2025 IL App (1st) 221248-U Nos. 1-22-1248, 1-22-1249 cons. Order filed January 10, 2025 Fifth 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 ) Cook County. Plaintiff-Appellee, ) ) Nos. 16 CR 2491 v. ) 16 CR 12178 ) JASMINE RODRIGUEZ, ) Honorable ) Thomas J. Hennelly, Defendant-Appellant. ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Navarro concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s second-stage dismissal of defendant’s postconviction petition over defendant’s contention that her postconviction counsel performed unreasonably by failing to amend her pro se petition or seek withdrawal.
¶2 In this consolidated appeal, defendant Jasmine Rodriguez appeals from the circuit court’s
second-stage dismissal of her petition for relief under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2020)). On appeal, she argues that her postconviction counsel provided Nos. 1-22-1248, 1-22-1249 cons.
unreasonable assistance by failing to either amend her pro se petition or move to withdraw. For
the following reasons, we affirm.
¶3 On November 29, 2017, following a conference pursuant to Illinois Supreme Court Rule
402(d) (eff. July 1, 2012), defendant pled guilty to threatening a public official (case number 16
CR 2491) and to aggravated battery of a peace officer (case number 16 CR 12178). The factual
basis for the threatening a public official charge indicated that, in January 2016, defendant had
called 911 and stated that she wanted several people murdered: a Cook County judge, two Boone
County judges, and two Boone County attorneys. The Cook County judge had previously placed
defendant on conditional discharge in another matter. The factual basis for the aggravated battery
charge indicated that, in February 2016, defendant was an inmate at the Cook County jail and
caused a “disturbance.” Two correctional officers responded, and defendant spit on one of them.
The incident was captured on video. The court sentenced defendant to concurrent terms of 36
months’ probation. Conditions of her probation included six months’ GPS monitoring with a
prohibition on entering Cook County during that time and having no contact with the Cook County
judge she had threatened.
¶4 On December 29, 2017, defendant, through counsel, filed a motion to withdraw her guilty
pleas. Defendant alleged that she “changed her mind” and wanted a trial. She asserted she had
been under duress when she pled guilty due to the length of her pretrial incarceration and an
unreasonable bond amount. She further claimed that being forced to meet with her probation
officer twice monthly and being prohibited from traveling to Cook County were unreasonable
probation conditions.
-2- Nos. 1-22-1248, 1-22-1249 cons.
¶5 At a hearing on January 11, 2018, defendant, who had previously been an attorney,
indicated she wished to proceed pro se on the motion to withdraw her guilty pleas. The court
informed defendant that if it granted her motion to withdraw her plea, she would be taken into
pretrial custody. After extensive discussion with the court, defendant withdrew her motion with
prejudice.
¶6 On October 20, 2020, defendant filed pro se a postconviction petition under the Act,
challenging both her threatening a public official and aggravated battery convictions. As to her
threatening a public official conviction, she stated that, in 2012, she had been convicted of resisting
arrest following a bench trial. In 2013, she filed with the Judicial Inquiry Board (JIB) a complaint
against the judge who presided over the trial, who she claimed had been “rude, loud and
inappropriate.” Defendant alleged that it was in retaliation for her complaint with the JIB that the
judge later claimed to be afraid of her. Defendant claimed that the statement for which she was
convicted, that she “wish[ed] or hope[d]” the judge and other officials “got killed,” was a “snide
comment” and not a “true threat.” Defendant asserted that none of the other officials felt threatened
by her statement.
¶7 Defendant claimed that plea counsel was ineffective for failing to acquire a copy of her
complaint to the JIB or interview the other public officials referenced in her statement, and for
insisting on an insanity defense, to which defendant did not agree. She also argued she had been
denied her right to a jury trial, and if a jury had reviewed the complaint she filed with the JIB and
heard testimony from the other public officials referenced in her statement, it would have acquitted
her.
-3- Nos. 1-22-1248, 1-22-1249 cons.
¶8 As to her aggravated battery conviction, defendant asserted she had not spit on a
correctional officer. Rather, she had complained about being sexually harassed by another inmate,
and the officer “slammed” her down. She had spit on the floor and the officer lied that the spit hit
her. Defendant claimed that plea counsel was ineffective for failing to interview other correctional
officers who witnessed the events and would corroborate her version, including an “Officer
Gallagher.”
