People v. Rouse

2020 IL App (1st) 170491, 171 N.E.3d 584, 446 Ill. Dec. 767

• Court: Appellate Court of Illinois
• Decided: November 4, 2020
• Docket: 1-17-0491
• Status: Published

Opinion

2020 IL App (1st) 170491 Opinion filed November 4, 2020 Second Division ______________________________________________________________________________

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. ) No. 10 CR 17598 ) WILLIAM A. ROUSE II, ) Honorable ) James N. Karahalios, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 Defendant William A. Rouse II appeals the trial court’s order granting the State’s motion

to dismiss his pro se postconviction petition for relief filed under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2014)). He contends that (1) he made a substantial showing

that his trial counsel was ineffective for misadvising him on the minimum sentence for a lesser-

included offense, causing him to reject a jury instruction on the lesser-included offense, and (2) he

did not knowingly waive his right to postconviction counsel. For the following reasons, we affirm. 1-17-0491

¶2 Following a 2011 jury trial, defendant was convicted of three counts of aggravated criminal

sexual assault (ACSA) and sentenced to three consecutive terms of 6 years’ imprisonment, for a

total sentence of 18 years. We set forth the facts in defendant’s direct appeal (People v. Rouse,

2014 IL App (1st) 111302-U), and we recite them here to the extent necessary to our disposition.

¶3 Defendant was charged with three counts of ACSA for using force or threat of force to

penetrate the victim, G.K., vaginally, anally, and orally and acting in such a manner as to threaten

or endanger her life. He was represented by private counsel, James P. Casement and Gregory Reed.

At trial, G.K. testified that she worked with defendant’s wife, Kelly Rouse, and socialized at

defendant’s house in the past. On September 10, 2010, G.K. was at defendant’s house after work

and planned to spend the night. G.K. had a glass of wine before dinner and another with her meal.

She acknowledged that she had been prescribed Adderall, Zoloft, trazodone, and clonazepam and

knew she was not supposed to drink while on her medication. Nevertheless, G.K. took her Adderall

dosage at defendant’s house. Defendant’s friend Joseph Perez was also there for part of the time.

¶4 After Kelly went to bed and Perez left, defendant and G.K. watched television on the couch.

Defendant grabbed G.K.’s hair, pushed her head down, and rubbed his penis on her face.

Defendant’s penis went into G.K.’s mouth multiple times, causing her to gag and choke. Although

G.K. attempted to get away from defendant, he bent her over the couch with her face pushed into

the cushions. G.K. stopped struggling after defendant threatened to “break [her] f*** neck.” He

pulled G.K.’s pants down and touched the tip of his penis to her vagina and anus. Defendant

inserted his penis into her vagina after she covered her anus with her hands.

¶5 G.K. was able to escape after approximately 20 minutes and fled into the garage where she

grabbed a pipe. She ran to a busy street and fell to the ground where a man, Anthony DiCaro,

approached her. After she told DiCaro what happened, he called the police. G.K. acknowledged

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she was “freaked out” when paramedics arrived and had to be strapped down. She remained

frightened because she believed she could hear defendant’s voice. Upon presenting at the hospital,

G.K. told a nurse about the attack by defendant. She did not remember telling any emergency

personnel that she was “unsure” about whether defendant had penetrated her.

¶6 DiCaro corroborated G.K.’s version of events. He observed her on the sidewalk at

approximately 5 a.m. on the corner of Devon Avenue and Arlington Heights Road when he was

driving home from work. G.K.’s shirt was ripped, her pants were unzipped and unbuttoned, and

she was not wearing socks or shoes or carrying a purse. G.K. was crying and holding a metal pipe.

She told him that her friend’s husband attacked her while they watched television and her friend

was asleep. G.K. did not state she had been partying or drinking, and she did not appear to have

been drinking or doing drugs. DiCaro did not notice any odor of alcohol. He told police what G.K.

told him about the attack.

¶7 Dr. John Ortinau treated G.K. in the emergency room on September 11, 2010. She was

visibly upset and reported that she had been sexually assaulted. G.K. relayed that a man forced his

penis into her mouth and attempted to penetrate her vagina and anus. The man pushed her face

into couch cushions, and her vagina and neck were sore. G.K. was certain that the man forced his

penis into her mouth; however, she was unsure whether the man penetrated her vagina and anus

due to how quickly the attack had taken place.

¶8 Dr. Ortinau observed bruising on G.K.’s upper arms and forearms and redness on her neck

and knees. She did not have visible trauma to her vagina or anus, which was not uncommon in

sexual assault cases where the victim was not a virgin and where no foreign objects were used for

penetration. G.K. reported she was on various prescription drugs, but Dr. Ortinau did not order

toxicology tests. He did not note that G.K. appeared intoxicated, which was normal practice if a

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patient appeared impaired. Dr. Ortinau did not notice anything unusual about G.K.’s pupils. Her

pulse rate was elevated, which was not unusual in a patient who had been sexually assaulted. He

acknowledged that an elevated heart rate would also be expected in a patient on

methamphetamines.

¶9 Elk Grove Village police officer John Suarez testified that he responded to G.K.’s and

DiCaro’s location on September 11, 2010. G.K. was “crying, hyperventilating, and repeating that

she was attacked.” Her hair was messy, and her clothes were disheveled. Suarez then went to

defendant’s residence, where he met Kelly and defendant, who was sitting on a couch in the living

room wearing jeans but no shoes, socks, or shirt. Defendant acknowledged that G.K. had been

there and that they had been drinking alcohol, but he did not know that G.K. had left the house.

