People v. Peterson

2024 IL App (5th) 220530-U

Opinion

NOTICE 2024 IL App (5th) 220530-U NOTICE Decision filed 12/18/24. The This order was filed under text of this decision may be NO. 5-22-0530 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, ) Randolph County. ) v. ) No. 15-CF-26 ) DREW PETERSON, ) Honorable ) Richard A. Brown, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE McHANEY delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion in striking an unnotarized declaration attached to defendant’s postconviction petition and dismissing his claim of actual innocence based on said declaration at the second stage of the proceedings. Postconviction counsel’s failure to correct a procedural defect resulting in the dismissal of defendant’s claim of actual innocence rebuts the presumption of reasonable assistance that counsel complied with the duties prescribed by Rule 651(c).

¶2 Following a jury trial, the defendant, Drew Peterson, was sentenced to 40 years’

imprisonment for solicitation of murder for hire. He appeals from the partial second-stage

dismissal and partial third-stage denial of his petition filed pursuant to the Post-Conviction Hearing

Act (725 ILCS 5/122-1 et seq. (West 2020)). The defendant contends that postconviction counsel

did not provide reasonable assistance where counsel failed to correct an unverified declaration

from an alleged witness which served as the basis for the circuit court’s dismissal of his claim of

1 actual innocence. Alternatively, the defendant contends postconviction counsel’s assistance was

unreasonable because counsel did not amend his pro se petition to include an allegation explaining

why he could not obtain a notarized affidavit from the alleged witness. For the following reasons,

we reverse and remand.

¶3 I. Background

¶4 The defendant was charged with solicitation of murder (720 ILCS 5/8-1(b) (West 2016))

and solicitation of murder for hire (id. § 8-1.2(a)). The jury found the defendant guilty of both

counts, and, after merging the two counts, the trial court sentenced him to 40 years’ imprisonment

for solicitation of murder for hire. This court affirmed the defendant’s conviction on direct appeal.

People v. Peterson, 2020 IL App (5th) 160541-U.

¶5 The defendant filed a pro se petition for postconviction relief which was advanced to the

second stage, and the trial court appointed counsel to represent the defendant. The defendant’s

postconviction counsel did not amend the petition and filed a certification pursuant to Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017). The trial court granted the State’s motion to strike

an unnotarized declaration attached to the defendant’s pro se petition and to dismiss his claim of

actual innocence. The remaining claims in the postconviction petition were advanced to a third-

stage evidentiary hearing, following which, the trial court dismissed the defendant’s

postconviction petition.

¶6 A. Underlying Incident and Trial

¶7 The following facts are adopted from our order on direct appeal. After the disappearance

of the defendant’s fourth wife, Will County State’s Attorney James Glasgow reopened an

investigation into the death of the defendant’s third wife, which originally had been classified as

2 an accidental drowning. Ultimately, the defendant was convicted of murdering his third wife and

sentenced to a term of imprisonment in the Illinois Department of Corrections (IDOC).

¶8 In early August 2014, Glasgow received a letter from an inmate at the Menard Correctional

Center named Antonio Smith. Smith informed investigators that the defendant asked him to find

someone to kill Glasgow in exchange for money. Smith volunteered to be a confidential informant

and agreed to wear a recording device. The FBI directed the eavesdropping investigation in

cooperation with IDOC officials.

¶9 In mid-November 2014, Smith began wearing the recording device. Smith previously had

told the defendant that his uncle would commit the murder. On the recording, Smith told the

defendant that his uncle was “ready.” The defendant told Smith that he still needed Glasgow gone

because it would get him out of prison. The investigation ran from November 13, 2014, through

December 3, 2014, after which Smith was moved to another prison for his safety, and subsequently

transferred to a federal prison.

