. No. 1-20-1206
¶2 I. BACKGROUND
¶3 On November 9, 2010, Patterson pled guilty to one count of second-degree murder for
killing her cellmate in exchange for a 20-year sentence. 1 The incident occurred on December 5,
2006, when Patterson was 17 years old. Prior to accepting her guilty plea, the trial court
reviewed with Patterson that: (1) the sentencing range for second-degree murder was 4 to 20
years and that she would receive the sentence of 20 years plus a 3-year term of Mandatory
Supervised Release; (2) her sentence would run consecutive to the sentence to be imposed on
Patterson’s other pending case; and (3) if Patterson chose to plead guilty, she would be waiving
her rights to: a trial by jury, trial by judge, have her lawyer confront and examine the State’s
witnesses, and have the State prove Patterson guilty beyond a reasonable doubt. Patterson
acknowledged that she understood those statements. The trial court then confirmed, prior to
accepting Patterson’s signed jury waiver, that it had her signature on it and that it was made
freely and voluntarily. Patterson stated that it was.
¶4 The State then read into the record the following factual basis for the plea:
“The evidence would show that on December 5, 2006, [Patterson], as well
as the victim in this case, were being housed together in cell 1261 on the wing of
the Cook County Jail. Both of them were prisoners within the Cook County Jail at
that time.
They were in the cell alone together. There is a solid door on the cell, and
during the evening hours on that date, [Patterson] then put [her] hands around the
victim’s neck and strangled him.
1 Patterson identifies as female and will be referred to accordingly in this brief. While her name is now Janiah Monroe, we will refer to her as “Andre Patterson” for the sake of consistency with the record and past orders.
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The victim suffered the following injuries as a result of [Patterson’s]
strangling him. The victim had an abrasion on his right eye, his left cheek, his
lips. His neck had numerous abrasions and bruises. He had bite marks on his back
and shoulders and abrasions on his wrists and hands. He fractured – had a fracture
to his hyoid bone, fracture to his thyroid tissue. He had petechial hemorrhages
within the muscle of his throat and hemorrhage of his tongue.
The DNA – there was a positive DNA match to [Patterson] from the bite –
one of the bite marks as well as fingernail clippings of the victim. The victim died
as a result of those injuries he suffered at the hands of [Patterson].”
¶5 Patterson’s counsel stipulated that this would be the trial testimony.
¶6 The trial court found that Patterson understood the nature of the charge against her, that
her plea was freely and voluntarily given, and that there was a sufficient factual basis. The court
found her guilty of one count of second-degree murder. Before sentencing Patterson, the court
confirmed that she was waiving her right to a presentence investigation and written report.
Patterson was then sentenced to 20 years in prison with three years of Mandatory Supervised
Release. She did not file a motion to withdraw her guilty plea, or a direct appeal.
¶7 On March 24, 2016, Patterson filed a pro se postconviction petition arguing a claim of
actual innocence based on self-defense and her mental instability. She also argued that her guilty
plea was involuntary due to her mental instability and inability to consult with counsel. She
claimed that she received incompetent advice of plea counsel and that her plea counsel was
ineffective for several reasons, including failing to order a second fitness evaluation and failing
to investigate a rape kit that was allegedly performed on Patterson.
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¶8 On March 24, 2017, the petition was docketed for second-stage proceedings because the
court had inadvertently allowed the initial 90-day limit for first-stage dismissal to lapse. A public
defender was appointed to represent Patterson.
¶9 On April 18, 2017, Assistant Public Defender, Barbara McClure, appeared on behalf of
Patterson and indicated to the court that she needed time to order and review the transcripts of
the case. On July 18, 2017, McClure told the court that she had received and reviewed the
transcripts, and had reviewed Patterson’s pro se petition, a section 2-1401 petition in the case,
and a “closed file” that contained mental health records from the Illinois Department of
Corrections. She still needed certain medical records.