Defendant was “perfectly willing to cooperate” with the police, but Suarez did not believe that

defendant was being truthful.

¶ 10 Suarez completed a police report in this case but did not include his observations that G.K.

was crying and hysterical or that her hair and clothing appeared to be in disarray. Suarez included

in the report that G.K. admitted to drinking alcohol, her eyes were glassy, and she smelled of

alcohol; however, he did not include defendant’s admission that he had been drinking also.

¶ 11 Elk Grove police officer Brian Vivona testified that he photographed G.K. while she was

in the hospital. Vivona then went to defendant’s residence to take photographs of the crime scene.

Kelly and defendant’s mother-in-law were present at that time. Vivona denied manipulating

anything before taking photographs.

¶ 12 Kelly Rouse testified for the defense that G.K. was intoxicated every time they socialized

outside of work. They both snorted Adderall on several occasions, including the night in question,

when they each snorted four capsules. They also were drinking wine that night.

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¶ 13 Dr. Alan Jaffe, a licensed clinical psychologist who did not treat G.K., testified that a

person who ingested 120 milligrams or more of Adderall would have an increased heart rate. Those

who ingest Adderall while drinking alcohol would likely experience disorientation and have

difficulty engaging in rational thinking and could experience auditory, visual, and olfactory

hallucinations. He acknowledged he did not know whether G.K. was on Adderall at the time of

the attack and conceded her medical records gave no indication that she was delusional or

hallucinating when she presented at the hospital. He viewed photographs of G.K. and stated her

pupils appeared to be dilated, which is expected in a person who has ingested methamphetamine.

¶ 14 Perez testified that on September 10, 2010, he observed Kelly and G.K. snorting Adderall

and drinking what he estimated was an entire box of wine while he was present. He acknowledged

that he was also snorting Adderall and drinking vodka but denied being intoxicated. Perez left

defendant’s residence around 1 a.m. on September 11, 2010, and received a call from G.K. at some

point after. He believed G.K. was intoxicated because she was slurring her words and could not

hold a coherent conversation.

¶ 15 Perez received a call to report to the Elk Grove Village police station at around 6 a.m. He

told Detective George Winkler that he saw G.K. drink wine and believed she was intoxicated. He

did not mention that Kelly and G.K. snorted Adderall because the Rouses had a baby and he did

not want to cause an investigation by the Illinois Department of Children and Family Services.

¶ 16 Officer James Chmelik spoke to G.K. on September 11, 2010, at the intersection of Devon

Avenue and Arlington Heights Road. G.K. was crying and barefoot, and her hair was disheveled.

He noticed that she smelled of alcohol and appeared intoxicated. G.K. reported that she had

consumed four to six drinks at Kelly’s house and that defendant attacked her as they sat on a couch.

She explained that defendant rubbed his arm and shoulder against her and then forced her head

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towards his groin and inserted his penis into her mouth. Defendant pushed her against the couch,

pulled her pants down, and attempted to insert his penis into her anus. He was unable to do so and

then inserted his penis into her vagina. G.K. did not mention using drugs that evening.

¶ 17 Registered nurse Lisa Romanski treated G.K. when she arrived in the emergency room.

G.K. was alert and able to communicate but was tearful and spoke in a low voice. She did not seem

to be delusional or experiencing hallucinations, but Romanski noted that her pupils appeared to be

dilated and that her hair was tangled. Romanski observed redness on G.K.’s knees and a bruise on

her left arm. G.K. reported defendant forced his penis into her mouth, anus, and vagina. Romanski

thereafter drew blood from G.K. and completed a rape kit.

¶ 18 Detective George Winkler interviewed G.K. in the emergency room. She reported that she

had consumed four to six glasses of wine the previous night. G.K., Kelly, and Perez did not

mention using drugs during their various interviews. Winkler confirmed that he interviewed

defendant prior to his arrest. Defendant was approximately 6 feet tall and weighed approximately

205 to 210 pounds. Winkler did not observe any marks or signs of bruising on defendant’s body

at that time.

¶ 19 Elk Grove Village paramedics John Lodewyk and Matthew Bonilla attended to G.K. on

September 11, 2010. Lodewyk did not remember whether G.K. had appeared intoxicated at the

time, but he remembered that she was not wearing shoes. Bonilla remembered that G.K. smelled

of alcohol and was difficult to get into the ambulance because she was upset and afraid.

¶ 20 Jolie McGrath, who worked with G.K., testified that she socialized with G.K. outside of

work and G.K. would “get pretty drunk.” McGrath had witnessed G.K. hungover 10 to 15 times

over the course of two years. She also observed G.K. come to work intoxicated twice.

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¶ 21 The parties stipulated that the vaginal swabs taken from G.K. during the rape kit did not

contain a sufficient amount of DNA for analysis.

¶ 22 During the jury instruction conference, the following colloquy took place:

“THE COURT: All right. Gentlemen, in reviewing these and thinking about the

case, which is my job, from the evidence it could be argued that the acts of the defendant

were attempted and not completed. So I will offer the attempt, actual attempt of these acts

as a lesser included. What would you like the court to do?

[DEFENSE COUNSEL CASEMENT]: Your Honor, at this time we would not

want the lesser included in the jury instructions.

THE COURT: So you’re asking the court not to give the attempt instruction?

[CASEMENT]: That is correct.

THE COURT: As to each of these acts?

[CASEMENT]: As to each of these acts.

THE COURT: Is that correct, [defense counsel] Reed?

[DEFENSE COUNSEL REED]: Yes, your Honor.

THE COURT: Is this based on your strategy in the case?