¶9 Defendant attached to her petition a letter dated October 31, 2013, from the JIB indicating
that it had received her complaint, and a January 3, 2014, letter indicating it had reviewed her
allegations and was closing the matter. She claimed the JIB would not send her a copy of the
complaint she filed. She also attached an affidavit from Aaron Buscemi, who averred that he had
previously represented defendant as a public defender in Boone County and, sometime after his
representation ended, received an email from Boone County law enforcement alerting him that
defendant had “made a statement threatening [him].” He did not feel threatened and was not
contacted by Cook County law enforcement, the prosecution, or plea counsel in relation to the
instant charges against defendant. Defendant stated she would also acquire affidavits from two of
the other public officials.
¶ 10 On November 25, 2020, defendant’s probation relating to her threatening a public official
conviction was terminated. Defendant indicated she did not want her probation terminated, to
ensure the court heard her postconviction petition.
¶ 11 At a hearing on January 15, 2021, defendant requested the court vacate the order
terminating her probation, as she wanted her petition heard substantively rather than “procedurally
kicked out on a technical basis.” The court declined to vacate the termination order as it was
-4- Nos. 1-22-1248, 1-22-1249 cons.
beyond the 30-day deadline to vacate the order, but stated, “since you did file these back in the
summer before the probation was terminated, I am going to docket both of these.” The court
appointed defendant counsel.
¶ 12 On May 21, 2021, postconviction counsel indicated he had a transcript of defendant’s plea
hearing and had contacted her plea counsel. He was awaiting receipt of plea counsel’s files.
¶ 13 On January 7, 2022, postconviction counsel informed the court that he would like to file a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) “on both cases.” The
filed certificate lists only the case number for defendant’s threatening a public official conviction
(case number 16 CR 2491). The certificate indicates counsel consulted with defendant to ascertain
her contentions of a deprivation of her constitutional rights, examined the record, and made no
amendments to defendant’s pro se petition as none were necessary to adequately present
defendant’s contentions.
¶ 14 On February 10, 2022, the State filed a motion to dismiss defendant’s petition. The State
argued that defendant’s claims regarding the sufficiency of the evidence, ineffective assistance of
counsel, and her right to a jury trial were forfeited by her guilty pleas and her withdrawal of her
motion to withdraw her pleas. The State further argued that she failed to demonstrate that plea
counsel performed deficiently or that she was prejudiced by counsel’s performance. The State
noted that whether the alleged error was prejudicial depended largely on the likelihood she would
have succeeded at trial, and she failed to attach evidentiary support for her otherwise conclusory
allegations. Defendant’s counsel did not file a response to the State’s motion to dismiss.
¶ 15 On August 12, 2022, the court heard argument on the State’s motion. The State repeated
the arguments from its motion and noted that its arguments applied to both cases. Postconviction
-5- Nos. 1-22-1248, 1-22-1249 cons.
counsel stated he had consulted with defendant by Zoom, letter, and email to ascertain her
contentions, examined “the record of the proceedings” and “the common law record,” reviewed
plea counsel’s files, discussed the matter with plea counsel by phone, and researched case law
regarding defendant’s claims. Counsel noted he had not filed a supplemental or amended petition
and rested on defendant’s pro se petition. The court granted the State’s motion to dismiss.
Defendant appealed.
¶ 16 On appeal, defendant argues that postconviction counsel provided unreasonable assistance
and violated his duties under Rule 651(c) by failing to amend her pro se petition or, if counsel
concluded no amendment could overcome the State’s motion to dismiss, move to withdraw.
¶ 17 The Act provides a three-stage process by which persons under a criminal sentence may
assert that their convictions resulted from a substantial denial of their constitutional rights. People
v. Jean, 2024 IL App (1st) 220807, ¶ 28 (citing 725 ILCS 5/122-1 (West 2020)). At the first stage,
the circuit court must independently examine a pro se petition within 90 days of it being filed and
determine if it is frivolous or patently without merit. Id. The petition advances to the second stage
if the court fails to rule on it within 90 days or if the court determines it is not frivolous or patently
without merit. Id.
¶ 18 At the second stage, the State may move to dismiss the petition, and the court must
determine whether the petition and its accompanying documentation “make a substantial showing
of a constitutional violation.” Id. A substantial showing means the petition’s allegations are legally
sufficient, i.e., “if proven at an evidentiary hearing, would entitle [the] petitioner to relief.”
(Internal quotation marks omitted.) People v. Shaw, 2023 IL App (1st) 221358, ¶ 32.
-6- Nos. 1-22-1248, 1-22-1249 cons.
¶ 19 Defendants do not have a constitutional right to counsel in proceedings under the Act.