¶ 10 On October 24, 2017, McClure informed the court that she had reviewed Patterson’s
Behavioral Clinical Exams (BCX) and Cook County Jail records but that she was still awaiting
notes and records from Cermak. On December 13, 2017, McClure obtained a court order for
Patterson’s records from River’s Edge and Hartgrove psychiatric facilities. On February 21,
2018, McClure informed the court that she would need an expert to review all the medical
records since Patterson challenged her fitness and sanity at the time of her plea.
¶ 11 On May 30, 2018, McClure informed the court that Assistant Public Defender, Abby
Clough, would be taking over the case. McClure told the court that she had a long conversation
with Patterson during which she “advised [her] again of the risks involved in pursuing this
petition, and [she] still wishes to proceed, so we are continuing to work and investigate the
merits of [her] claims.”
¶ 12 On July 11, 2018, Clough told the court that she had gone through hundreds of pages of
Patterson’s medical records and criminal history at the jail and that she would be reviewing the
case with her supervisor about whether she needed to obtain an expert.
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¶ 13 On August 15, 2018, Clough reported that she had spoken with an expert who requested
two more items before the expert could decide whether to take on the case, which included
IDOC records and a conversation with Patterson. Clough said she hoped to arrange the meeting
between the expert and Patterson in the next month. Clough stated that petitioner had been given
a BCX three times during the pendency of her incarceration, but there was no forensic exam
within a year of the plea due to Patterson’s history of mental illness, her suicide attempts, and her
identifying as transgender.
¶ 14 On January 15, 2019, Clough stated that she received the BCX evaluation from a private
attorney in Livingston County, as well as a packet of medical records, and that she needed to find
a new expert.
¶ 15 On May 10, 2019, Clough informed the court that her office had approved hiring an
expert and that the expert needed about six weeks to review all of the records and meet with
Patterson. On July 23, 2019, Clough stated that the expert had finished her evaluation and was
able to interview Patterson.
¶ 16 On August 20, 2019, Clough told the court that she had spoken with Patterson, who
wanted to raise an additional issue regarding her mittimus and the credit she received.
¶ 17 On October 15, 2019, Clough filed her Illinois Supreme Court Rule 651(c) compliance
certificate, stating that: she had consulted with Patterson to ascertain her contentions of
deprivations of constitutional rights; she obtained and examined the transcript of her plea and
sentencing, transcripts, and medical records; she had read and researched the issues presented in
the petition; and she had not prepared a supplemental petition for postconviction relief as the
previously-filed petition adequately set forth Patterson’s claims.
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¶ 18 On January 16, 2020, the State filed a motion to dismiss. In its motion, the State argued
that: Patterson’s petition was untimely; her allegations of trial court error and due process
violations were meritless; the allegations of ineffective assistance of trial counsel did not meet
the Strickland standards; her claim of actual innocence was baseless; and her allegations should
be dismissed because she voluntarily pled guilty.
¶ 19 On March 12, 2020, the court heard arguments on the State’s motion to dismiss. The
State noted that all of Patterson’s BCX reports found her fit, and that Patterson had not presented
anything to establish that she was unfit at the time of the plea. Clough acknowledged that she had
not amended Patterson’s pro se petition. She noted that Patterson was a juvenile when she was
brought over, and put in an adult prison. She also highlighted Patterson’s claim of being attacked
“by an adult male who [she] ultimately killed and argues in self-defense.” Clough stated that
after Patterson pled guilty to second-degree murder, her life “sort of spiraled out of control
towards a life in IDOC custody.”
¶ 20 On October 26, 2020, the trial court granted the State’s motion to dismiss. The court
found that Patterson had failed to make a substantial showing of actual innocence where even
though she claimed that the victim had attacked her, Patterson’s account of what happened “does
not address every element of self-defense, especially that Patterson’s use of a deadly force was
reasonably necessary. Thus, the evidence is far from conclusive in character.” The court also
noted that Patterson failed to make a substantial showing that she was unfit at the time of her
plea since mental illness alone does not equate with unfitness, and where Patterson was found fit
for trial in two evaluations conducted in October 2006 and September 2008. Accordingly, the
court found that Patterson’s “unspecific and unsupported allegations” were insufficient to show
that she was unfit at the time of the guilty plea and to overcome the record’s showing of fitness.