THE COURT: You have to answer.

[REED]: Yes, your Honor.

THE COURT: [Defendant], do you agree with that strategy of your lawyers?

[DEFENDANT]: I do, your Honor.”

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¶ 23 The jury then found defendant guilty of all three counts of ACSA. The court sentenced

defendant to 3 consecutive sentences of 6 years, for a total sentence of 18 years’ imprisonment.

¶ 24 On direct appeal, we affirmed defendant’s convictions, finding the evidence sufficient to

prove him guilty beyond a reasonable doubt of ACSA and finding he was not denied effective

assistance of counsel at trial. Rouse, 2014 IL App (1st) 111302-U, ¶¶ 38, 40-50.

¶ 25 On March 6, 2015, defendant filed a pro se petition for relief under the Act raising multiple

claims. Relevant here, defendant argued he received ineffective assistance from trial counsel when

they provided erroneous advice regarding the sentencing range of the lesser-included offense of

attempted ACSA. Defendant argued that his trial attorneys informed him that the sentences for

three counts of attempted ACSA would run consecutively and, therefore, defendant would face a

sentencing range of 12 to 45 years if convicted of three counts of attempted ACSA. Defendant

stated counsel advised him not to accept a jury instruction on attempted ACSA because the State

“had not even come close to proving their case beyond a reasonable doubt, and that including a

lesser included would possibly give the jury a reason to come up with a compromised verdict.” He

claimed his attorneys never discussed with him the possibility that the three sentences for attempt

would run concurrently, for a sentencing range of 4 to 15 years. Ultimately, defendant decided not

to instruct the jury on attempted ASCA. He acknowledged that the court informed him it was his

choice whether to include the attempt instructions. Defendant contended his decision to reject the

attempt instruction was based on counsel’s “grossly inaccurate advice,” which constituted

deficient performance. He claimed he was prejudiced because, had he been correctly informed of

the 4- to 15-year sentencing range, he would have opted to have the jury instructed on attempted

ACSA.

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¶ 26 In support of his petition, defendant attached, in relevant part, affidavits from his trial

attorneys Casement and Reed and his own affidavit.

¶ 27 Casement averred to the following. During jury instructions, the trial court stated “attempt

criminal sexual assault was appropriate for this case.” Casement and Reed advised defendant that

the sentencing range for each attempted CSA would be 4 to 15 years but would be served

consecutively, for a total sentence of 12 to 45 years, if convicted of all three counts. “The decision

to accept a lesser included was [defendant’s],” but Casement advised defendant against instructing

the jury on attempted ACSA because he believed the State did not meet its burden of proof and

“including a lesser included would possibly give the jury a reason to come up with a compromise

verdict.” Defendant approved that strategy, reasoning there was little difference between a 12- or

18-year minimum sentence. There was no discussion of the sentences for the attempt counts

running concurrently. Reed’s affidavit was nearly verbatim to Casement’s.

¶ 28 In his own affidavit, defendant averred Reed and Casement informed him he would likely

face a sentence in the “lower end of the sentencing range” due to his lack of criminal history. Prior

to the jury instruction conference, his attorneys never discussed with him the possibility that he

would receive a sentence of less than 18 years. Counsel advised him that each of the three charges

of ACSA was a Class X felony with a range of 6 to 30 years’ imprisonment that he would serve

consecutively for a total of 18 to 90 years, if convicted. During the jury instruction conference, the

court informed defendant that “attempted criminal sexual assault was appropriate for this case.”

Counsel told defendant that each count of attempted ACSA carried a 4- to 15-year sentencing

range, which would also run consecutively for a sentencing range of 12 to 45 years if convicted on

all three counts. Counsel advised against instructing the jury on attempt because the State had not

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proved their case beyond a reasonable doubt and instructing the jury on a lesser offense would

encourage the jury to reach a compromised verdict.

¶ 29 Defendant further averred that he “approved” counsel’s strategy and made the decision not

to instruct the jury on attempted ACSA, reasoning

“There was no difference between minimum sentences of 12 or 18 years, life as I knew it

would be over. My career would be lost to me, I would miss my children grow up, and my

wife would not stick around if sentenced to such a lengthy amount of time.”

There was no discussion that the sentences on the attempted ACSA counts would run concurrently.

Had he been properly advised that the attempt offenses would run concurrently for a sentencing

range of 4 to 15 years, “given the significant disparity in sentencing ranges,” defendant would have

“accepted the terms and instructed defense counsel to submit those jury instructions.”

¶ 30 On June 19, 2015, the court docketed the petition for second-stage proceedings, finding

“[i]t appears the defendant does allege matters of constitutional import.” The court appointed the

Office of the Public Defender to represent defendant.

¶ 31 On February 26, 2016, a public defender not representing defendant appeared and informed

the court that postconviction counsel was “still investigating the claims that are in the post

conviction.”

