People v. Pointer

2024 IL App (1st) 201359

• Court: Appellate Court of Illinois
• Decided: March 25, 2024
• Docket: 1-20-1359
• Status: Published

Opinion

2024 IL App (1st) 201359

No. 1-20-1359

Order filed March 25, 2024.

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 05 CR 2181901 ) HENRY POINTER, ) The Honorable ) Carl B. Boyd, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court. Justices Pucinski and Coghlan concurred in the judgment.

ORDER

¶1 Held: Further proceedings on defendant’s postconviction petition were required where the record did not show that postconviction counsel complied with the duties set forth in Illinois Supreme Court Rule 651(c).

¶2 Defendant Henry Pointer appeals from the second-stage dismissal of his petition under

the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2010). On appeal,

defendant asserts that postconviction counsel failed to provide reasonable assistance and comply No. 1-20-1359

with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For the following reasons, we

reverse and remand for further proceedings.

¶3 I. Background

¶4 Following a bench trial in 2006, defendant was convicted of the aggravated criminal

sexual abuse of D.R., a victim under 13 years of age. He was sentenced as a Class X offender to

25 years in prison.

¶5 The State’s evidence generally showed that on August 25, 2005, 12-year-old D.R. lived

with her mother, L.R. and other family members. Defendant, who had been L.R.’s boyfriend for

10 years, was visiting their home that night. After falling asleep on the living room couch, D.R.

awoke to find defendant on top of her. He touched her breasts as well as the area “below her

pants.” When she tried to push him away, he pressed her down hard while grinding and

“pumping” his penis against her leg. Meanwhile, L.R. was returning home and saw through the

window that defendant was lying on top of D.R., moving his body up and down on her, and

placing his hands on the sides of her breasts.

¶6 L.R. yelled for D.R. to open the front door. Defendant quickly got off of D.R., giving her

the opportunity to do so. L.R. then charged defendant and repeatedly hit him, while D.R., ran

upstairs crying. The State also presented evidence that in August 1990, defendant performed oral

sex on 8-year-old A.P., the daughter of his then girlfriend. Defendant admitted to police that he

had done so.

¶7 In contrast, defendant testified that he was asleep on the couch when D.R. pushed him to

make more room. He initially told her to “get up” but then decided to get up himself because he

had to go to work. As defendant crawled over D.R., L.R. appeared in the living room window.

2 No. 1-20-1359

Defendant also denied A.P.’s account of what occurred in 1990. Defendant subsequently

appealed.

¶8 In 2007, while defendant’s direct appeal was still pending, he filed a pro se petition for

postconviction relief. The petition alleged that trial counsel was ineffective for failing to file a

motion for substitution of judge and “refusing to call my witnesses that could have testified [on]

my behalf.” In addition, trial counsel was ineffective for refusing to file a motion in limine to

preclude the testimony of “a witness to case 16 years ago[,] [w]ho had robbed me, and was

intoxicated on the witness, who [did] not stay [awake].” His petition also stated that counsel

failed to move for a mistrial “when the intoxicated [witness] could not get her story straight and

was drunk on the witness stand.” Furthermore, counsel “presented no viable defense.” Finally,

the petition alleged that the trial court was biased and hostile against him, acted as an advocate

for the State and knew that “the witness was drunk on the stand.”

¶9 Defendant attached to the petition his own notarized affidavit, which reiterated some of

the petition’s allegations. The affidavit added that trial counsel failed to have the arresting officer

tell the court what he saw upon his arrival at the scene. Additionally, defendant had informed

counsel that “this case was about me going with both sisters and she did not bring it up in my

trial.” Counsel also failed to “bring up that I was robbed by this same witness,” failed to file a

motion to dismiss the charges and allowed the State to present testimony from “a witness who

had nothing to do with the case.” On December 7, 2007, the petition was docketed for the second

stage and defendant was appointed postconviction counsel.

¶ 10 On May 19, 2008, while postconviction proceedings were still pending, this court entered

a written order sustaining defendant’s conviction but remanding for resentencing before a

different judge. People v. Pointer, 1-07-0368 (2008) (Unpublished Order Under Supreme Court

3 No. 1-20-1359

Rule 23). At a postconviction hearing several months later, the trial court observed that

defendant’s petition might be “moot” because he no longer had a sentence or, consequently, a

final conviction. After conferring with defendant, postconviction counsel informed the court that

defendant wished to withdraw the petition without prejudice. The court permitted him to do so.

