2024 IL App (2d) 210393-UB No. 2-21-0393 Order filed November 26, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-3014 ) CARLOS PORCAYO-BAHENA, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Justice Birkett concurred in the judgment. Justice Kennedy dissented
ORDER
¶1 Held: Trial and appellate counsel were not ineffective for failing to challenge trial court’s ruling that witness could invoke her privilege against self-incrimination; postconviction counsel was presumed to have made a reasonable effort to obtain evidence supporting the amended postconviction petition.
¶2 We confront this appeal for a second time. In our initial decision, we affirmed the dismissal
of defendant’s postconviction petition at the second stage of proceedings. After our original
disposition was entered, the supreme court denied defendant’s petition for leave to appeal and 2024 IL App (2d) 210393-UB
issued a supervisory order directing us to reconsider in light of its decision in People v. Urzua,
2023 IL 12789. People v. Porcayo-Bahena, No. 129892 (2023) (supervisory order). We directed
the parties to submit supplemental briefing that addressed both Urzua and People v. Agee, 2023
IL 128413, another supreme court decision that may have been potentially relevant. After receiving
the supplemental briefs, we agree with the State that neither decision impacts the case before us.
This case is distinguishable from Urzua, as there is no indication that counsel did not understand
the evidentiary requirements for postconviction proceedings. Urzua, 2023 IL 12789, ¶ 63.
Similarly, this case is distinguishable from Agee, as defendant has not shown that counsel failed
to include evidence that was existing and available. Agee, 2023 IL 128413, ¶ 56. As neither case
affects our disposition, and the authority remains controlling (see People v. Johnson, 154 Ill. 2d
227 (1993)) we continue to affirm, and our original Rule 23 order is reissued in its entirety as
follows.
¶3 Defendant, Carlos Porcayo-Bahena, appeals an order of the circuit court of Lake County
dismissing his postconviction petition (see 725 ILCS 5/122-1 et seq. (West 2016)) after second-
stage proceedings. He raises two main issues. First, defendant contends that trial counsel and
appellate counsel were ineffective for failing to properly challenge the trial court’s ruling that a
witness (Maria Porcayo, hereinafter “Maria”) could invoke her fifth-amendment privileges (see
U.S. Const., amend. V). Second, defendant also contends that postconviction counsel did not
provide reasonable assistance because counsel failed to attach certain evidence to defendant’s
postconviction petition. For the reasons that follow, we affirm.
¶4 I. BACKGROUND
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¶5 In resolving defendant’s direct appeal in this matter, we set forth the facts of this case. See
People v. Porcayo-Bahena, 2014 IL App (2d) 121379-U, ¶ 3. We will not reiterate them here;
rather, we limit our discussion to the facts pertinent to this appeal.
¶6 Defendant stands convicted of one count of predatory criminal sexual assault and six counts
of aggravated criminal sexual abuse. Two victims were involved, L.O. and A.O. Both testified
regarding the details of the offenses. See Porcayo-Bahena, 2014 IL App (2d) 121379-U, ¶¶ 4-8.
At issue in this appeal are the trial court’s rulings concerning certain impeachment evidence that
defendant was unable to offer against the two victims. Defendant points to evidence that he asserts
established a motive for these witnesses to fabricate the charges against him. He alleged that his
trial counsel and his appellate counsel were ineffective for failing to raise this issue on direct
appeal.
¶7 Regarding the alleged motive of these witnesses, defendant sought to call Maria (the
victims’ mother) and question her about, inter alia, her immigration status and that of L.O. and
A.O. The trial court found that Maria could invoke her fifth-amendment rights and decline to
answer questions about her immigration status. Defendant wanted to introduce this testimony to
establish the relevance of additional evidence regarding how fabricating charges against defendant
would have allowed Maria or her children to obtain a U-Visa. A U-Visa allows certain victims of
criminal activity to remain in the country. 8 C.F.R. § 214.14 (Aug. 3, 2020). Being a victim of a
sexual offense would qualify one for a U-Visa. Id.
¶8 Defendant’s mother, Julia Porcayo, signed an affidavit averring she was party to a
conversation involving Maria where the U-Visa program was discussed. During this conversation,
according to Julia, Maria encouraged another woman to accuse her husband of domestic battery
so that she could “attain legal status in the United States through the U-visa program.” However,
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absent evidence of the immigration status of Maria, L.O., or A.O., the trial court found that
defendant had not established that this evidence was relevant.