¶ 32 On May 13, 2016, postconviction counsel filed a certificate pursuant to Illinois Supreme

Court Rule 651(c) (eff. Feb. 6, 2013). In her certificate, postconviction counsel stated that she

(1) consulted with defendant by mail to ascertain his contentions of deprivations of his

constitutional rights; (2) examined the petition and consulted with defendant about claims raised

in the petition and issues he raised in correspondences; (3) examined Casement’s and Reed’s trial

file, including police reports, forensic reports, photographs entered into evidence at trial, and

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G.K.’s hospital records; (4) obtained and examined the report of proceedings and common-law

records for defendant’s direct appeal as well as the file maintained by the clerk of the circuit court;

(5) examined crime scene photographs but did not view supplemental volumes of photographs or

photographs of G.K.’s injuries entered into evidence in the appellate record because defendant’s

argument on direct appeal that the evidence was insufficient to convict him was rejected;

(6) examined this court’s order filed pursuant to Illinois Supreme Court Rule 23(b) (eff. July 1,

2011) on defendant’s direct appeal (Rouse, 2014 IL App (1st) 111302-U), the State’s motion for

leave to supplement the record on appeal, and the briefs submitted on direct appeal; (7) examined

defendant’s pro se petition and concluded it adequately presented his claims of deprivations of

constitutional rights and “there is nothing that can be added by and [sic] amended or a supplemental

petition”; and (8) examined “the record of proceedings at the jury trial, and have not made any

amendments to the petitions [sic] filed pro se because his pro se petition made an adequate

presentation of [defendant’s] claims.”

¶ 33 On August 26, 2016, the State filed a motion to dismiss defendant’s petition.

¶ 34 On September 27, 2016, defendant sent a pro se letter to the trial court, requesting to

“dismiss court appointed counsel and proceed pro se.” In his letter, defendant detailed that he

decided to represent himself following “correspondence” between himself and postconviction

counsel. He stated that, in a letter dated August 31, 2015, postconviction counsel stated, “From

my experience, Judge Fecarotta does not allow court appointed counsel to withdraw even if they

argue that the pro se petition lacks an arguable basis in law and fact. I disagree since I do believe

that parties have a constitutional right to represent themselves.” Defendant’s letter further detailed

that in a letter dated May 11, 2016, postconviction counsel stated,

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“I will not amend or supplement your pro se petition. A post-conviction attorney

can stand on the petition, or withdraw as counsel if the pleadings are frivolous. *** The

problem is that the jury found you guilty of 3 counts of the class x [sic] [ACSA];

consequently, you cannot establish any prejudice since there was sufficient evidence for

the jury to find you guilty of the class x [sic] felony. *** You have the option to represent

yourself if you disagree with my analysis.”

¶ 35 In his letter, defendant further stated that “[t]he decision by [postconviction counsel] not

to amend the petition is one that appears to be consistent with her beliefs as well as the law.”

Defendant, however, was concerned that she “reached this decision prior to receiving the State’s

motion to dismiss.” Defendant complained that postconviction counsel failed to confer with him

“to see if it was possible to ‘shore up’ the argument for prejudice.” Finally, he quoted an August

26, 2016, letter from postconviction counsel, which he alleged stated, “there is only a remote

possibility that the current sitting judge will grant us an evidentiary hearing.” Defendant believed

that statement was “much more optimistic” than her earlier statements that he could not show

prejudice. Because there was a possibility of an evidentiary hearing, defendant stated that his

petition was not frivolous. Defendant concluded that he disagreed with postconviction counsel’s

assessment of his case but stated, “as a lay person, [he] [was] in way over his head and ha[d]

concerns about procedural defaults as well as how this decision could affect his ability to appeal

an unfavorable decision.” Defendant “reluctantly” requested that the court “relieve” court-

appointed counsel and allow him leave to represent himself, “as he feels he has no other choice.”

¶ 36 On November 18, 2016, postconviction counsel appeared before the court. She noted that

she “believe[d] [she] discharged 651(c) duties” and did not act unreasonably.

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¶ 37 On February 17, 2017, the court held a hearing on defendant’s “petition to proceed pro se.”

The court first inquired whether postconviction counsel had prepared a response to the State’s

motion to dismiss. Postconviction counsel stated, “No, your Honor. I elected not to prepare a

written response and would be prepared to—I was prepared to answer orally, and so, that was a

legitimate constitutionally permissible strategy.” The following then occurred on the record:

“THE COURT: Now, [defendant], if I allow you to fire your lawyer and proceed

to represent yourself, the next step in this is that you would have to file a response to the

State’s motion to dismiss the petition.

So if you want to undertake that, we’ll proceed with a hearing on your being

allowed to do that. If you want the public defender to continue to represent you insofar as

at least handling this motion to dismiss, we can do that as well. Do you want to talk to the

public defender for a moment so that you fully grasp the situation?

[DEFENDANT]: I would appreciate that, your Honor.”

¶ 38 The court passed the case, and defendant spoke off the record with postconviction counsel.

When the court recalled the case, defendant told the court, “At this time I wish to proceed pro se,

your Honor.” He also informed the court that he had prepared a response to the State’s motion to

dismiss and was ready to both file his response and argue it. Prior to addressing the motion to

dismiss, the court admonished defendant:

“THE COURT: [T]he Illinois Supreme Court has passed a rule that is required to

be read to you before you proceed to represent yourself, okay, and it’s called Supreme

Court Rule 401. Now, I’m going to read it to you slowly. If there’s anything you don’t

understand, you’ll let me know and I’ll explain it; okay?

[DEFENDANT]: Yes.

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THE COURT: All right. Any waiver of counsel shall be in open court. We’re in

open court. The court shall not permit a waiver of counsel by a person accused of an offense

punishable by imprisonment—you are imprisoned—without first, by addressing the

defendant personally—and I’m talking to you personally—in open court and informing

him of and determining that he understands the following:

Number 1, which is the nature of the charge. In this case, you are already convicted

of aggravated criminal sexual assault, and you are serving a sentence. The nature of the

matter which is pending is whether or not you can get relief from that conviction and

sentence during these proceedings, and that’s why it’s called a postconviction petition. So

do you understand that?

[DEFENDANT]: Yes, your Honor.