¶ 10 On February 9, 2015, the defendant was charged with solicitation of murder and solicitation

of murder for hire. At trial, Smith testified about his conversations with the defendant, and the

recordings of some of those conversations were admitted into evidence. Smith told the jury the

defendant asked him to find someone to kill Glasgow, and he believed the defendant was serious

because he blamed Glasgow for putting him in prison. In exchange, the defendant promised that

he would “take care” of Smith and his family. He offered $10,000 to whomever committed the

murder.

¶ 11 The defendant called three witnesses at trial, all of which were inmates. Jesus Padilla was

serving a sentence at the Menard prison and knew both the defendant and Smith. The trial court

sustained an objection to a question about whether Smith had a reputation for honesty. Albert

3 Chavez was also serving a prison sentence at Menard. He knew both the defendant and Smith and

testified that he stopped hanging out with the defendant because “they were running a scam,”

which he explained was something that inmates do to get what they want. Finally, Jacob Bohanon

testified that he was Smith’s codefendant. He testified that he had known Smith for a year or two

before prison and while they were imprisoned at Menard and testified that Smith had a reputation

for being untruthful and that he would lie most of the time.

¶ 12 In closing argument, defense counsel told the jury that Smith and the defendant were

running a scam to get Smith out of Menard. Defense counsel claimed that their scam had worked

because Smith had gotten what he wanted. Smith had been transferred to a federal correctional

facility and was being treated like a king.

¶ 13 On May 31, 2016, the jury found the defendant guilty of both solicitation of murder for

hire and solicitation of murder. The circuit court found that the second charge merged with the

first and sentenced him to a prison term of 40 years on the solicitation of murder for hire

conviction. The defendant timely filed a motion to reconsider the sentence, which was denied.

¶ 14 B. Postconviction Petition

¶ 15 On October 18, 2021, the defendant filed a pro se postconviction petition asserting he did

not receive effective assistance of trial counsel for a number of reasons and a claim of actual

innocence. Regarding the actual innocence claim, the petition asserted that the defendant and

Smith had run a scam to get Smith’s sentence reduced; there was never an actual solicitation to

murder Glasgow; and Glasgow was never in danger. The petition also asserted that the claim was

supported by an unnotarized declaration purportedly signed by Smith. The declaration stated that

Smith was looking for ways to reduce his sentence. The defendant wanted to help Smith so they

came up with “The Scam,” wherein Smith would make a report and try to convince the authorities

4 that the defendant was plotting to have Glasgow killed. Although the defendant was bitter about

what happened to him, he never plotted to kill anyone. The scam was a falsehood to try to get

Smith’s sentence reduced. The defendant was innocent of the alleged plot to kill Glasgow, and

Smith was willing to testify in court about the scam and the defendant’s innocence.

¶ 16 The circuit court reviewed the pro se petition, found it was not frivolous or patently without

merit, and appointed postconviction counsel for the defendant. Postconviction counsel did not file

an amended postconviction petition, electing instead to adopt the defendant’s pro se petition.

¶ 17 On July 1, 2022, postconviction counsel filed a motion to produce witness, requesting the

circuit court to order the State to disclose Smith’s location and to produce him for all evidentiary

hearings. Counsel alleged that although Smith was being held in a federal correctional facility, the

State possessed Smith or could gain access to his location. Counsel further alleged it was necessary

to further the investigation of the defendant’s claims that he be provided with Smith’s location.

Postconviction counsel also filed a petition for writ of habeas corpus ad testificandum, alleging

that Smith was a material witness and requesting that Smith be produced to testify.

¶ 18 The same day, counsel filed an Illinois Supreme Court Rule 651(c) certificate (eff. Feb. 6,

2013). In the certificate, postconviction counsel attested that he had consulted with the defendant

in person and by telephone to ascertain his contentions of depravation of his constitutional rights,

examined the record of the proceedings at the trial, and made any amendments to the petition

which were necessary for an adequate presentation of the defendant’s contentions.