People v. Huff, 2024 IL 128492, ¶ 21. However, as “a matter of legislative of grace,” the Act
provides for the appointment of counsel beginning at the second stage. (Internal quotation marks
omitted.) Id. ¶¶ 19-21 (citing 725 ILCS 5/122-4 (West 2020)). Counsel in proceedings under the
Act must provide “reasonable assistance,” a “standard that is significantly lower than the one
mandated at trial by our state and federal constitutions.” (Internal quotation marks omitted.)
Id. ¶ 21.
¶ 20 To ensure that counsel provides reasonable assistance, Rule 651(c) requires counsel to
certify that he or she has (1) consulted with the defendant to ascertain the defendant’s contentions
of a deprivation of the defendant’s constitutional rights, (2) examined the record of the
proceedings, and (3) made any amendments to the pro se petition necessary to adequately present
the defendant’s contentions. Id. ¶ 22 (citing Ill. S. Ct. R. 651(c) (eff. July 1, 2017)). Rule 651(c)
serves 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 (2007).
¶ 21 The duty to make necessary amendments includes those required to overcome procedural
defects like forfeiture. See People v. Addison, 2023 IL 127119, ¶¶ 24-25 (counsel failed to comply
with Rule 651(c) by advancing claims that could have been raised on direct appeal without
asserting that appellate counsel was ineffective for failing to raise them). Counsel is further
obligated to attempt to obtain evidentiary support for the defendant’s claims, without which the
court must dismiss the claims. People v. Johnson, 154 Ill. 2d 227, 245 (1993). However, “[i]f the
defendant claims that evidence missing from his petition exists outside the record, postconviction
counsel has no duty to find that evidence.” People v. James, 2023 IL App (1st) 192232, ¶ 38.
-7- Nos. 1-22-1248, 1-22-1249 cons.
¶ 22 Where postconviction counsel files a certificate averring that counsel complied with the
duties of Rule 651(c), counsel is entitled to a rebuttable presumption that he provided reasonable
assistance. Jean, 2024 IL App (1st) 220807, ¶ 30. The defendant may overcome the presumption
by showing that counsel failed to “substantially comply with the strictures of the rule.” (Internal
quotation marks omitted.) Id. We review de novo a second stage dismissal of a postconviction
petition and counsel’s compliance with Rule 651(c). Id.
¶ 23 Here, postconviction counsel filed a Rule 651(c) certificate stating he had communicated
with defendant to ascertain her contentions, examined the record, and had not amended her pro se
petition as the pro se petition adequately set out defendant’s contentions of the deprivation of her
constitutional rights.1 Defendant does not contest that the certificate entitles postconviction
counsel to a presumption that he provided reasonable assistance. Rather, she argues that the
presumption is rebutted where the record shows counsel failed to comply with the third
requirement of Rule 651(c), that he make any amendments to her pro se petition necessary to
adequately present her claims.
¶ 24 Specifically, defendant argues that postconviction counsel performed unreasonably by
failing to obtain the complaint she submitted to the JIB and interview and obtain affidavits from
the other officials she threatened and the other correctional officers who witnessed the events
underlying her aggravated battery conviction. She contends that, given her postconviction claim
that her plea counsel was ineffective for failing to obtain the complaint or interview those
witnesses, postconviction counsel needed to obtain the JIB complaint and affidavits from the
1 We note that postconviction counsel’s Rule 651(c) certificate listed only the case number relating to the threatening a public official conviction (number 16 CR 2491). Defendant does not assert on appeal that the certificate did not apply to both underlying cases (threatening a public official and aggravated battery).
-8- Nos. 1-22-1248, 1-22-1249 cons.
witnesses as supporting evidence to prevent her claims from being conclusory and unsupported,
as the State claimed in its motion to dismiss.
¶ 25 We find that defendant has not rebutted the presumption that counsel substantially
complied with Rule 651(c). “[N]ot every petition can be amended to set forth a substantial
constitutional claim.” People v. Turner, 2023 IL App (1st) 191503, ¶ 37. Counsel is not required
to make any amendments that would further a “frivolous or meritless claim.” Id. Where counsel
has not amended a petition, we must presume “that there were none to be made.” Huff, 2024 IL
128492, ¶ 24. Similarly, where counsel has not provided supporting evidence and there is no
“affirmative evidence in the record to establish that postconviction counsel did not seek out and
examine all available evidence relevant to [a] claim,” we must presume that counsel attempted to
obtain the supporting evidence but was unsuccessful. People v. Wallace, 2016 IL App (1st)
142758, ¶ 27.
