People v. Perkins

2026 IL App (5th) 250033-U

• Court: Appellate Court of Illinois
• Decided: March 9, 2026
• Docket: 5-25-0033
• Status: Unpublished

Opinion

NOTICE 2026 IL App (5th) 250033-U NOTICE Decision filed 03/09/26. The This order was filed under text of this decision may be NO. 5-25-0033 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). 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. 18-CF-3607 ) ANTONIO PERKINS, ) Honorable ) Kyle A. Napp, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE HACKETT delivered the judgment of the court. Justices Vaughan and Bollinger concurred in the judgment.

ORDER

¶1 Held: Postconviction counsel provided unreasonable assistance by failing to amend the defendant’s postconviction petition to avoid procedural default.

¶2 The defendant, Antonio Perkins, appeals from the dismissal of his postconviction petition

filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). The

defendant argues that the dismissal was error because he made a substantial showing of a

constitutional violation that his conviction for unlawful possession of a weapon by a felon (UPWF)

violated the one-act, one-crime rule. The defendant also argues, in the alternative, that

postconviction counsel provided unreasonable assistance for failing to amend the postconviction

petition to avoid procedural default. The State agrees with the defendant but asks that, in the

1 interest of judicial economy, we vacate the conviction. For the reasons that follow, we reverse and

remand for second-stage postconviction proceedings.

¶3 I. BACKGROUND

¶4 In July 2019, the defendant, proceeding pro se, entered into a fully negotiated guilty plea

to UPWF (720 ILCS 5/24-1.1(a) (West 2018)) and armed habitual criminal (id. § 24-1.7(a)). As

part of the plea agreement, the State dismissed the charge of aggravated battery with a firearm (id.

§ 12-3.05(e)(1)). Also, the defendant was sentenced to consecutive terms of 10 years in prison for

UPWF (to be served at 50%) and 6 years in prison for armed habitual criminal (to be served at

85%). The defendant’s convictions were based on the same physical act—possession of a single

handgun during a November 29, 2018, altercation. See People v. Perkins, 2023 IL App (5th)

220423-U, ¶ 19. However, the defendant, who was acting pro se, was not admonished by the trial

court that his plea negotiations with the State had resulted in a negotiated plea that violated, on its

face, the one-act, one-crime rule and thus resulted in an impermissible sentence. See People v.

Morgan, 385 Ill. App. 3d 771, 774-75 (2008); see also People v. West, 2017 IL App (1st) 143632,

¶¶ 24-25.

¶5 Thereafter, in August 2019, the defendant filed a pro se petition for relief from judgment

and a pro se motion to reduce his sentence. Thereafter, the trial court characterized the petition for

relief from judgment as a motion to withdraw guilty plea and denied both of the defendant’s pro se

motions. The defendant then appealed, arguing that the trial court erred in denying the motions

without appointing counsel or holding a hearing, as required by Illinois Supreme Court Rule 604(d)

(eff. July 1, 2017). This court agreed with the defendant, vacated the trial court’s judgment, and

remanded the case for strict compliance with Rule 604(d). People v. Perkins, No. 5-19-0443 (2021)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

2 ¶6 Following the first direct appeal, the defendant filed, in May 2021, a pro se “affidavit for

petition for relief from judgment,” in which he argued, in pertinent part, that his sentence violated

the double jeopardy clauses of the state and federal constitutions because the convictions for

UPWF and armed habitual criminal were based on the same conduct. Thereafter, the defendant

was appointed counsel for the proceedings on remand, and on March 8, 2022, the defendant’s

counsel filed an amended motion to withdraw the guilty plea. This motion did not mention the

defendant’s argument that his sentence violated double jeopardy. Also, in a May 2022, pro se letter

filed with the trial court, the defendant indicated his UPWF conviction should be vacated because

it was based on the same physical act as his armed habitual criminal conviction in violation of the

one-act, one-crime rule. In June 2022, the trial court denied the defendant’s motion to withdraw

his guilty plea. Thereafter, the defendant appealed.

¶7 The defendant’s sole argument on appeal was that his UPWF conviction must be vacated

under the one-act, one-crime rule because it was based on the same physical act as his conviction

for armed habitual criminal. Perkins, 2023 IL App (5th) 220423-U, ¶ 2. Despite the State’s

agreement that the UPWF conviction should be vacated, this court affirmed, finding that contract

law principles applicable to negotiated pleas precluded the defendant’s requested relief of vacating

his UPWF conviction. Id. ¶¶ 30-32. This court found that the only remedy available to the

defendant was withdrawal of his guilty plea on the basis of the one-act, one-crime doctrine, but

the defendant failed to request that relief in his motion to withdraw guilty plea and in his appeal.

Id.

¶8 On June 14, 2022, while the appeal was pending, the defendant filed a pro se petition for

postconviction relief. On July 29, 2022, due to the defendant putting the wrong case number on

the first petition, the defendant filed a motion for leave to file a successive postconviction petition

3 and an amended postconviction petition. In the motion, the defendant asserted that his convictions

and sentences violated the one-act, one-crime doctrine. On August 8, 2022, the trial court entered

an order, finding that the defendant’s pro se petition was not frivolous or patently without merit,

advancing the petition to the second stage of the postconviction proceedings, and appointing

counsel for the defendant.