THE COURT: All right. And you understand that if you’re not successful in getting

relief, then the sentence—the conviction and sentence that you already have will remain as

it is. Do you understand that?

THE COURT: All right. What is it that you’re sentenced to, how much?

[DEFENDANT]: 18 years at 85 percent, [6] years per count.

THE COURT: Okay. So, then you understand the amount of time that’s at stake

here in this proceeding?

THE COURT: Okay. Next, that you have a right to have counsel, and if you are

indigent—meaning you don’t have any money to afford counsel—that counsel will be

appointed for you by the Court. And that’s already been determined, because you’re in

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prison you don’t have any money. And counsel, the Public Defender’s Office, has already

been appointed for you.

So it’s important for you to understand that you have a free lawyer in the Public

Defender, and if you want, that lawyer will continue to represent you for free if that’s what

you want. Do you understand that?

THE COURT: All right. Now, the part that is not in *** the rule which I usually

add is this: As you already know, these are legal proceedings that deal with rules of law

that have certain requirements and technicalities. You understand that?

THE COURT: All right. You’re going to be facing—instead of your lawyer, you’re

going to be facing an opponent, the State’s Attorney’s Office, who has lawyers that are

skilled in postconviction proceedings just like this. And, obviously—and I know that you

know this, so I’m not talking down to you but I want to make sure that the record is clear

and that you understand everything completely.

These lawyers have gone to law school, they’ve received an education, they’ve

passed an examination, a bar examination, in order to practice, which shows, again,

proficiency, and then they’ve had years and years of experience in handling these kinds of

cases. So the bottom line is that you’re going to be going up against someone who is skilled.

You’re not going to be going up against a fellow inmate who is also not a lawyer. You’re

not a lawyer; you’re going to be facing a lawyer. That, to me, is not a wise idea. But it’s

your decision; it’s not mine. I can only tell you what I think.

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The second thing is that I can’t change the rules for you because you’re not a

lawyer. In other words, the rules are the rules, and both sides have to comply with those

rules. They already know what the rules are. All right? I can’t say to you, you know what;

you didn’t comply with the rule, but you’re not a lawyer, so it’s okay, I’ll overlook it. I’m

not allowed to do that.

The analogy that I end up telling everybody is this: If you had appendicitis, would

you operate on yourself or would you go to a surgeon? Okay? You need a surgeon. That’s

my opinion. I wouldn’t operate on myself. But the choice is 100 percent yours. There is no

pressure from me either way, and there can’t be pressure from anybody. So you can do

whatever it is that you want to do.

Now, having advised you of all of that, are you ready to make a decision as to

whether or not you want to go ahead and represent yourself and not have a lawyer do it for

you?

[DEFENDANT]: I feel, your Honor, that I’ve been presented with an either/or

proposition where I have no choice but to proceed pro se.

THE COURT: I don’t understand what that means. I haven’t given you an either/or,

have I?

[DEFENDANT]: No, your Honor. In my correspondence with [postconviction

counsel], she stated that she would not be pursuing a response to the State’s motion to

dismiss and that I could either accept her conclusion or proceed pro se.

THE COURT: Okay.

[DEFENDANT]: Now, I have no intentions of sitting by idly allowing my petition

to be dismissed without response, your Honor.

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THE COURT: Okay. I understand now.

[POSTCONVICTION COUNSEL]: In response, your Honor—

THE COURT: No, no. There’s no response necessary. Just give me a minute.

***

Let the record show there has been a hearing on the defendant’s motion to proceed

pro se. Supreme Court Rule 401(a) has been read and discussed. The defendant is

admonished about that and knows and understands it.

The defendant persists in his demand to proceed pro se, and, therefore, the

defendant’s motion to proceed pro se is granted. The public defender is withdrawn.”

¶ 39 The matter proceeded to a hearing on the State’s motion to dismiss. Defendant reiterated

that he prepared a written pro se response and that he was ready to argue the motion. The State

argued that the claims defendant asserted were largely matters that had been raised and litigated

on direct appeal. With respect to the claim regarding the attempted ACSA instruction, the State

argued the facts did not support an attempt instruction, that issue should have been raised on direct

appeal, and this court found on direct appeal that there was no evidence to show G.K. was uncertain

about her attack.

¶ 40 Defendant read his response in court and abandoned all of his claims except the ineffective

assistance claim relating to counsel’s advice regarding the sentence of attempted ACSA and

defendant’s resulting decision to forgo the attempt instruction. Defendant argued that his

ineffective assistance claim was “entirely dependent” on his trial attorneys’ affidavits, which were

matters outside of the appellate record and therefore could not have been raised on direct appeal.

With respect to prejudice, defendant argued G.K.’s testimony regarding sexual penetration was

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inconsistent and, had the jury been instructed on attempted ACSA, there was a reasonable

probability that it would have found him guilty of the lesser-included offense of attempt.

¶ 41 Defendant acknowledged to the court that his attorneys discussed with him whether attempt

instructions should be submitted to the jury. He confirmed that the trial court ruled that the attempt

instructions, if requested, would have been submitted to the jury. Finally, defendant acknowledged

that he declined to ask for jury instructions on attempt. He clarified that the attempt counts did not

carry mandatory consecutive sentences and therefore could have been served concurrently. The

trial court responded,

“But it’s not mandatory to be concurrent. It’s discretionary with the court as to

whether or not to impose consecutive or concurrent sentencing where either one is available

to the judge.

So, by advising you of the worst-case scenario, which is consecutive sentences, I

do not find that the advice of the attorneys or discussion by the attorneys is incompetent

representation.