¶ 19 On July 14, 2022, the State filed a motion to strike Smith’s purported declaration and

dismiss the defendant’s allegation of actual innocence based upon the alleged recanting of Smith’s

trial testimony. At a July 18, 2022, hearing, the State informed the circuit court that although all

pending motions were set to be heard later that week, the State had recently filed the motion to

5 strike/dismiss. The State produced a file-stamped copy of the motion which had not yet made it

into the court file. The State argued that the Smith declaration attached to the defendant’s

postconviction petition was a forgery. Consistent with its written motion, the State further argued

that the declaration was not an affidavit because it was not notarized; thus, the declaration should

be stricken, and the claim of actual innocence should be dismissed.

¶ 20 Postconviction counsel acknowledged that the declaration was not notarized. He informed

the circuit court that two weeks prior to the hearing, he had filed a motion to produce Smith as a

witness and a petition for writ of habeas corpus ad testificandum, seeking to discover Smith’s

location. Counsel explained his efforts to locate Smith, including searching the federal system of

corrections database which revealed there were a number of “Antonio Smiths” located throughout

the country. Counsel stated that he believed the circuit court had the power to order the State to

produce Smith to allow counsel an opportunity to investigate the matter. Although the circuit court

informed postconviction counsel that it previously was unaware that he had any issues contacting

Smith, or that counsel had filed the aforementioned motions, it reminded counsel that the

postconviction petition was at the second stage which required Smith’s declaration to be notarized.

In its written order, the circuit court found that Smith’s declaration was not an affidavit and that

the lack of an affidavit attached to the defendant’s petition was a procedural defect. Accordingly,

the circuit court granted the State’s motion to strike the declaration and dismissed the claim of

actual innocence based on the declaration. However, the circuit court allowed the defendant’s

remaining claim of ineffective assistance of trial counsel to advance to a third-stage evidentiary

hearing.

6 ¶ 21 On July 22, 2022, the hearing on the defendant’s postconviction petition was held. The

defendant’s trial counsel was the only witness called to testify. The circuit court dismissed the

defendant’s petition for postconviction relief. The defendant filed this timely appeal.

¶ 22 II. Analysis

¶ 23 The defendant contends that the circuit court abused its discretion when it failed to grant

the defendant’s request for limited discovery into Antonio Smith’s location in the Federal Bureau

of Prisons so that he could attempt to cure Smith’s defective “affidavit.” The defendant further

contends that the trial court erred in dismissing the defendant’s claim of actual innocence. The

defendant argues that postconviction counsel did not adequately represent him pursuant to Rule

651(c).

¶ 24 A. The Post-Conviction Hearing Act

¶ 25 The Illinois Constitution affords a postconviction petitioner the right to assert a claim of

actual innocence based on newly discovered evidence. People v. Ortiz, 235 Ill. 2d 319, 331 (2009).

The evidence must be newly discovered, material and not merely cumulative, and must be of such

conclusive character that it would probably change the result on retrial. Id. at 333.

¶ 26 The Post-Conviction Hearing Act (Act) provides a statutory remedy to criminal defendants

who assert claims for substantial violations of their constitutional rights at trial. People v. Edwards,

2012 IL 111711, ¶ 21. Proceedings under the Act are commenced by the filing of a petition in the

circuit court in which the criminal proceedings took place. 725 ILCS 5/122-1(b) (West 2020). The

postconviction petition must “clearly set forth the respects in which petitioner’s constitutional

rights were violated” and shall have attached thereto affidavits, records, or other evidence

supporting its allegations or shall state why the same are not attached. Id. § 122-2.

7 ¶ 27 “The Act provides a three-stage mechanism for a defendant to advance such a claim.”

People v. Addison, 2023 IL 127119, ¶ 18. “At the first stage, the trial court must independently

review the petition within 90 days of its filing and determine whether it is frivolous or patently

without merit.” Id.; 725 ILCS 5/122-2.1(a)(2) (West 2020). Thereafter, if the petition is not

summarily dismissed, it must be set for further consideration in the second stage. 725 ILCS 5/122-

2.1(b) (West 2020); Addison, 2023 IL 127119, ¶ 18.

