NOTICE 2024 IL App (4th) 230186-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0186 April 15, 2024 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Lee County CORY D. ROBINSON, ) No. 17CF149 Defendant-Appellant. ) ) Honorable ) Jacquelyn D. Ackert, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Steigmann and Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed the trial court’s dismissal of defendant’s postconviction petition and remanded for further proceedings, holding postconviction counsel provided unreasonable assistance.
¶2 Defendant, Cory D. Robinson, was convicted of aggravated criminal sexual abuse
(720 ILCS 5/11-1.60(d) (West 2016)) and battery (id. § 12-3(a)(2)). In September 2021,
defendant filed a pro se postconviction petition. The trial court advanced the petition to the
second stage of postconviction proceedings and appointed counsel to represent defendant. In
February 2023, the court granted the State’s motion to dismiss the petition, finding defendant
waived his postconviction claims by failing to raise them on direct appeal. Defendant appeals the
dismissal of his petition, arguing postconviction counsel provided unreasonable assistance by
failing to amend his petition to adequately present his claims as required by Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For the following reasons, we reverse the court’s judgment
and remand for further proceedings.
¶3 I. BACKGROUND
¶4 In August 2017, the State charged defendant with aggravated criminal sexual
abuse (720 ILCS 5/11-1.60(d) (West 2016)), alleging he committed an act of sexual conduct with
K.J.W. by placing his hands on her breasts, while defendant was over the age of 17 and at least 5
years older than K.J.W. and K.J.W. was at least 13 but under 17 years of age. The State also
charged defendant with battery (id. § 12-3(a)(2)), alleging he knowingly made physical contact
of an insulting or provoking nature when he “rubbed his penis through his clothing onto the
buttocks of K.J.W.”
¶5 Prior to trial, defendant was represented by his retained attorney, but he decided to
proceed pro se on the morning of his bench trial. After admonishing defendant in accordance
with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), the trial court accepted defendant’s
waiver of counsel and the matter proceeded to a bench trial.
¶6 At the bench trial on March 7, 2018, the State called Dixon police detective
Jessica Friday to testify. Friday testified she scheduled a forensic interview with K.J.W. at
Shining Star Children’s Advocacy Center after receiving a report of sexual abuse on June 11,
2017. During the interview, K.J.W. stated defendant contacted her mother and asked if K.J.W.
could assist him with watching his son at his residence. K.J.W. then went to defendant’s
residence. After playing with defendant’s son in the pool, K.J.W. went inside, spoke with
defendant’s wife, Denise, and went upstairs to dry off. Defendant also went upstairs to lay his
son down for a nap. While K.J.W. was upstairs and in her bathing suit, defendant assaulted her
by drying her “buttocks area” with a towel and rubbing his “bad area” against her buttocks.
-2- K.J.W. also stated defendant had previously abused her in the basement of his residence, rubbing
his “bad part” against her buttocks and touching her breasts under her clothing. Friday also spoke
with defendant and his wife, who both confirmed K.J.W. was at their residence on the date of the
incident and that she went upstairs while defendant was there putting his son down for a nap.
¶7 K.J.W. testified consistently with Friday’s testimony. Following K.J.W.’s
testimony, the State rested.
¶8 Defendant called K.J.W.’s mother, Lisa L., to testify. Lisa L. testified defendant
called her in the morning on June 11, 2017, to request assistance. In response to defendant’s
questioning, Lisa L. stated she did not remember the exact time he called. Defendant then
asserted the State had “a screen shot picture of that phone *** conversation,” which would reveal
the time of the phone call. When defendant asked the trial court for a copy of the screenshot, the
prosecutor responded it was provided to defendant in discovery. Defendant told the court he had
asked his former attorney about the screenshot, but the attorney denied any knowledge of it. The
prosecutor stated the only copy he had was on a disk and he had discussed the picture with
defendant’s former attorney, who was planning to use it at trial. The court asserted it was
defendant’s responsibility to find the screenshot if it was disclosed in discovery.