I also find that while I understood everything that you’ve said about the

inconsistencies, which you’ve detailed marvelously, number one, the jury was the finder

of fact, and they bought it beyond a reasonable doubt.”

¶ 42 The court additionally found that “[a]ll of this was discussed on appeal and ruled upon.”

The court granted the State’s motion to dismiss.

¶ 43 On appeal, defendant contends the trial court erroneously dismissed his petition because

he made a substantial showing that trial counsel was ineffective for incorrectly advising him that

sentences for attempted ACSA must be served consecutively for a minimum sentence of 12 years,

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rather than concurrently for a minimum sentence of 4 years, causing him to decline to instruct the

jury on the lesser-included offense of attempted ACSA. We note that during oral arguments before

this court, defendant’s counsel in this appeal did not address defendant’s sentencing claim, but

rather presented argument solely on the issue of whether defendant voluntarily waived his

postconviction counsel.

¶ 44 The Act provides for a three-stage process by which a defendant may assert his conviction

was the result of a substantial denial of his constitutional rights. People v. Beaman, 229 Ill. 2d 56,

71 (2008). At the first stage, the trial court must review the postconviction petition and determine

whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West

2014). If the petition is not dismissed within 90 days at the first stage, counsel is appointed, and it

advances to the second stage. Id. § 122-2.1(a), (b).

¶ 45 This case involves the second stage of postconviction proceedings. At the second stage,

the dismissal of a petition is warranted only when the allegations in the petition, liberally construed

in light of the original trial record, fail to make a substantial showing of a constitutional violation.

People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, the trial court is “concerned merely with

determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity

which would necessitate relief under the Act” (People v. Coleman, 183 Ill. 2d 366, 380 (1998)),

and “all well-pleaded facts that are not positively rebutted by the trial record are to be taken as

true” (People v. Pendleton, 223 Ill. 2d 458, 473 (2006)). The defendant “bears the burden of

making a substantial showing of a constitutional violation.” Id. We review the trial court’s

dismissal of defendant’s postconviction petition without an evidentiary hearing de novo. Id.

¶ 46 To determine whether defendant was denied his right to effective assistance of counsel, we

apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

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Enis, 194 Ill. 2d 361, 376 (2000). Defendant must show, first, that “counsel’s representation fell

below an objective standard of reasonableness” (Strickland, 466 U.S. at 687-88) and, second, that

he was prejudiced such that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different” (id. at 694). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome, namely, that

counsel’s deficient performance rendered the result of the trial unreliable or the proceeding

fundamentally unfair.” Enis, 194 Ill. 2d at 376. To prevail on a claim of ineffective assistance, a

defendant must satisfy both prongs of the Strickland test. Id. at 377. Thus, we may proceed directly

to the prejudice prong. Strickland, 466 U.S. at 697 (“[A] court need not determine whether

counsel’s performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.”).

¶ 47 Defendant claims that counsel was ineffective for improperly advising him that any

attempted ACSA convictions would result in consecutive, rather than concurrent, sentences,

thereby causing him to elect not to instruct the jury on attempted ACSA.

¶ 48 In this case, we find defendant failed to make a substantial showing of ineffective

assistance of counsel, as defendant has not substantially shown that he was prejudiced by counsel’s

advice regarding the minimum sentence for the offense of attempted ACSA, in light of the large

amount of evidence against him. See People v. Hale, 2013 IL 113140, ¶ 17 (stating that a reviewing

court “may dispose of an ineffective assistance of counsel claim by proceeding directly to the

prejudice prong without addressing counsel’s performance”).

¶ 49 As charged in this case, a person commits the offense of aggravated criminal sexual assault

when he commits an act of sexual penetration upon the victim by use of force or threat of force

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and acts in such a manner as to threaten or endanger the life of the victim. 720 ILCS 5/12-14(a)(3)

(West 2010). “ ‘Sexual penetration’ ” is defined as:

“any contact, however slight, between the sex organ or anus of one person by an object,

the sex organ, mouth or anus of another person, or any intrusion, however slight, of any

part of the body of one person *** into the sex organ or anus of another person, including

but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen

is not required to prove sexual penetration.” Id. § 12-12(f).

Thus, for purposes of this case, to prove penetration, the State only needed to prove that defendant

made contact, “however slight,” with G.K.’s genitals or mouth using defendant’s penis. See id.

¶ 50 Here, taking as true defendant’s allegation that he would have elected to have the jury

instructed on attempt had he been informed that the sentences for attempted ACSA could have

been concurrent, as we must at this stage (Pendleton, 223 Ill. 2d at 473), we cannot say that there

was a reasonable probability that the result of the proceeding would have been different had that

instruction been given. Attempt is a lesser included offense of ACSA. See 720 ILCS 5/2-9(b)

(West 2010) (“ ‘Included offense’ means an offense which” “[c]onsists of an attempt to commit

the offense charged or an offense included therein.”) “ ‘A defendant is entitled to a lesser included

offense instruction only if the evidence would permit a jury rationally to find the defendant guilty

of the lesser included offense and acquit him or her of the greater offense.’ ” People v.

Parsons, 284 Ill. App. 3d 1049, 1060 (1996) (quoting People v. Novak, 163 Ill. 2d 93, 107-08

(1994)).

¶ 51 The evidence at trial established that defendant forced his penis into G.K.’s mouth and then

bent her over the couch and touched his penis to her anus and vagina before forcing his penis into

her vagina while shoving her face into couch cushions and threatening to break her neck. Although

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defendant complains that G.K.’s testimony was not credible due to her consumption of alcohol

and Adderall, as we noted on direct appeal, G.K.’s accounts of the attack to the various individuals

who assisted and treated her afterward were consistent, and the jury knew of her use of Adderall

and alcohol and still evidently deemed her credible. Rouse, 2014 IL App (1st) 111302-U, ¶ 38.