¶ 26 Here, in addition to filing a Rule 651(c) certificate, counsel stated at the hearing on the
State’s motion to dismiss defendant’s petition that he had communicated with defendant regarding
her contentions, reviewed the record, reviewed plea counsel’s files, discussed the matter with plea
counsel by phone, and researched defendant’s claims. Although the record does not affirmatively
indicate that postconviction counsel attempted to obtain defendant’s complaint to the JIB or
contact the witnesses defendant referenced, “[t]here is nothing in Rule 651(c) that suggests the
certificate is intended to be a comprehensive recounting of all of postconviction counsel’s efforts.”
People v. Jones, 2011 IL App (1st) 092529, ¶ 24.
¶ 27 Rather, counsel’s Rule 651(c) certificate entitled him to the presumption that he made all
reasonable efforts to obtain defendant’s JIB complaint and interview the other witnesses, and either
-9- Nos. 1-22-1248, 1-22-1249 cons.
the evidence did not support her claims or it was impossible for him to obtain it. See Wallace, 2016
IL App (1st) 142758, ¶ 27 (rejecting the contention that counsel did not examine certain records
where counsel’s certificate did not specify that counsel did so because that amounted to a “reversal
of the presumption and corresponding burden”); see also People v. Bass, 2018 IL App (1st)
152650, ¶ 14 (rejecting presumption that counsel’s failure to amend facially deficient petition
resulted from deficiency in counsel’s performance “rather than an inability to substantiate [the
defendant’s] claims”). Moreover, postconviction counsel had no duty to discover evidence outside
the record, if that evidence was even available to be discovered. See James, 2023 IL App (1st)
192232, ¶ 38 (postconviction counsel had no obligation to amend the defendant’s postconviction
petition with photographs outside the record).
¶ 28 In this case, defendant has not demonstrated that counsel’s decision not to amend the pro
se petition rebuts the presumption of reasonable assistance created by the filing of counsel’s Rule
651(c) certificate. We therefore decline to reverse the court’s dismissal of defendant’s
postconviction petition based on her contention that postconviction counsel provided unreasonable
assistance under Rule 651(c).
¶ 29 Defendant next argues that, if counsel determined that the petition lacked merit and no
amendment could be made to defendant’s petition that would overcome the State’s motion to
dismiss, counsel was required to file a motion to withdraw explaining the basis for that conclusion.
Defendant contends that, by failing to do so, counsel deprived her of the opportunity to defend the
petition herself or retain private counsel. In her opening brief, defendant notes that the issue of
whether postconviction counsel is required to withdraw if counsel believes that a petition cannot
be amended to state a meritorious claim was pending before our supreme court in People v. Huff,
- 10 - Nos. 1-22-1248, 1-22-1249 cons.
2022 IL App (1st) 201278-U, pet. for leave to appeal allowed, No. 128492 (Sep. 28, 2022). During
the pendency of this appeal, as both parties note, our supreme court issued its decision in Huff,
2024 IL 128492. However, the parties dispute whether Huff is dispositive.
¶ 30 In Huff, the defendant was convicted of murder and, on direct appeal, challenged his
sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). Huff, 2024 IL 128492, ¶¶ 3, 6. We
affirmed. Id. ¶ 6. Defendant raised an Apprendi challenge again in a petition for relief from
judgment, which was found to be untimely and barred by res judicata. Id. ¶ 7.
¶ 31 The defendant then filed a pro se postconviction petition under the Act repeating the
Apprendi claim and arguing it was not barred by res judicata as the law had changed, and that his
petition was not untimely because his sentence was void, which meant that a challenge could be
raised at any time. Id. ¶ 8. The circuit court automatically advanced the petition to the second stage
without considering whether the petition was frivolous or without merit. Id. ¶ 9. Appointed counsel
filed a Rule 651(c) certificate, did not amend the petition, and made no argument at the hearing on
the State’s motion to dismiss. Id. The circuit court dismissed the petition based on res judicata. Id.
On appeal, the defendant argued that counsel performed unreasonably by not amending the petition
or, if counsel believed the petition could not be cured by an amendment, moving to withdraw. Id.
¶ 10. We affirmed, finding that although counsel could have withdrawn, counsel was not required
to withdraw, and counsel’s standing on the pro se petition when no amendment was available did
not rebut the presumption of reasonable assistance. Id.
¶ 32 On appeal to the supreme court, the defendant argued, as defendant argues here, that the
pro se petition was frivolous and postconviction counsel was therefore obligated to amend the
petition or seek withdrawal. Id. ¶ 14. The defendant contended that counsel’s decision to rest on
- 11 - Nos. 1-22-1248, 1-22-1249 cons.
the frivolous petition rebutted the presumption that counsel had provided reasonable assistance.