¶9 Accordingly, the trial court determined: (1) Maria could invoke the fifth amendment to
avoid questions about her immigration status and (2) absent such testimony, evidence regarding
her purported desire to obtain a U-Visa was not relevant. The court found defendant failed to make
a substantial showing that counsel was ineffective and dismissed the petition. This appeal
followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant raises two issues. First, he argues trial counsel and appellate counsel
were ineffective for not challenging the trial court’s ruling regarding Maria invoking her fifth-
amendment privileges. Second, he asserts that postconviction counsel did not comply with Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013) in that counsel did not adequately support his
postconviction petition with appropriate affidavits or evidence.
¶ 12 The trial court dismissed defendant’s claims following second-stage postconviction
proceedings. In accordance with the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2016)), a defendant may challenge a conviction by alleging a constitutional violation. People v.
Domagala, 2013 IL 113688, ¶ 32. The Act contemplates a three-stage process of review. During
the second stage, a defendant bears the burden of “making a substantial showing of a constitutional
violation.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the petition survives to the second
stage, an attorney may be appointed to assist the defendant. Id. at 472. A defendant is entitled to a
“reasonable level of assistance” during postconviction proceedings. People v. Addison, 2023 IL
127119, ¶ 19; People v. Turner, 187 Ill. 2d 406, 410 (1999). “At the second stage of proceedings,
all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true, and,
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in the event the circuit court dismisses the petition at that stage, we generally review the circuit
court’s decision using a de novo standard.” Pendleton, 223 Ill. 2d at 473. We may affirm on any
basis appearing in the record, regardless of the rationale used by the trial court. People v. Jones,
2015 IL App (1st) 133123, ¶ 33.
¶ 13 We now turn to defendant’s contention that he received ineffective assistance. Defendant
contends that he received ineffective assistance of counsel from both trial and appellate counsel
regarding their handling of the trial court’s ruling that Maria could invoke her fifth-amendment
privilege if questioned about her immigration status. We disagree.
¶ 14 As a preliminary matter, we note that the State argues that the law-of-the-case doctrine (see
People ex rel. Madigan v. Illinois Commerce Comm’n, 2012 IL App (2d) 100024, ¶ 31) precludes
defendant from raising this issue at this time. Generally, the law-of-the-case doctrine bars a party
from relitigating an issue that was already decided in the same case. People v. Tenner, 206 Ill. 2d
381, 395 (2003). As this is a collateral attack, the law-of-the-case doctrine does not apply. Id. at
395-96 (“[The law-of-the-case] doctrine does not apply here because the instant case involving the
defendant’s second post-conviction petition is not the same case as either that involving his first
post-conviction petition or that involving his federal habeas corpus petition.”). Nevertheless, the
State is correct that this issue is partially precluded, though the relevant doctrines are actually
forfeiture and res judicata: “[W]here a petitioner has previously taken an appeal from a judgment
of conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of res
judicata, postconviction review of all issues actually decided by the reviewing court, and any other
claims that could have been presented to the reviewing court will be deemed waived.” People v.
Edwards, 2012 IL 111711, ¶ 21. As the State points out, trial counsel did raise the fifth-amendment
issue in defendant’s post-trial motion, so trial counsel did challenge the trial court’s ruling on the
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matter. Moreover, we agree with the trial court’s observation that any issue concerning trial
counsel’s performance was forfeited as it could have been raised on direct review, but was not.
See People v. English, 2013 IL 112890, ¶ 22. Therefore, as the State points out, “The only viable
claim” in this appeal “is whether appellate counsel was ineffective for failing to raise this claim on
direct appeal.” Accordingly, we confine our analysis to appellate counsel’s performance on direct
¶ 15 Defendant asserts appellate counsel’s failure to raise this issue constitutes ineffective
assistance of counsel. We assess the performance of appellate counsel using the familiar
framework first set forth in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., People v.