Thus, the evidence uncontrovertibly showed contact, however slight, between defendant’s penis

and G.K.’s mouth, vagina, and anus and would not permit a jury to reasonably acquit defendant of

the greater ACSA offense. See People v. Stewart, 406 Ill. App. 3d 518, 539 (2010) (finding the

defendant was not prejudiced by the failure to instruct the jury on the lesser-included offense

because the evidence supporting the defendant’s greater offense was so strong); Parsons, 284 Ill.

App. 3d at 1060-61 (same); People v. McClellan, 232 Ill. App. 3d 990, 1008 (1992) (failure to

instruct jury on lesser offense requires reversal only if the defendant was so prejudiced by such

failure so as to affect the outcome of the verdict).

¶ 52 Moreover, defendant has not shown that the evidence at trial would have permitted a

finding of attempted ACSA to begin with. As we have stated, the State only needed to prove that

defendant made contact, “however slight,” with G.K.’s genitals or mouth using defendant’s penis.

See 720 ILCS 5/12-12(f) (West 2010). Thus, the evidence that defendant inserted his penis into

G.K.’s mouth, touched G.K.’s vagina and anus with his penis, and inserted his penis into G.K.’s

vagina all constituted acts of “sexual penetration.” There was no evidence at trial that would have

supported a finding that defendant attempted, but failed, to make any contact at all with G.K.’s

genitals or mouth using defendant’s penis. Because defendant failed to demonstrate prejudice, we

need not determine whether counsel’s performance was deficient. See Strickland, 466 U.S. at 697.

¶ 53 Defendant next contends that he did not voluntarily waive his right to postconviction

counsel. He argues that he repeatedly stated he had no choice but to proceed pro se because

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postconviction counsel refused to present his claims and that the trial court erred by failing to

inquire into his allegations to ensure his waiver of counsel was knowing and voluntary.

¶ 54 Defendants in postconviction proceedings do not have a constitutional right to counsel.

People v. Lesley, 2018 IL 122100, ¶ 35. Rather, “[t]he right to assistance of counsel in

postconviction proceedings is a matter of legislative grace, and a defendant is guaranteed only the

level of assistance provided by the Post-Conviction Hearing Act.” People v. Hardin, 217 Ill. 2d

289, 299 (2005). Postconviction counsel is required to provide defendant with a “ ‘reasonable level

of assistance.’ ” People v. Lander, 215 Ill. 2d 577, 583-84 (2005) (quoting People v. Owens, 139

Ill. 2d 351, 364 (1990)). Under the Act, indigent defendants are afforded the right to counsel

beyond the first stage of proceedings. 725 ILCS 5/122-4 (West 2014). “In fact, it has been

determined that the Act cannot perform its function unless the attorney appointed to represent an

indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate

legal form, and presents them to the court.” Lesley, 2018 IL 122100, ¶ 33 (citing People v. Suarez,

224 Ill. 2d 37, 46 (2007)).

¶ 55 Although the Act provides that the trial court must appoint counsel for a defendant who so

requests and lacks the means to procure counsel, an indigent defendant is not entitled to

representation by the counsel of his choice. People v. Gray, 2013 IL App (1st) 101064, ¶ 22;

People v. French, 210 Ill. App. 3d 681, 690 (1991). Further, a defendant has a right to proceed

pro se in postconviction proceedings. Lesley, 2018 IL 122100, ¶ 34. If a defendant wishes to

proceed pro se, he must knowingly and intelligently waive his right to counsel, i.e., the waiver

must be clear and unequivocal. Id.; Gray, 2013 IL App (1st) 101064, ¶ 23. In determining whether

a defendant’s waiver is clear and unequivocal, a court must “determine whether the defendant truly

desires to represent himself and has definitively invoked his right of self-representation.” Gray,

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2013 IL App (1st) 101064, ¶ 23. Whether there has been a knowing and intelligent waiver of the

right to counsel depends upon the particular facts and circumstances of the case, including the

background, experience, and conduct of the defendant. Lesley, 2018 IL 122100, ¶ 51. We look to

the entire record to determine whether the waiver of counsel was knowingly and understandingly

made. Id. We review the trial court’s determination regarding whether there has been a knowing

and intelligent waiver of counsel for an abuse of discretion. Gray, 2013 IL App (1st) 101064, ¶ 23.

¶ 56 We initially note that, before defendant sought to proceed pro se in the postconviction

proceedings, defendant’s postconviction counsel had filed a Rule 651(c) certificate. The certificate

reflected that she had consulted with defendant regarding his claims and that she had examined

defendant’s postconviction petition, the evidence at trial, and this court’s order on defendant’s

direct appeal, among other things. Counsel concluded in her certificate that defendant’s pro se

postconviction petition adequately presented defendant’s claims so that no amendments were

necessary. Defendant’s counsel was prepared to orally argue the State’s motion but was fired by

defendant before doing so. Therefore, despite defendant’s assertion that his postconviction counsel

refused to present his claims, the record suggests counsel was in fact prepared to argue defendant’s

claims in the second-stage postconviction hearing.