¶ 28 “The second stage of postconviction review tests the legal sufficiency of the petition.”

(Internal quotation marks omitted.) People v. Dixon, 2018 IL App (3d) 150630, ¶ 12. At this stage,

the petitioner’s allegations are taken as true, unless affirmatively refuted by the record; then, the

question becomes whether the allegations establish a constitutional violation. Id. At the second

stage, the petitioner bears the burden of making a substantial showing of a constitutional violation.

Id. “If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still part

of the second stage.” People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009). “The purpose of the

first two stages is to determine whether an evidentiary hearing is even necessary.” People v. Fields,

2020 IL App (1st) 151735, ¶ 42. Although partial summary dismissals are not permissible during

first-stage postconviction proceedings (People v. Rivera, 198 Ill. 2d 364, 374 (2001)), it is

permissible for a circuit court to partially dismiss a postconviction petition at the second stage and

advance only certain claims for a third-stage evidentiary hearing. People v. Lara, 317 Ill. App. 3d

905, 908 (2000).

¶ 29 At the third-stage evidentiary hearing, the circuit court “may receive proof by affidavits,

depositions, oral testimony, or other evidence.” 725 ILCS 5/122-6 (West 2020). At this stage, a

defendant must prove by a preponderance of the evidence that he suffered a substantial denial of

8 a constitutional right. People v. Pendleton, 223 Ill. 2d 458, 472-73 (2006). Fact-finding and

credibility determinations are made at the third-stage evidentiary hearing. Id. at 473.

¶ 30 Although on appeal the defendant characterizes his motions as a request for limited

discovery, review of the record reveals they were not. Instead, the defendant’s petition for writ of

habeas corpus ad testificandum and motion to produce witness requested that Smith be produced

to testify, which was not appropriate for this stage of the postconviction proceedings (at the second

stage, a circuit court considers only proofs attached by defendant to his petition and the original

trial record (People v. Edgecombe, 2020 IL App (1st) 171923, ¶ 56 (citing People v. Sanders, 2016

IL 118123, ¶¶ 45, 48))).

¶ 31 Although not provided for in the Act, the Illinois Supreme Court has held that a circuit

court has inherent discretionary authority to order discovery in a postconviction proceeding.

People v. Williams, 209 Ill. 2d 227, 236 (2004). Due to the potential for abuse of the discovery

process, and because of the limited scope of postconviction proceedings, the circuit court’s

authority must be exercised with caution. Id. “Thus, discovery should be allowed only after the

moving party demonstrates good cause for the request.” Id. Good cause must be evaluated in light

of the claims raised in the petition, the scope of the requested discovery, the time between the

conviction and the postconviction proceeding, the burden of discovery on the State and any

witnesses, and the availability of the evidence from other sources. People v. Pinkston, 2013 IL

App (4th) 111147, ¶ 13 (citing People v. Johnson, 205 Ill. 2d 381, 408 (2002)). A circuit court’s

denial of a postconviction discovery request will be reversed only if the trial court abused its

discretion. Id. Based upon the facts before us, we find the circuit court did not abuse its discretion

as postconviction counsel failed to sufficiently designate his motions as a request for limited

9 discovery. We further find that the circuit court did not err in striking Smith’s unnotarized

declaration and dismissing the defendant’s claim of actual innocence.

¶ 32 B. Whether Defendant Received Reasonable Assistance

¶ 33 The defendant maintains that he did not receive reasonable assistance from postconviction

counsel where counsel failed to correct the defective Smith “affidavit” or explain in the petition

why he could not obtain a notarized affidavit from Smith.