Id.
¶ 33 The supreme court did not address the unsettled issue of whether postconviction counsel
may permissibly stand on a pro se petition that counsel believes is frivolous or must move to
withdraw. Id. ¶¶ 11, 16, 30. Rather, the court determined that postconviction counsel had no duty
to withdraw where counsel was appointed without a first-stage ruling on the pro se petition, the
pro se petition presents a weak claim that is nevertheless in its best possible legal form, and the
record provides no indication that counsel actually “knew, or even believed, that [the defendant’s]
claim was frivolous or patently without merit.” Id. ¶ 30. The court distinguished situations where
postconviction counsel rests on a petition from those where counsel confesses to the court that the
petition lacks merit. Id. ¶ 31. The court noted that the defendant failed to identify any amendments
that were necessary to present his claim and there was no suggestion in the record that counsel
knew or believed that the petition was frivolous, “rather than merely weak.” Id. ¶ 34. The court
therefore concluded that the defendant did not rebut the presumption that counsel provided
reasonable assistance, and counsel was not obligated to withdraw. Id.
¶ 34 Here, as in Huff, defendant’s petition was advanced to the second stage without a ruling as
to whether it was frivolous or patently without merit. Further, as noted, postconviction counsel
filed a Rule 651(c) certificate and defendant acknowledges counsel is entitled to a presumption of
reasonable assistance. Also, as in Huff, defendant points to nothing in the record indicating that
counsel knew defendant’s claims to be frivolous or patently without merit. Counsel did not
concede to the State’s motion to dismiss or confess that defendant’s petition was meritless. Rather,
at the hearing on the State’s motion to dismiss, counsel elaborated on his efforts by reciting that
- 12 - Nos. 1-22-1248, 1-22-1249 cons.
he communicated with defendant and her plea attorney, reviewed that attorney’s files and the
record, and conducted research of the contentions advanced in the petition. Defendant therefore
has not shown that counsel was obligated to seek withdrawal. See id. ¶¶ 30, 34. Accordingly, we
agree with the State that Huff controls, and find that postconviction counsel did not provide
unreasonable assistance by choosing to stand on the pro se petition.
¶ 35 Defendant attempts to distinguish Huff. She notes that, there, the defendant argued in his
pro se petition that the law underlying his Apprendi claim had changed and his claim was therefore
not procedurally barred by res judicata. Id. ¶ 8. She contends that assertion by the defendant
provided a basis for postconviction counsel to believe the defendant’s claim was weak but not
frivolous. See id. ¶¶ 8, 30. Defendant asserts that, in contrast, a minimum inquiry into the legal
merit of her claims by postconviction counsel would have shown that the claims lacked merit, and
that the record provides no basis to conclude that postconviction counsel thought her claims were
weak but not frivolous.
¶ 36 However, the controlling question under Huff is whether the record shows that counsel
knew the claims were frivolous or patently without merit. See id. ¶¶ 29-30. Further, counsel’s Rule
651(c) certificate created a presumption of reasonable assistance that it is defendant’s burden to
overcome. Jean, 2024 IL App (1st) 220807, ¶ 30. “In Huff, our supreme court made clear that
where postconviction counsel files a Rule 651(c) certificate creating a presumption of reasonable
assistance, the burden falls on the petitioner to show that the record indicates that counsel knew
- 13 - Nos. 1-22-1248, 1-22-1249 cons.
that the petition was frivolous, and not vice versa.” People v. Bradley, 2024 IL App (1st) 230809-
U, ¶ 33. 2 Defendant has not made that showing here.
¶ 37 In sum, as in Huff, defendant’s petition advanced to the second stage without the court’s
review on the merits of the petition. Postconviction counsel filed a Rule 651(c) certificate, creating
a presumption that no required amendments were available. Huff, 2024 IL 128492, ¶¶ 24, 34.
Defendant has not rebutted that presumption by showing that counsel performed unreasonably by
failing to attach her complaint to the JIB or affidavits from witnesses. Further, there is no
affirmative indication in the record that postconviction counsel knew the pro se claims were
frivolous or patently without merit. Absent that showing, we cannot agree that postconviction
counsel was required to withdraw. Id. ¶¶ 29-30, 34. Accordingly, we find that defendant has not
rebutted the presumption that postconviction counsel provided reasonable assistance, and affirm
the court’s judgment dismissing defendant’s postconviction petition.
¶ 38 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 39 Affirmed.
2 Unpublished orders issued under Rule 23(b) on or after January 1, 2021, may be cited for persuasive purposes. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
- 14 -