¶9 On March 27, 2023, while the appeal was still pending, the defendant’s appointed counsel

filed an amended petition for postconviction relief, reiterating the defendant’s claim that the

UPWF conviction and the armed habitual criminal conviction were based on the same act and thus

violated the one-act, one-crime doctrine. In addition, the defendant asserted that his postplea

counsel was ineffective for failing to raise this argument in the defendant’s motion to withdraw

guilty plea, even though the defendant had previously filed his May 2022 letter bringing this issue

to the trial court’s attention. Attached to the petition was the defendant’s affidavit, in which he

stated that at the time that he entered into his guilty plea, he did not know about the one-act, one-

crime principles and thus could not have made a knowing and voluntary waiver of his rights under

that doctrine.

¶ 10 On May 26, 2023, the State filed an answer to the defendant’s amended postconviction

petition, noting that in the simultaneous appeal, the State’s appellate counsel conceded that the

defendant’s less serious conviction (the UPWF conviction) must be vacated based on the one-act,

one-crime rule. Thus, in the postconviction proceedings in the trial court, the State also conceded

that “the less-serious [UPWF] conviction with a sentence of 10 year[s] [should] be vacated.”

¶ 11 After this court issued its decision affirming the defendant’s convictions in the direct

appeal, in January 2024, the defendant filed a second amended postconviction petition. The

petition again argued that at the time that the defendant entered into the guilty plea, he was acting

4 pro se, and he did not knowingly and voluntarily enter into the guilty plea because he was unaware

of the one-act, one-crime rule. The petition also argued that postplea counsel was ineffective for

failing to raise, on remand, this issue in the motion to withdraw guilty plea. Thus, the petition

requested that the trial court vacate the defendant’s UPWF conviction, or alternatively, allow him

to withdraw his guilty plea. Also, the State filed a motion to dismiss the defendant’s postconviction

petition based on this court’s decision in People v. Perkins, 2023 IL App (5th) 220423-U.

Specifically, the State contended that because the defendant had alleged the identical violation of

the one-act, one-crime doctrine in his amended postconviction petition as he did in his appeal, his

amended postconviction petition “must be dismissed pursuant to contract principles as instructed

by the Fifth District Appellate Court.”

¶ 12 On December 20, 2024, the trial court granted the State’s motion to dismiss the defendant’s

postconviction petition. In making this decision, the trial court concluded that the one-act, one-

crime argument was barred by the doctrine of res judicata because this issue had been raised and

addressed in the direct appeal. The trial court also found that the defendant’s ineffective assistance

of postplea counsel claim was not raised in the direct appeal, although the trial court noted that it

could have been and arguably the doctrine of waiver applied. The trial court further concluded that

after considering the arguments of counsel, the applicable law and statutes, and the transcripts of

the proceedings, the defendant failed to make a substantial showing that his constitutional rights

had been violated. The defendant filed a timely notice of appeal.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the defendant contends that the trial court erred in granting the State’s motion

to dismiss where he had made a substantial showing that postplea counsel was ineffective for

failing to withdraw his guilty plea on the basis that he unknowingly and involuntarily pled guilty

5 to convictions that violated the one-act, one-crime doctrine. Alternatively, the defendant argues

that he was denied reasonable assistance of postconviction counsel where counsel failed to comply

with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The State agrees that the defendant’s

convictions violated the one-act, one-crime doctrine and asks that we reconsider our previous

decision and vacate the defendant’s UPWF conviction. In the defendant’s reply brief, he notes that

he is scheduled to be released on October 19, 2026, but he has already completed his sentence on

the armed habitual criminal conviction. 1

¶ 15 As we are bound by this court’s previous decision under the law of the case doctrine, and

the case before us stems from a collateral attack on the defendant’s convictions, rather than a

continuation of the original case, we find that we do not have the authority to now simply vacate

the defendant’s UPWF conviction. See People v. Peterson, 2017 IL 120331, ¶ 25 (the law of the

case doctrine bars relitigation of an issue previously decided in the same case). We do find,

however, that the defendant’s postconviction counsel provided unreasonable assistance by failing

to comply with Rule 651(c). Because we find the defendant’s alternative argument to be

dispositive, we need not address whether the trial court erred in granting the State’s motion to

dismiss.

¶ 16 The Act allows a criminal defendant to challenge his conviction for substantial violations

of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2020). The Act establishes a three-stage

process for the adjudication of postconviction petitions. People v. Domagala, 2013 IL 113688,

¶ 32. If a petition is not summarily dismissed at the first stage, it advances to the second stage,

1 See https://idoc.illinois.gov/offender/inmatesearch.html (last visited Mar. 4, 2026); People v. Gipson, 2015 IL App (1st) 122451, ¶ 66 (this court can take judicial notice of the Illinois Department of Corrections’ website). 6 where an indigent defendant can obtain appointed counsel, and the State can move to dismiss the

petition or answer. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2020).