¶9 Defendant then called his wife, Denise. She testified she saw defendant and
K.J.W. going into the kitchen after she returned from church around 1:10 p.m. She testified
K.J.W. was upstairs briefly with defendant to get towels, but they came right back downstairs.
Defendant went back upstairs to put his son down for a nap, and K.J.W. followed approximately
10 minutes later. K.J.W. was upstairs with defendant for “about five minutes at the most” before
she left.
-3- ¶ 10 Defendant testified on his own behalf that he called his neighbor, Lisa L., asking
for “helping hands” to watch his son while he did yard work at “maybe 12:20, 12:30” on June
11, 2017. K.J.W. came over and played with defendant’s son in the pool. When they went inside,
defendant and K.J.W. saw defendant’s wife in the kitchen. Defendant and K.J.W. went upstairs to
get some towels but then immediately came back downstairs to the kitchen. Defendant testified
he then took his son back upstairs to change his diaper. Defendant testified K.J.W. later came
back upstairs, asked him some questions about getting his son to sleep, and then left to go home.
At the conclusion of his testimony, defendant played a video. He explained K.J.W. had taken the
video using his cell phone a few weeks before the alleged incident and it showed him folding
laundry while K.J.W. talked with him. Defendant introduced the video to show K.J.W.’s
“comfort level” with him.
¶ 11 Following closing arguments, the trial court found defendant guilty of both
charges. At defendant’s request, the court appointed an attorney to represent him at sentencing.
Although he was represented by counsel, defendant filed a pro se “Motion for Evidence,”
seeking two screenshot images taken from Lisa L.’s phone.
¶ 12 At the sentencing hearing, the trial court inquired about the motion, and defendant
asserted he believed the screenshots had been requested by his attorney but not disclosed by the
State prior to trial. Defendant contended the screenshots along with K.J.W.’s testimony “would
have established that there would not have been enough time for anything to have occurred.” The
prosecutor stated the evidence was disclosed during discovery, but defendant maintained it was
not contained in the documents his former attorney delivered to him. Defendant further stated
that after the trial, his former attorney gave five disks to his wife, but one of them would not
open. Defendant’s current attorney confirmed she received five disks from Denise and one could
-4- not be opened. The prosecutor asserted he was aware of the inoperable disk, but the problem was
apparently resolved because the disk contained the video that was shown during the trial.
¶ 13 The trial court denied defendant’s pro se “Motion for Evidence” and sentenced
him to 13 years in prison for aggravated criminal sexual abuse and a concurrent term of 364 days
for battery. On appeal, defendant argued (1) he did not knowingly waive his right to counsel
prior to the bench trial and (2) the court erred in sentencing him as a Class X offender for
aggravated criminal sexual abuse based on his prior convictions. The appellate court rejected
defendant’s arguments and affirmed the trial court’s judgment. People v. Robinson, 2021 IL App
(2d) 2180994-U.
¶ 14 On September 3, 2021, defendant filed a pro se postconviction petition, alleging a
claim of ineffective assistance of his pretrial counsel. Defendant alleged his pretrial counsel
(1) failed to investigate and prepare a defense, (2) committed a Brady violation (see Brady v.
Maryland, 373 U.S. 83 (1963)) by withholding or failing to turn over evidence to defendant prior
to trial, and (3) failed to investigate or inform defendant of the State’s intention to use evidence
of other crimes or bad acts. Defendant generally alleged his attorney was not prepared for trial
because he did not interview defendant’s wife, did not obtain the screenshot images of Lisa L.’s
phone, and could not have reviewed the contents of the inoperable disk. Defendant also alleged a
violation of his constitutional right to due process because the State (1) failed to inform him of
its intention to introduce evidence of other crimes or bad acts and (2) failed to disclose evidence
or “turn over adequate and operable evidence.”