6 No. 1-20-1206
¶ 21 The court also found that Patterson failed to make a substantial showing of ineffective
assistance of trial counsel for failing to request another fitness evaluation since petitioner’s
allegations did not specify that anything occurred after the 2008 fitness evaluation but before the
guilty plea that would have apprised trial counsel to believe that the court had a bona fide doubt
of Patterson’s fitness. The court further noted that other than making a conclusory claim that the
expert witness was inadequate, Patterson failed to provide any other explanation or supporting
documents. The court found that Patterson failed to make a substantial showing of insanity
because her “sole allegation that she had a history of mental illness is insufficient to make a
showing of insanity as a matter of law.”
¶ 22 Patterson now timely appeals.
¶ 23 II. ANALYSIS
¶ 24 On appeal, Patterson contends that she was denied reasonable assistance of counsel
during his second-stage postconviction proceedings where counsel: (1) failed to amend
Patterson’s pro se postconviction petition and adequately respond to the State’s motion to
dismiss, and (2) did not move to withdraw. The State maintains that Patterson cannot rebut the
presumption that counsel fulfilled her duties under Rule 651(c).
¶ 25 The Post-Conviction Hearing Act (Act) provides a mechanism for convicted defendants
to assert that their convictions resulted from a substantial denial of their constitutional rights. 725
ILCS 5/122-1 (West 2022). A postconviction proceeding is a collateral attack on a conviction,
not an appeal of the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). The
purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction
or sentence that were not, and could not have been, determined on direct appeal. People v.
Griffin, 178 Ill. 2d 64, 72-3 (1997). Res judicata bars claims that were raised and decide on
7 No. 1-20-1206
direct appeal, and principals of waiver and forfeiture preclude claims that could have been raised
on direct appeal but were not. People v. Blair, 215 Ill. 2d 427, 443-47 (2005).
¶ 26 At the second stage, counsel may be appointed to an indigent defendant and the State
may file a motion to dismiss or an answer to the petition. 725 ILCS 5/122-4, 5 (West 2022). If
the court appoints counsel at the second stage, appointed counsel is required to file a certificate
showing compliance with Illinois Supreme Court Rule 651(c) (eff. Jul. 1, 2017), namely, stating
that appointed counsel has consulted with the defendant, examined the record of trial
proceedings, and made any necessary amendments. At this stage, the circuit court must
determine whether the petition and any accompanying documentation make a “substantial
showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001). During
the second stage, the petitioner bears the burden of making a substantial showing of a
constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
¶ 27 Relevant to the controversy in this case, it is settled that there is no constitutional right to
assistance of counsel during postconviction proceedings. People v. Cotto, 2016 IL 119006, ¶ 29.
Accordingly, our supreme court has explained, “[t]he right to assistance of counsel in
postconviction proceedings is a matter of legislative grace, and a defendant is guaranteed only
the level of assistance provided by the [Act].” People v. Hardin, 217 Ill. 2d 289, 299 (2005). Our
supreme court has concluded that the Act provides a postconviction petition with “reasonable”
assistance. Id. The reasonable level of assistance provided for by the Act is “less than that
afforded by the federal or state constitutions.” Pendleton, 223 Ill. 2d at 472. The parameters of
the reasonable assistance postconviction petitioners are provided under the Act are codified in
Illinois Supreme Court Rule 651(c), which states in pertinent part:
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“The record filed in court shall contain a showing, which may be made by the
certificate of petitioner’s attorney, that the attorney has consulted with petitioner,
either by mail or in person to ascertain his contentions of deprivation of
constitutional right, has examined the record of proceedings at the trial, and has
made any amendments to the petition filed pro se that are necessary for an
adequate presentation of petitioner’s contentions.”
¶ 28 Fulfillment of the third obligation under Rule 651(c) does not require postconviction
counsel to advance frivolous or spurious claims. People v. Greer, 212 Ill. 2d 192, 205 (2004). At
this juncture, a petitioner is not entitled to “advocacy of counsel for purposes of exploration,
investigation and formulation of potential claims.” People v. Davis, 156 Ill. 2d 149, 163 (1993).