¶ 17 As the right to postconviction counsel is wholly statutory, a postconviction defendant is

only entitled to the level of assistance provided by the Act. People v. Turner, 187 Ill. 2d 406, 410

(1999). The Act requires postconviction counsel to provide a reasonable level of assistance to

defendant. Id. Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) imposes certain duties on

postconviction counsel to ensure reasonable assistance. Turner, 187 Ill. 2d at 410. Specifically,

Rule 651(c) requires postconviction counsel to (1) consult with the defendant to ascertain his

contentions of deprivation of constitutional rights, (2) examine the record of trial proceedings, and

(3) amend the petition as necessary for an adequate presentation of the defendant’s claims. Ill. S.

Ct. R. 651(c) (eff. July 1, 2017). “The purpose of the rule is to ensure that postconviction counsel

shapes the defendant’s claims into a proper legal form and presents them to the court.” People v.

Profit, 2012 IL App (1st) 101307, ¶ 18.

¶ 18 Where postconviction counsel files a certificate pursuant to Rule 651(c), as in this case,

there is a rebuttable presumption that counsel provided reasonable assistance. Id. ¶ 19. However,

“[c]ounsel cannot fulfill his Rule 651(c) duties simply by filing a certificate if he has not provided

adequate assistance.” People v. Schlosser, 2012 IL App (1st) 092523, ¶ 33. If the record shows

counsel failed to meet one of Rule 651(c)’s requirements, the presumption is rebutted, and there is

no compliance with Rule 651(c). See People v. Johnson, 154 Ill. 2d 227, 248-49 (1993). The

defendant has the burden of overcoming the presumption by demonstrating postconviction counsel

failed to substantially comply with the duties mandated by Rule 651(c). Profit, 2012 IL App (1st)

101307, ¶ 19. Failure to comply with Rule 651(c) requires reversal regardless of whether the

petition’s claims have merit. People v. Addison, 2023 IL 127119, ¶ 33. We review de novo the

7 question of whether postconviction counsel substantially complied with Rule 651(c). People v.

Mason, 2016 IL App (4th) 140517, ¶ 19.

¶ 19 As previously stated, under Rule 651(c), postconviction counsel has a duty to make

necessary amendments to adequately present the defendant’s contentions. Johnson, 154 Ill. 2d at

243. An adequate presentation of a defendant’s substantive claims necessarily includes attempting

to overcome procedural bars that will result in dismissal of the petition if not rebutted. People v.

Perkins, 229 Ill. 2d 34, 44 (2007). Thus, postconviction counsel’s failure to amend a

postconviction petition to avoid forfeiture renders counsel’s assistance unreasonable. Schlosser,

2012 IL App (1st) 092523, ¶¶ 25-26.

¶ 20 Here, the defendant’s postconviction counsel alleged that postplea counsel was ineffective

for failing to raise the one-act, one-crime issue in the defendant’s motion to withdraw guilty plea.

Although this issue could have been raised on direct appeal, it was not. As such, the defendant is

procedurally barred from asserting this issue in the postconviction proceedings. People v.

Erickson, 161 Ill. 2d 82, 89 (1994). However, a claim that appellate counsel was ineffective for

failing to raise the claim on direct appeal would have avoided the procedural default. Turner, 187

Ill. 2d at 413. Thus, in this case, postconviction counsel was required to allege appellate counsel’s

ineffectiveness in failing to raise the claim on direct appeal. Since postconviction counsel failed to

argue appellate counsel’s ineffectiveness in the amended postconviction petition, counsel failed to

make all necessary amendments to adequately present the defendant’s claims. Accordingly,

counsel failed to comply with Rule 651(c), which requires reversal regardless of whether the

defendant’s claims have merit. Addison, 2023 IL 127119, ¶ 33. Because we resolve this appeal

based on noncompliance with Rule 651(c), we need not address the propriety of the trial court’s

order granting the State’s motion to dismiss. See Mason, 2016 IL App (4th) 140517, ¶ 26; Addison,

8 2023 IL 127119, ¶ 37 (“all postconviction petitioners are entitled to have counsel comply with the

limited duties of Rule 651(c) before the merits of their petitions are determined” (emphasis in

original)).

¶ 21 It is the State’s duty to see that justice is done for the public, as well as for the defendant.

In re Derrico G., 2014 IL 114463, ¶ 107. Even though the defendant’s requested relief is

precluded, the State may, on remand, review the UPWF conviction and determine if any other

correctives are available and should be pursued. See People v. Buffkin, 2016 IL App (2d) 140792,

¶ 14.

¶ 22 III. CONCLUSION

¶ 23 For the above reasons, we reverse the judgment of the trial court of Madison County

dismissing the defendant’s amended postconviction petition at the second stage and remand for

new second-stage proceedings, after the appointment of new postconviction counsel with leave to

amend the defendant’s petition. We also direct the clerk to issue the mandate immediately.

¶ 24 Reversed and remanded.