¶ 15 On October 28, 2021, the trial court found defendant’s allegation of ineffective
assistance of counsel was not frivolous or patently without merit. Accordingly, the court
-5- advanced the petition to the second stage of postconviction proceedings and appointed counsel to
represent defendant.
¶ 16 Defendant’s counsel adopted the pro se postconviction petition without
amendment. The State then filed a motion to dismiss, arguing, in pertinent part, defendant
forfeited his postconviction claims of ineffective assistance of counsel because they could have
been raised on direct appeal. The State asserted no new information had been obtained following
defendant’s appeal and the claims presented in his postconviction petition were known prior to
his appeal. Defendant’s counsel filed a response, asserting defendant could not have raised his
postconviction claims on direct appeal because they “relied on facts that came to light months
after trial and well beyond the time period to file any post-trial motion.” Counsel argued
forfeiture did not apply because defendant’s ineffective assistance claims could not have been
raised on direct appeal.
¶ 17 On October 31, 2022, defendant’s appointed counsel was allowed to withdraw
and the public defender’s office was appointed to represent him. Defendant’s new counsel filed a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), asserting he was
adopting defendant’s pro se petition without amendment along with previous counsel’s response
to the State’s motion to dismiss. Following a hearing, the trial court granted the State’s motion to
dismiss defendant’s petition. The court stated the disputed evidence was “discovered after the
Bench Trial but prior to sentencing, and, in fact, there is a record of that being addressed by his
newly appointed Counsel for sentencing hearing.” The issues were raised at the sentencing
hearing, but defendant did not file a motion for a new trial following sentencing. The court
concluded, because defendant “failed to raise those issues on appeal that they were, in fact,
-6- [forfeited] and there’s no new information that’s been obtained since the Appellate Court ruled
on these issues.”
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 On appeal, defendant contends his postconviction counsel failed to comply with
Rule 651(c) because he did not amend the pro se petition to include a claim of ineffective
assistance of appellate counsel. Defendant maintains a routine amendment to include that claim
would have avoided dismissal of his petition based on forfeiture. Defendant concludes counsel
violated Rule 651(c) because he did not make an amendment necessary to adequately present
defendant’s contentions in his pro se petition.
¶ 21 A. Postconviction Proceedings and Right to Counsel
¶ 22 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020))
provides a procedural mechanism for criminal defendants to assert a substantial violation of their
federal or state constitutional rights occurred during trial or at sentencing. People v. Buffer, 2019
IL 122327, ¶ 12, 137 N.E.3d 763. The purpose of a postconviction proceeding is to allow inquiry
into constitutional issues that have not been, and could not have been, raised on direct appeal. Id.
Claims raised and decided on direct appeal are barred by the doctrine of res judicata, and claims
that could have been raised, but were not, are forfeited. People v. Pitsonbarger, 205 Ill. 2d 444,
456, 793 N.E.2d 609, 619 (2002).
¶ 23 The Act provides a three-stage process for adjudicating postconviction petitions.
People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615. At the first stage, the trial court reviews
the petition independently and determines whether it states the gist of a constitutional violation
or is frivolous or patently without merit. People v. Bailey, 2017 IL 121450, ¶ 18, 102 N.E.3d 114.
-7- If the petition is not summarily dismissed at the first stage, it is advanced to the second stage
where counsel is appointed for the defendant if he is indigent, and the State may file an answer
or a motion to dismiss the petition. People v. Johnson, 2018 IL 122227, ¶¶ 14-15, 123 N.E.3d
1083.
¶ 24 The right to counsel in postconviction proceedings is not constitutional in nature
but is a “matter of legislative grace.” People v. Pinkonsly, 207 Ill. 2d 555, 567, 802 N.E.2d 236,
244 (2003). Therefore, a postconviction defendant is only entitled to the level of assistance
guaranteed by the Act. People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d 725, 728 (1999). The
Act requires postconviction counsel to provide a “reasonable level of assistance.” Id. To that end,
Rule 651(c) sets forth specific duties postconviction counsel must fulfill. Id. Rule 651(c) requires
postconviction counsel to (1) consult with the defendant to ascertain his or her contentions,
(2) examine the record of the trial proceedings, and (3) make “any amendments to the petitions
filed pro se that are necessary for an adequate presentation of [defendant’s] contentions.” Ill. S.