¶ 34 Pursuant to Rule 651(c), “[p]ostconviction counsel must consult with the defendant to

ascertain his contentions of deprivation of constitutional rights, examine the record of the

proceedings and the trial, and make any amendments to the pro se petition that are necessary to

adequately present the defendant’s contentions.” People v. Urzua, 2023 IL 127789, ¶ 33. If in the

course of fulfilling the 651(c) requirements, postconviction counsel discovers something in the

pro se petition that would ethically prevent him from presenting the petitioner’s claims, counsel

may move to withdraw and explain why each of the petitioner’s pro se claims lacks merit. Id. The

filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that postconviction counsel

provided reasonable assistance. People v. Jones, 2011 IL App (1st) 092529, ¶ 23. The petitioner

may overcome this burden by showing that postconviction counsel failed to substantially comply

with Rule 651(c). Id.

¶ 35 The Act provides that a “petition shall have attached thereto affidavits, records, or other

evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-

2 (West 2020). “An affidavit consists of a ‘statement sworn to before a person who has authority

under the law to administer oaths.’ ” People v. Allen, 2015 IL 113135, ¶ 31 (quoting Roth v. Illinois

Farmers Insurance Co., 202 Ill. 2d 490, 494 (2002)). The Illinois Notary Public Act (5 ILCS

312/1-101 et seq. (West 2020)) provides that “[a] notarial act must be evidenced by a certificate

10 signed and dated by the notary public. The certificate must include identification of the jurisdiction

in which the notarial act is performed and the official seal of office.” Id. § 6-103(a). At the second

stage of postconviction proceedings, “appointed counsel owes a duty to remedy procedural

defects.” People v. Turner, 2012 IL App (2d) 100819, ¶ 41.

¶ 36 “Where a defendant has submitted an unnotarized statement, the State may challenge this

nonjurisdictional procedural defect at the second stage of proceedings.” Allen, 2015 IL 113135,

¶ 35. When a defendant does not cure a defective affidavit at the second stage, the court may

dismiss the petition upon the State’s motion. Id.; see also Urzua, 2023 IL 127789, ¶ 61 (claim of

actual innocence supported only by an unnotarized statement, even one signed under penalty of

perjury, was insufficient to survive a second-stage motion to dismiss).

¶ 37 Here, by adopting the defendant’s pro se petition, postconviction counsel implicitly

acknowledged that the claims potentially had merit. Thus, counsel had a duty to attach a notarized

affidavit to the petition or state why the notarized affidavit was not attached. 725 ILCS 5/122-2

(West 2020). Instead of electing to adopt the defendant’s pro se petition, postconviction counsel

could have filed an amended petition stating why the notarized affidavit was not attached. He then

could have filed a sufficiently designated motion for limited discovery seeking Smith’s location in

the federal correctional facility. We express no opinion on the question of whether the defendant

could demonstrate good cause to support his request for discovery or whether the circuit court

would have granted such a motion. However, postconviction counsel’s failure to remedy the

procedural defect at the second stage of proceedings resulted in the circuit court’s dismissal of the

defendant’s actual innocence claim. Accordingly, we find that the defendant has met his burden to

overcome the presumption of reasonable assistance by establishing that postconviction counsel did

not comply with the mandatory Rule 651(c) duties.

11 ¶ 38 Illinois courts consistently have held that remand is required where postconviction counsel

failed to fulfill the duties set forth in Rule 651(c) regardless of whether the claims raised in the

petition had merit. Addison, 2023 IL 127119, ¶ 33 (citing People v. Suarez, 224 Ill. 2d 37, 47

(2007)). We conclude that this cause should be remanded to the circuit court. On remand, new

postconviction counsel should be given the opportunity to file an amended petition and shall ensure

that the amended petition has “attached thereto affidavits, records, or other evidence supporting its

allegations or shall state why the same are not attached.” 725 ILCS 5/122-2 (West 2020).

¶ 39 III. Conclusion

¶ 40 The judgment of the circuit court is affirmed in part and reversed in part. The cause is

remanded so that postconviction counsel may file an amended postconviction petition which

adequately presents the defendant’s claims.

¶ 41 Affirmed in part and reversed in part; cause remanded with directions.