¶ 11 On December 12, 2008, defendant was resentenced to 25 years in prison for aggravated

criminal sexual abuse. We affirmed the judgment on May 14, 2010, rejecting defendant’s

assertion that the trial court abused its discretion at his second sentencing hearing. People v.

Pointer, 1-09-0196 (2010) (Unpublished Order Under Supreme Court Rule 23).

¶ 12 At some point thereafter, defendant moved to reinstate his postconviction petition, which

the trial court permitted on July 29, 2011. The court also appointed counsel. On December 2,

2016, appointed counsel, Jeffrey Walker, filed the following certificate under Illinois Supreme

Court Rule 651(c):

“1. I have consulted with the petitioner, Henry Pointer, by mail, by phone and in

person to ascertain his contentions of deprivation of constitutional rights;

2. I have obtained and read the trial transcript in this case; Dated: December 2,

2016;

3. After the aforementioned consultation and reading of the trial transcript, I am

prepared to argue the issues already raised by Henry Pointer in his pro se post-conviction

petition.”

At a hearing on the same date, Walker told the court that he would not be filing a supplemental

petition.

4 No. 1-20-1359

¶ 13 Unfortunately, Walker subsequently passed away, leading the court to appoint Mary

Duchatellier to represent defendant. She subsequently filed a Rule 651(c) certificate stating as

follows:

“1. I have consulted with the petitioner, Henry Pointer, by phone and mail to

ascertain his contentions of deprivation of constitutional rights.

2. I have reviewed the record of proceedings, including the common law record

and report of proceedings.” 1

She did not file an amended or supplemental petition on defendant’s behalf.

¶ 14 On April 20, 2018, the State filed a motion to dismiss, arguing that defendant had not

shown a lack of culpable negligence for the untimely reinstatement of his petition. 2 According to

the State, defendant did not refile his petition until July 29, 2011, more than a year after the

second direct appeal was concluded. That petition was due to be filed, however, by December

18, 2010. Additionally, the State argued that the petition’s claims were meritless. Specifically,

defendant failed to identify what viable defense was available, what witnesses trial counsel ought

to have presented, or what led defendant to believe that a witness was intoxicated. He did not

attach any witness affidavits either. Furthermore, defendant failed to show prejudice from

counsel’s alleged failure to file a motion in limine or to seek a mistrial. Defendant also waived

his assertion that the court did not act as a neutral arbiter by failing to raise that issue on direct

appeal and, in any event, the record showed that the court fulfilled its duties in that regard.

1 We note that while the body of the certificate is dated, November 2, 2017, the petition was file stamped April 13, 2018. 2 See also People v. Lighthart, 2023 IL 128398, ¶ 68 (stating that "[o]nce an incarcerated, self-represented litigant is in receipt of an order of the appellate court disposing of her appeal, she will be able to either file a petition for leave to appeal with this court within 35 days pursuant to Rule 315, or she will have six months from the date such a petition would be due in which to file a postconviction petition”). 5 No. 1-20-1359

¶ 15 On June 29, 2018, Duchatellier told the court, “Judge, we have an issue that we have to

look into further.” She informed the court on September 14, 2018, that she was “trying to get an

affidavit from my client. He moved to a different facility so I'm hoping to get it by the next court

date. Prosecution raised the timeliness issue so I need to submit an affidavit.”

¶ 16 Duchatellier filed a response to the motion to dismiss on November 9, 2018, arguing that

defendant was not culpably negligent for the untimely filing of his petition. According to the

response, petitioner believed that his pro se petition would be automatically reinstated at the

conclusion of resentencing and his second direct appeal. He did not understand that he would be

required to refile the petition. Duchatellier attached documentation in support of defendant’s

assertion, including an affidavit from defendant, but she did not amend the petition itself to

include such documentation. The response did not address the State’s challenges to the merits of

defendant’s petition.

¶ 17 Five months later, Camille Calabrese informed the court that she was taking defendant’s

case from Duchatellier. On July 12, 2019, the State and Calabrese told the court they were

resting on the pleadings. The court entered a continuance to review the appellate record.