Ct. R. 651(c) (eff. July 1, 2017).
¶ 25 “[T]he purpose of Rule 651(c) is to ensure that counsel shapes the [defendant’s]
claims into proper legal form and presents those claims to the court.” People v. Perkins, 229 Ill.
2d 34, 43-44, 890 N.E.2d 398, 403 (2007). Compliance with the rule is mandatory, but counsel
creates a rebuttable presumption of reasonable assistance by filing a Rule 651(c) certificate.
People v. Addison, 2023 IL 127119, ¶ 21, 217 N.E.3d 1011. The defendant bears the burden of
rebutting the presumption by showing postconviction counsel did not substantially comply with
the requirements of the rule. Id. The defendant may rebut the presumption by demonstrating
counsel did not make all necessary amendments to the pro se petition, including amendments
necessary to overcome procedural bars. Id. The trial court’s dismissal of a postconviction petition
-8- at the second stage of the proceedings is reviewed de novo. People v. Johnson, 2017 IL 120310,
¶ 14, 77 N.E.3d 615.
¶ 26 B. Compliance With Rule 651(c)
¶ 27 Here, defendant’s postconviction counsel filed a Rule 651(c) certificate stating he
“made any amendments to the petition filed pro se that [he] deem[ed] necessary for an adequate
presentation of [defendant’s] contentions.” Counsel’s certificate stated he was adopting
defendant’s pro se petition without amendment. Defendant argues the presumption of reasonable
assistance created by counsel’s Rule 651(c) certificate is rebutted because the record shows
counsel failed to amend the petition to address the forfeiture argument raised in the State’s
motion to dismiss the petition. We agree.
¶ 28 The supreme court’s recent decision in Addison is instructive. In that case, the
trial court advanced the defendant’s pro se postconviction petition to the second stage and
appointed counsel. Addison, 2023 IL 127119, ¶ 8. Postconviction counsel filed an amended
petition asserting five claims, but she did not include any claim of ineffective assistance of
appellate counsel. Id. Counsel also filed a Rule 651(c) certificate. Id. The State filed a motion to
dismiss the amended petition, arguing the defendant forfeited his postconviction claims because
they could have been raised on direct appeal and the defendant did not challenge his appellate
counsel’s decision not to raise them on direct appeal. Id. ¶ 9. The trial court granted the State’s
motion to dismiss. Id. ¶ 12.
¶ 29 The appellate court reversed and remanded for further proceedings, holding
postconviction counsel provided unreasonable assistance by failing to allege claims of ineffective
assistance of appellate counsel to overcome the forfeiture issue raised in the State’s motion to
dismiss. Id. ¶ 14. The appellate court relied on Turner, 187 Ill. 2d at 414, which held
-9- postconviction counsel’s failure to make a routine amendment to a petition to overcome a
procedural bar was unreasonable. (Internal quotation marks omitted.) Addison, 2023 IL 127119,
¶ 14.
¶ 30 In affirming, the supreme court observed, “When a petitioner is asserting claims
that could have been raised on direct appeal, he can avoid the procedural bar of forfeiture by
casting his claims as ineffective assistance of appellate counsel for failing to raise the issues on
direct appeal.” Id. ¶ 23 (citing Turner, 187 Ill. 2d at 413). In its motion to dismiss, the State
argued the defendant forfeited his claims because they could have been raised on direct appeal,
and postconviction counsel did not amend the petition in response to the State’s motion. Id. ¶ 25.
The supreme court asserted, “We cannot hold that postconviction counsel provided reasonable
assistance where she identified several claims that she believed were worth pursuing but did not
make the necessary amendments to put the claims in their proper form.” Id. The “court was clear
in Turner that the failure to allege ineffective assistance of appellate counsel when necessary to
overcome a forfeiture was a violation of Rule 651(c).” Id. ¶ 27.