Harris, 206 Ill. 2d 1, 34 (2002). Under Strickland, a criminal defendant must establish that his
attorney’s performance fell below an objective level of reasonableness and that this failure
prejudiced the defendant. Id. at 16. Regarding appellate counsel, a defendant “must show that the
failure to raise an issue on direct appeal was objectively unreasonable and that the decision
prejudiced defendant.” People v. Childress, 191 Ill. 2d 168, 175 (2000). Unless a defendant shows
that the issue appellate counsel failed to raise is meritorious, he or she cannot establish prejudice.
Id. Because a defendant must satisfy both prongs of this analysis, the failure to establish either is
fatal to a claim. Id. at 318.
¶ 16 We can begin and end with the second prong, as it is clear that defendant cannot establish
prejudice. Generally, where a defendant asserts ineffectiveness of counsel for failing to call a
witness, “such claims must be supported by an affidavit from the proposed witness because, in the
absence of an affidavit, a reviewing court cannot determine whether the proposed witness could
have provided testimony or information favorable to the defendant.” People v. DuPree, 2018 IL
122307, ¶ 39. Given Maria’s unwillingness to testify, securing an affidavit from her may not have
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been possible. Nevertheless, it was incumbent upon defendant to provide some evidence indicating
that her testimony would have been helpful to him. To be helpful, Maria would have had to
acknowledge that her or her children’s immigration status was such that a U-Visa would have been
useful to them. Conversely, counsel could have sought evidence from some other source to
establish Maria’s immigration status (such as testimony from other witnesses or federal
immigration records). Absent such evidence, it is mere speculation to conclude that defendant
suffered prejudice due to the exclusion of Maria’s testimony. See People v. Bew, 228 Ill. 2d 122,
135 (2008) (“Strickland requires actual prejudice be shown, not mere speculation as to
prejudice.”). Thus, defendant’s claim must fail regarding appellate counsel.
¶ 17 Seeking to avoid this result, defendant argues that he has “made a substantial showing of
prejudice.” He asserts that Maria’s testimony would have made relevant the testimony of two other
witnesses who purportedly could testify about conversations they had with Maria about the U-Visa
program. However, the relevance of this testimony depended on what answer Maria would have
given about her immigration status. Again, we are left to speculate regarding what Maria’s
testimony would have been and whether it would have allowed defendant to introduce the evidence
about U-Visas. In short, given the lack of evidence regarding how Maria would have testified (or
similar evidence from another source), we are compelled to conclude defendant has not established
prejudice—a necessary component of a claim of ineffectiveness. Childress, 191 Ill. 2d at 175.
¶ 18 Defendant’s second contention is that postconviction counsel provided unreasonable
assistance for failing to amend his postconviction petition with adequate evidence to support its
allegations. Defendant asserts that postconviction counsel should have included some evidence
that Maria, L.O., or A.O were in the country illegally (i.e., the sort of evidence that was lacking
regarding defendant’s first argument).
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¶ 19 Defendant notes that the petition, as amended by postconviction counsel, identified three
potential sources of such information: federal immigration records; cross-examination of L.O. and
A.O; and testimony from Maria’s mother, Julia, regarding immigration status. Defendant points
out that postconviction counsel did not attach any immigration records or affidavits from L.O. or
A.O. He did attach an affidavit from Julia; however, it contained no information regarding what
Julia would have testified to if questioned regarding Maria’s immigration status at trial. The trial
court specifically cited that lack of such affidavits and immigration records in granting the State’s
motion to dismiss the petition. Such evidence, according to defendant, would have provided a
foundation for testimony about the U-Visa program, which would then establish a potential motive
for the victims to fabricate the charges.
¶ 20 Again, a defendant is entitled to the reasonable assistance of counsel during postconviction
proceedings. Addison, 2023 IL 127119, ¶ 19; Turner, 187 Ill. 2d at 410. Hence, Illinois Supreme
Court Rule 651(c) establishes specific duties that counsel must perform during the second stage of
postconviction proceedings. Id. Rule 651(c) states that counsel must consult with the defendant,
examine the record, and amend the defendant’s pro se petition to adequately present the
defendant’s claims. People v. Marshall, 375 Ill. App. 3d 670, 680 (2007); Ill. S. Ct. R. 651(c) (eff.