¶ 18 On October 23, 2020, the trial court granted the State’s motion to dismiss, finding that

defendant’s petition was untimely and otherwise meritless. The court found defendant’s

complaints about trial counsel reflected proper trial strategy, and that defendant had not

established resulting prejudice. Additionally, defendant had not shown that a witness was

intoxicated at trial. Furthermore, defendant waived issues that could have been raised on direct

appeal.

¶ 19 B. Analysis

6 No. 1-20-1359

¶ 20 On appeal, defendant asserts that he did not receive the reasonable assistance of counsel

contemplated by Rule 651(c). We review the second-stage dismissal of a postconviction petition

de novo. People v. Huff, 2024 IL 128492, ¶ 13.

¶ 21 The Act permits criminal defendants to assert substantial denials of constitutional rights

that occurred during the proceedings that resulted in their convictions. People v. Frey, 2024 IL

128664, ¶ 22. In addition, proceedings under the Act are limited to collateral attacks on the

conviction based on matters that could not have been adjudicated previously. Huff, 2024 IL

128492, ¶ 18. Thus, a defendant forfeits any issue that he could have raised on direct appeal. Id.

Furthermore, section 122-2 of the Act requires that the petition have attached thereto affidavits,

records or other evidence supporting the allegations. People v. Urzua, 2023 IL 127789, ¶ 60.

¶ 22 At the first stage of proceedings, the trial court independently reviews the petition and

may dismiss it if it is frivolous or patently without merit. Frey, 2024 IL 128664, ¶ 22. The

petition must be advanced to the second stage, however, if either (1) the court fails to rule within

90 days or (2) the petition’s factual allegations state an arguable constitutional claim. People v.

Agee, 2023 IL 128413, ¶ 36. The State may then file an answer or a motion to dismiss the

petition. Id. ¶ 37. In ruling on a motion to dismiss, the trial court must decide whether the

petition and attached documentation make a substantial showing of a constitutional violation.

Urzua, 2023 IL 127789, ¶ 34.

¶ 23 Moreover, at the second stage, an indigent defendant is entitled to the appointment of

counsel. Id. ¶ 33. Yet, there is no constitutional right to postconviction counsel, and a defendant

is only entitled to reasonable assistance. Id. ¶ 37. Rule 651(c) (eff. July 1, 2017) states as

7 No. 1-20-1359

“The record *** shall contain a showing, which may be made by the certificate of

petitioner's attorney, that the attorney [(1)] has consulted with petitioner by phone, mail,

electronic means or in person to ascertain his or her contentions of deprivation of

constitutional rights, [(2)] has examined the record of the proceedings at the trial, and

[(3)] has made any amendments to the petitions filed pro se that are necessary for an

adequate presentation of petitioner's contentions.”

Rule 651(c) requires substantial, rather than strict, compliance with the rule. People v. Collins,

2021 IL App (1st) 170597, ¶ 30.

¶ 24 That being said, postconviction counsel must shape the defendant’s pro se claims into

appropriate form. Agee, 2023 IL 128413, ¶ 44. The duty to adequately present a defendant’s

claims includes the necessity to attempt to overcome procedural bars. People v. Schlosser, 2017

IL App (1st) 150355, ¶ 38. When a petition asserts claims that could have been raised on direct

appeal, the defendant can overcome forfeiture by characterizing such matters as ineffective

assistance of appellate counsel claims. People v. Addison, 2023 IL 127119, ¶ 23. Furthermore,

postconviction counsel must amend an untimely pro se petition to set forth any available facts

demonstrating that the untimely filing was not due to the defendant’s culpable negligence.

People v. Lighthart, 2023 IL 128398, ¶ 72.

¶ 25 Postconviction counsel’s certification that he or she complied with the duties set forth in

Rule 651(c) creates a rebuttable presumption that counsel provided reasonable assistance. Urzua,

2023 IL 127789, ¶ 54. In addition, the burden is on the defendant to rebut the presumption. Huff,

2024 IL 128492, ¶ 23. That presumption is overcome, however, where the record demonstrates

that counsel has in fact violated Rule 651(c). Addison, 2023 IL 127119, ¶ 28. Where counsel has

8 No. 1-20-1359

failed to comply with Rule 651(c), we must remand for further proceedings without considering

whether the petition’s claims have merit. Id. ¶ 33.