Postconviction counsel is only required to investigate and properly present the petitioner’s claims
– had the legislature intended otherwise, it would have provided for appointment of counsel prior
to the filing of the original petition. Id. at 164. Counsel’s responsibility is to adequately present
those claims which the petitioner raises. Id. We review de novo both the trial court’s dismissal of
Patterson’s postconviction petition without an evidentiary hearing (Pendleton, 223 Ill. 2d at 473)
and the interpretation of a supreme court rule, including whether counsel fulfilled her duties
under Rule 651(c) (People v. Suarez, 224 Ill. 2d 37, 41-42 (2007)).
¶ 29 Here, Patterson’s counsel filed a certificate pursuant to Rule 651(c), asserting that she:
consulted with Patterson; examined the record of trial/plea proceedings including the common
law record, forensic clinical evaluations, and the medical records; researched Patterson’s claims;
and had not filed a supplemental petition because the initial petition provided an adequate
presentation of Patterson’s contentions.
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¶ 30 The filing of a Rule 651(c) certificate gives rise to the presumption that postconviction
counsel provided reasonable assistance during second-stage proceedings under the Act. See
People v. Rossi, 387 Ill. App. 3d 1054, 1060 (2009) (upon the filing of a certificate in accordance
with Rule 651(c), the presumption exists that postconviction counsel “adequately investigated,
amended and properly presented those claims contained within petitioner’s successive
postconviction petition”). Accordingly, it falls on the petitioner to overcome that presumption by
demonstrating counsel’s failure to substantially comply with the duties mandated by Rule 651(c).
See People v. Richardson, 382 Ill. App. 3d 248, 257 (2008).
¶ 31 Patterson alleges that counsel should have amended the petition “with necessary support
for Patterson’s pro se claim that her plea counsel was ineffective for failing to investigate and
present evidence concerning” a rape kit. However, “[a] mere failure to amend the pro se petition
is not enough to establish inadequacy of representation in the absence of a showing that the
petition could have been successfully amended.” People v. Johnson, 232 Ill. App. 3d 674, 678
(1992). Patterson has pointed to nothing in the record showing that a rape kit exists. Accordingly,
we cannot presume the existence of an error which is not affirmatively shown in the record. See
People v. Boshears, 228 Ill. App. 3d 677, 681 (1992); see also People v. Johnson, 154 Ill. 2d
227, 241 (1993) (“In the ordinary case, a trial court ruling upon a motion to dismiss a
postconviction petition which is not supported by affidavits or other documents may reasonably
presume that postconviction counsel made a concerted effort to obtain affidavits in support of the
postconviction claims but was unable to do so.”).
¶ 32 The record reveals that counsel informed the court on multiple occasions that she
collected and reviewed Patterson’s medical records and hired an expert to review the medical
records. When the first expert was unable to take the case, counsel hired another expert to review
10 No. 1-20-1206
the medical records. If a rape kit had been performed, it presumably would have been in the
medical records. Patterson does not indicate when the rape kit was performed or who performed
it on her. Furthermore, the expert met with Patterson, after which counsel indicated that she was
going to meet with Patterson again before filing her 651(c) certificate. The record demonstrates
that counsel fulfilled all the obligations Rule 651(c) imposes on postconviction counsel. Just
because a rape kit was not found by counsel, does not mean that Patterson’s claim was frivolous
or patently without merit such that counsel should have withdrawn. It merely means that counsel
found no further evidence to support Patterson’s claim of self-defense.
¶ 33 To the extent that Patterson claims that counsel should have amended the petition, we
find the case of People v. Bass, 2018 IL App (1st) 152650, to be instructive. In Bass,
postconviction counsel filed a Rule 651(c) certificate indicating that the petitioner’s pro se
postconviction petition adequately stated his contentions and declined to amend the petition. Id.