¶ 57 The record in this case demonstrates that defendant knowingly and intelligently waived his

right to postconviction counsel. Defendant, after conferring with counsel via correspondence,

wrote to the trial court requesting to proceed pro se and detailing his concerns with counsel’s

handling of his case. Defendant acknowledged that counsel’s decision not to amend his petition

“appears to be consistent with her beliefs as well as the law” but was concerned that she did not

wait to reach her decision until after receiving the State’s motion to dismiss. The court allowed

defendant time in court to confer with counsel prior to addressing whether to allow him to proceed

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pro se, and defendant again stated he wished to represent himself. The court subsequently

admonished defendant extensively regarding his right to counsel and that, as a pro se litigant, he

would be held to the same requirements as attorneys. Defendant repeatedly indicated he

understood the admonishments and persisted in his request to represent himself, definitively

invoking his right of self-representation. Defendant was explicit that he disagreed with counsel’s

conclusion regarding the merits of his petition and her decision not to file a written response to the

motion to dismiss and that he wanted to represent himself. Although he disagreed with counsel’s

conclusion in these regards, the record demonstrates his waiver of counsel was knowingly and

intelligently made. See, e.g., Lesley, 2018 IL 122100, ¶ 56 (“[the defendant’s] statements

indicating his reluctance to represent himself show his awareness of the advantages of

representation”).

¶ 58 Moreover, defendant’s handling of his postconviction proceedings shows his waiver of

counsel, while apparently reluctantly made based on counsel’s conclusion about his petition, was

voluntary and knowing. His pro se petition contained six pages of legal argument regarding his

claim of ineffective assistance of trial counsel for improperly advising him of the sentences on the

lesser-included attempt offenses. He cited to relevant legal authority, addressed both prongs of

Strickland in arguing his claim, and attached three supporting affidavits. Even prior to being

granted leave to proceed pro se, defendant came to the hearing on the State’s motion to dismiss

prepared with a written, 14-page pro se response, addressing the State’s arguments in turn and

again citing to relevant legal authority. Defendant’s pro se filings and oral argument demonstrated

his legal sophistication and that he knowingly wished to represent himself.

¶ 59 In reaching this conclusion, we reject defendant’s contentions that counsel could not “stand

mute” on defendant’s petition. Defendant argues counsel was required to either present his claims

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or move to withdraw if she considered the petition frivolous. However, “[c]ounsel’s duties,

pursuant to Rule 651(c), include consultation with the defendant to ascertain his contentions of

deprivation of constitutional right, examination of the record of the proceedings at the trial, and

amendment of the petition, if necessary, to ensure that defendant’s contentions are adequately

presented.” (Emphasis added.) Pendleton, 223 Ill. 2d at 472. Contrary to defendant’s assertion,

counsel was only required to make amendments to defendant’s petition if necessary. As noted

above, defendant’s petition outlined his ineffectiveness claim with citation to relevant authority,

addressed each prong of Strickland, and provided supporting affidavits. Thus, where defendant

adequately presented his claims, we cannot say it was unreasonable for counsel to conclude that,

as she stated in her Rule 651(c) certificate, amendment to defendant’s petition was unnecessary.

¶ 60 Further, we note that, in his letter to the trial court, defendant provided excerpts from his

correspondence with counsel, none of which support his contention that counsel concluded his

petition was frivolous. 1 Defendant’s letter merely states that counsel informed him (1) that, in

counsel’s experience, the court did not allow attorneys to withdraw even if they argue the petition

lacks arguable merit but that counsel disagreed and believed parties have a constitutional right to

represent themselves and (2) that counsel would not amend or supplement defendant’s pro se

petition and that “a postconviction attorney can stand on the petition, or withdraw as counsel if the

pleadings are frivolous.” These generalized statements regarding postconviction proceedings do

not show that counsel found defendant’s petition frivolous. To the contrary, counsel did not move

to withdraw, indicating she did not find the petition frivolous. See People v. Bass, 2018 IL App

(1st) 152650, ¶ 20 (“[I]f the lawyer appointed to represent a postconviction petitioner determines,

1 Copies of counsel’s correspondence are not included in the record on appeal.

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after fulfilling his or her obligations under Rule 651(c), that the petition cannot be amended,

defendant has received the reasonable assistance of counsel the Act contemplates and his

entitlement to the assistance of counsel is at an end.”).

¶ 61 We similarly reject defendant’s contention that the court should have further inquired into

defendant’s allegations regarding counsel. As previously noted, defendant wrote the court a letter

detailing his concerns with counsel’s decision not to amend his petition. Thus, the court was well

aware of the details of defendant’s allegations, including that he did not agree with counsel’s

assessment of his petition and that counsel should have consulted with him further “to see if it was

possible to ‘shore up’ the argument for prejudice.” The court was also aware of defendant’s claim

that counsel refused to file a written response to the State’s motion to dismiss and heard counsel

state she was prepared to argue the motion orally. Moreover, prior to addressing the State’s motion

to dismiss, the court admonished defendant regarding his right to represent himself and the pitfalls

involved in doing so. It discussed with him his reasons for proceeding pro se, i.e., his disagreement

with counsel’s assessment of the case and counsel’s refusal to respond to the motion to dismiss in

writing. After receiving defendant’s detailed letter and discussing the matter in a hearing, the court

had ample notice of why defendant wanted to proceed pro se. There was no need for further inquiry

to determine that defendant’s waiver of counsel was knowing and understanding.

¶ 62 In sum, we find (1) the court did not err in dismissing defendant’s postconviction petition

where defendant failed to make a substantial showing of a constitutional violation of ineffective

assistance of trial counsel and (2) defendant knowingly and voluntarily waived his right to

¶ 63 Affirmed.

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No. 1-17-0491

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR- 17598; the Hon. James N. Karahalios, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Emily Hartman, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Miles J. Keleher, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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