¶ 26 Here, it is undisputed that the certificates filed by Walker and Duchatellier adequately

addressed the first two requirements of Rule 651(c). The parties dispute, however, whether

Walker’s certificate satisfied the third requirement, that counsel “has made any amendments to

the petitions filed pro se that are necessary for an adequate presentation of petitioner's

contentions.” There’s no dispute that Duchatellier’s certificate did not attempt to satisfy that

requirement at all.3

¶ 27 The State contends that Walker’s certificate satisfied the third requirement by stating,

“After the aforementioned consultation and reading of the trial transcript, I am prepared to argue

the issues already raised by Henry Pointer in his pro se post-conviction petition.” Yet, Walker’s

certificate did not assert, or clearly imply, that defendant’s petition adequately presented his

contentions or that no amendment was necessary. Cf. People v. Landa, 2020 IL App (1st)

170851, ¶¶ 47, 49 (finding counsel’s Rule 651(c) certificate substantially complied with the

rule’s third requirement where the certificate stated that counsel “presented the petitioner's

claims”). Even assuming that Walker’s certificate can be deemed to assert that counsel made any

necessary amendments, raising the presumption that counsel provided reasonable assistance, the

record rebuts that presumption.

¶ 28 The State’s motion to dismiss argued, among other things, that defendant’s attempt to

reinstate his petition was untimely and he failed to show a lack of culpable negligence for the

untimely filing. Defendant’s second attorney, believing that facts were available to show a lack

3 Where one postconviction attorney has complied with Rule 651(c), subsequent postconviction counsel’s duty is to provide reasonable assistance, not to comply with Rule 651(c) a second time. People v. Nelson, 2024 IL App (5th) 210311, ¶¶ 28-29 (citing People v. Smith, 2022 IL 126940, ¶¶ 30-38). 9 No. 1-20-1359

of culpable negligence, filed a response to that motion. She also attached documentation. None

of defendant’s attorneys, however, sought to amend the petition itself to include such allegations

and supporting materials, as is required by the Act. See 725 ILCS 5/122-1, 122-2 (West 2022).

This was unreasonable. See People v. Perkins, 229 Ill. 2d 34, 48-49 (2007) (holding that “Rule

651(c) requires amendment of an untimely petition to allege any available facts showing the

delay in filing was not due to the petitioner's culpable negligence” and that even if counsel does

not anticipatorily rebut the State’s motion to dismiss, counsel may seek leave to amend the

petition to include relevant allegations after the State files its motion).

¶ 29 The State’s motion also argued that defendant forfeited certain assertions by failing to

raise them on direct appeal. Yet, counsel did not amend the petition to add a claim that appellate

counsel was ineffective for failing to raise those matters on direct appeal, which would overcome

such forfeiture. Addison, 2023 IL 127119, ¶¶ 23-24, 26 (finding that postconviction counsel

failed to provide reasonable assistance where counsel found certain claims that could have been

raised on direct appeal were worth pursuing but omitted an ineffective assistance of appellate

counsel claim from the amended petition).

¶ 30 Here, the record shows that postconviction counsel failed to make amendments necessary

to adequately present defendant’s claims, as required by Rule 651(c). Counsel did not understand

the need to amend the petition itself to allege facts supporting a lack of culpable negligence and

counsel did not make a routine amendment to the petition to overcome forfeiture. Accordingly,

the record shows that defendant did not receive the reasonable assistance of counsel. In light of

our determination, we need not consider defendant’s remaining challenges to postconviction

counsel’s assistance.

¶ 31 III. Conclusion

10 No. 1-20-1359

¶ 32 Here, the record does not show that defendant received the reasonable level of assistance

required by Rule 651(c) Accordingly, we must reverse and remand for the appointment of new

counsel and compliance with Rule 651(c). We express no opinion as to the merits of defendant’s

claims or whether an evidentiary hearing is in order See Addison, 2023 IL 127119, ¶ 41.

¶ 33 For the foregoing reasons, we reverse and remand for further proceedings consistent with

this opinion.

¶ 34 Reversed and remanded.