¶ 7. The State moved to dismiss, and counsel did not file a written response. Rather, counsel
stood on the petition but informed the court that he had attempted to obtain witness affidavits and
was unsuccessful. Id. ¶ 8. The circuit court dismissed the petition. Id. ¶ 9. On appeal, the
petitioner argued that his postconviction counsel rendered unreasonable assistance by failing to
amend his petition to include witness affidavits, to explain the absence of those affidavits, or
move to withdraw. Id.
¶ 34 In rejecting the petitioner’s claims, this court stated that petitioner’s argument “begs the
question since he presumes (without any support in the record) that counsel’s failure to amend
his petition was the result of some deficiency in his lawyer’s performance rather than the
inability to substantiate [his] claims.” Id. ¶ 14. The court noted that when, after conducting his
investigation, the petitioner’s lawyer determined that he could not obtain evidence to support it,
11 No. 1-20-1206
the petition did not ipso facto become frivolous or patently without merit, but nevertheless
remained defective, and counsel determined he was unable to cure that defect. Id. ¶ 19. The court
found that the petitioner “offers nothing to suggest that his lawyer’s conclusion was wrong or
that he acted unreasonably in declining to amend.” Id. The court found that the petitioner could
not overcome the presumption that attaches to counsel’s Rule 651(c) affidavit. Id.
¶ 35 Similarly here, we find that counsel’s failure to amend was not the result of some
deficiency on her performance but rather her inability to substantiate Patterson’s claims. Counsel
investigated the claims, met with Patterson, hired two separate experts, and was simply unable to
find the evidence that Patterson argues would have lent further support to her claims.
¶ 36 We find Patterson’s reliance on People v. Greer, 212 Ill. 2d 192 (2004), to be
unpersuasive. In Greer, the appointed attorney found the petitioner’s petition to be meritless and
asked for leave to withdraw. Id. at 194-95. The trial court granted the request. Id. The court then
dismissed the petitioner’s petition sua sponte. Id. The appellate court then affirmed the trial
court’s grant of the attorney’s leave to withdraw but reversed the court’s decision to dismiss the
petition sua sponte. Id. The only issue before the Illinois Supreme Court was whether the trial
court erred when it granted the attorney’s request for leave to withdraw. Id. at 195-96. The
Supreme Court found that the trial court properly granted the attorney’s request for leave to
withdraw, and that “the Act presents no impediment to withdrawal of counsel.” Id.
¶ 37 While the holding in Greer certainly permits an attorney to withdrawal if the record
affirmatively rebuts the claims in the postconviction petition, it does not require an attorney to
withdraw if that attorney simply cannot find additional evidence to supplement the petition.
Here, counsel investigated the claims, hired an expert, spoke to Patterson, and ultimately was
unable to supplement the petition with additional evidence. The petition did not ipso facto
12 No. 1-20-1206
become frivolous or patently without merit. See Bass, 2018 IL App (1st) 152650, ¶ 19. To the
extent it remained defective for failing to have the proper evidence attached, counsel determined
she was unable to cure that defect. Id. Patterson offers nothing to suggest that counsel was wrong
or that she acted unreasonably in declining to amend. Id. Accordingly, Patterson has not
sustained her burden to overcome the presumption that attaches to counsel’s Rule 651(c)
affidavit.
¶ 38 Patterson nevertheless maintains that if counsel “discovered evidence that rebutted the
claim” she had “a duty not to submit the claim to the court and, if none of the other claims in the
petition could be shaped into proper legal claims, a duty to move to withdraw.” However, we
reiterate that because counsel in this case did not find that Patterson’s claims in her pro se
petition were affirmatively rebutted by the record, and therefore frivolous or patently without
merit, she was under no obligation to request to withdraw from the case. Accordingly,
Patterson’s argument that Bass was wrongly decided because it rejected the defendant’s
argument that his counsel’s failure to withdraw after discovering his claims were frivolous
deprived him of the ability to defend his postconviction petition pro se, has no bearing on this
case. Counsel in this case did not find the petition to be frivolous, and therefore had no reason to
withdraw.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 41 Affirmed.