¶ 31 Similarly, in this case, the trial court found defendant’s pro se petition stated the
gist of a constitutional claim and advanced the petition to the second stage. The State moved to
dismiss the petition on the basis that defendant forfeited his claims by failing to raise them on
direct appeal. The motion to dismiss specifically stated, “All of the issues presented by
Defendant were known by Defendant and not pursued during his appeal.” Although the State’s
claim was clearly raised in its motion to dismiss, postconviction counsel did not amend the
petition to include a claim of ineffective assistance of appellate counsel to avoid dismissal of the
petition based on forfeiture. The record shows counsel failed to make the necessary amendments
to put the postconviction claims in their proper form. As in Addison and Turner, the failure to
- 10 - allege ineffective assistance of appellate counsel to overcome forfeiture was a violation of Rule
651(c).
¶ 32 The State, nonetheless, contends postconviction counsel provided reasonable
assistance by arguing forfeiture did not apply in this case. According to the State, the ineffective
assistance of pretrial counsel claims were based on facts outside the record and could not have
been raised on direct appeal.
¶ 33 Initially, we note the State’s argument is directly contrary to its motion to dismiss,
where it maintained defendant forfeited his postconviction claims because “[a]ll of the issues
presented by Defendant were known by Defendant and not pursued during his appeal.” The
State’s argument on appeal is also contrary to the trial court’s decision granting the motion to
dismiss. The court asserted the issues were raised in the trial court and defendant forfeited them
by failing to raise them on direct appeal.
¶ 34 In any case, postconviction counsel was aware of the State’s motion to dismiss the
petition based on forfeiture and could have overcome that procedural bar with an amendment
alleging ineffective assistance of appellate counsel. The supreme court has long held counsel
provides unreasonable assistance by failing to make a routine amendment to a postconviction
petition that was necessary to overcome the procedural bar of forfeiture. See Turner, 187 Ill. 2d
at 412; see also Perkins, 229 Ill. 2d at 44 (stating an adequate presentation of postconviction
claims necessarily includes attempting to overcome procedural bars that may result in dismissal
of the petition). In this case, postconviction counsel could have easily amended the pro se
petition to avoid the State’s argument and dismissal of the petition. Counsel provided
unreasonable assistance in failing to make that necessary amendment.
- 11 - ¶ 35 The State also argues postconviction counsel is not required to make an
amendment to further a frivolous claim. The State contends defendant’s petition should be
dismissed because his claims lack merit and an amendment alleging appellate counsel was
ineffective for failing to further those claims would be frivolous.
¶ 36 The State’s argument is based on the merits of the claims raised in the pro se
postconviction petition. The trial court found the postconviction petition presented nonfrivolous
claims and advanced the petition to the second stage. Moreover, it is well settled that a reviewing
court will not address the merits of the claims alleged in a postconviction petition after finding
counsel did not fulfill the duties set forth in Rule 651(c). Addison, 2023 IL 127119, ¶ 33. The
case law “clearly establishes that 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). Id. ¶ 37. When postconviction counsel does not adequately
fulfill the duties outlined in Rule 651(c), a remand is required regardless of whether the claims
alleged in the petition have merit. Id. ¶ 42.
¶ 37 In this case, postconviction counsel did not comply with the requirements of Rule
651(c) when he failed to make a necessary amendment to defendant’s pro se petition to avoid
dismissal based on forfeiture. Defendant has rebutted the presumption of reasonable assistance
arising from counsel’s Rule 651(c) certificate. Therefore, we reverse the trial court’s dismissal of
defendant’s petition and remand for compliance with Rule 651(c) with new counsel appointed to
¶ 38 III. CONCLUSION
¶ 39 For the reasons stated, we reverse the trial court’s judgment and remand for
further proceedings.
- 12 - ¶ 40 Reversed and remanded.
- 13 -