Feb. 6, 2013). It further mandates that counsel file an affidavit stating that he or she has complied
with the rule. Schlosser, 2012 IL App (1st) 092523, ¶ 18. Where such an affidavit is filed, it creates
a rebuttable presumption that postconviction counsel provided reasonable assistance. Profit, 2012
IL App (1st) 101307, ¶ 19. This presumption entails a further presumption that counsel made an
effort to obtain necessary “affidavits or other documents” but was unsuccessful. People v. Johnson,
154 Ill. 2d 227, 241(1993); People v. Kirk, 2012 IL App (1st) 101606, ¶ 25; People v. Kirkpatrick,
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2012 IL App (2d) 100898, ¶ 21. We review this issue using the de novo standard. People v. Suarez,
224 Ill. 2d 37, 41-42 (2007).
¶ 21 Here, postconviction counsel filed such an affidavit, so defendant bears the burden of
overcoming this presumption. Id. Moreover, counsel’s failure to follow Rule 651(c) may not be
excused on the basis that it is harmless. Addison, 2023 IL 127119, ¶¶ 36-42; Suarez, 224 Ill. 2d
37, 51-52. Our supreme court has held, “[I]t is error to dismiss a postconviction petition on the
pleadings where there has been inadequate representation by counsel.” Suarez, 224 Ill. 2d at 47.
Accordingly, if counsel fails to comply with Rule 651(c), a defendant need not show that the
omission was prejudicial. People v. Nitz, 2011 IL App (2d) 100031, ¶ 18 (citing People v. Perkins,
367 Ill. App. 3d 895, 905 (2006)).
¶ 22 Quite simply, defendant has not rebutted the presumption that counsel made an effort to
obtain necessary affidavits and evidence. See Johnson, 154 Ill. 2d at 241. Defendant points to
nothing in the record that indicates that postconviction counsel did not attempt to secure necessary
support for the postconviction petition, albeit unsuccessfully. Accordingly, defendant had not
established that he received unreasonable assistance of counsel during postconviction proceedings.
Therefore, we reject defendant’s argument on this point.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the dismissal of defendant’s postconviction petition and
reject defendant’s claim that postconviction counsel rendered unreasonable assistance. We
therefore affirm the judgment of the circuit court of Lake County.
¶ 25 Affirmed.
¶ 26 JUSTICE KENNEDY, dissenting:
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¶ 27 I respectfully dissent because, although I agree with the majority that defendant failed to
make a substantial showing that either his trial or appellate counsel were ineffective, I disagree
that defendant received reasonable assistance of postconviction counsel. Therefore, I would vacate
and remand for a new second-stage proceeding.
¶ 28 In Agee, 2023 IL 128413, ¶¶ 44-46, our supreme court held that postconviction counsel has
a duty of reasonable assistance under Supreme Court Rule 651(c) (eff. July 1, 2017) when both
amending the pro se petition and adding new claims. The duty of reasonable assistance requires
that postconviction counsel adhere to the Act’s pleading requirements found in section 122-2 (725
ILCS 5/122-2 (West 2022)). Specifically, the postconviction petition “shall have attached thereto
affidavits, records, or other evidence supporting its allegations or shall state why the same are not
attached.” (Emphasis added.) Id. Our supreme court has upheld the dismissal of a pro se
postconviction petition at the first stage for noncompliance with section 122-2, explaining that a
pro se petitioner may not be excused from section 122-2’s pleading requirement to, if not attaching
affidavits or other evidence, explain why such evidence is unobtainable. People v. Collins, 202 Ill.
2d 59, 68-69 (2002). A fortiori, postconviction counsel has a duty under Rule 651(c) to fully
comply with section 122-2’s pleading requirements when adding a claim to the pro se petition,
where the petitioner at the first stage would not have had an opportunity to attach affidavits or
other evidence or explain why the same were not attached.
¶ 29 Here, postconviction counsel had a duty under Rule 651(c) to adequately present
defendant’s claims, including the added claim that trial counsel was ineffective for failing to
present evidence to establish Maria’s immigration status. Yet, counsel did not attach any affidavits
or other evidence to support that claim, and he did not explain why he did not, despite the added
claim wholly depending on unattached evidence. Thus, although postconviction counsel filed a
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Rule 651(c) certificate, I believe the presumption of reasonable assistance is rebutted on the face
of this petition by counsel’s noncompliance not only with section 122-2’s evidentiary requirements
but also with its pleading requirements in adding the new claim. See Collins, 202 Ill. 2d at 68. For
these reasons, I dissent.
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