People v. Sullivan

2024 IL App (4th) 230203-U

• Court: Appellate Court of Illinois
• Decided: January 18, 2024
• Docket: 4-23-0203
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230203-U This Order was filed under FILED Supreme Court Rule 23 and is January 18, 2024 NO. 4-23-0203 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Mercer County JOHN F. SULLIVAN, ) No. 19CF12 Defendant-Appellant. ) ) Honorable ) Matthew W. Durbin, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding: (1) postconviction counsel filed a satisfactory certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) and (2) the issue of ineffective assistance of trial counsel was waived.

¶2 In July 2022, defendant, John F. Sullivan, through appointed counsel, filed an

amended postconviction petition contending his trial counsel provided ineffective assistance by

laboring under a conflict of interest. The trial court granted the State’s motion to dismiss.

Defendant appeals, arguing postconviction counsel provided unreasonable assistance. We affirm.

¶3 I. BACKGROUND

¶4 In July 2019, defendant was charged by amended information with one count of

theft (720 ILCS 5/16-1(a)(1) (West 2018)), a Class 3 felony, and one count of obstructing justice

(720 ILCS 5/31-4(a)(1) (West 2018)), a Class 4 felony, in connection with his retention and

eventual selling of a horse trailer belonging to, and left on his property by, Robin McGee. Specifically, the State alleged that on or about December 29, 2018, defendant knowingly

obtained unauthorized control over this trailer and, on or about March 24, 2019, lied to a

detective by saying he did not know who removed the trailer from his property. Defendant’s wife

was similarly charged for the incident, and both retained the services of Herb Schultz for their

defense. After a bench trial, the trial court found defendant guilty of both counts. The court

sentenced defendant to 24 months’ probation and 90 days’ stayed jail time. The court also

ordered defendant to pay restitution in the amount of $8064—$5000 for the value of the trailer

and $3064 for the value of its contents. On direct appeal, the Third District reversed defendant’s

obstructing justice conviction and vacated the trial court’s restitution determination for

insufficient evidence. People v. Sullivan, No. 3-20-0086 (2021) (unpublished summary order

under Illinois Supreme Court Rule 23(c)). In March 2022, the trial court held a new restitution

hearing. The court reduced the restitution amount to $2000. Defendant appealed, but this court

affirmed. People v. Sullivan, 2023 IL App (4th) 220263-U, ¶ 30.

¶5 Prior to this, in October 2021, two weeks before defendant’s probation was to

end, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2020)), in which he alleged receiving “[i]nsufficient counsel” at trial.

In December 2021, the trial court advanced this petition to the second stage of proceedings. The

court appointed Aaron Dyer as postconviction counsel, and Dyer filed an amended petition. The

amended petition alleged Schultz provided ineffective assistance by failing to withdraw as

counsel for defendant’s wife in her separate criminal case. Dyer characterized this as a per se

conflict of interest inhibiting Schultz’s representation of defendant. In particular, Dyer asserted,

given this conflict:

-2- “[Schultz] could not call [defendant’s wife] as a witness to the stand

without violating her separate fifth amendment rights. She could not

testify as to the veracity or lack-there-of [sic], of the statements made by

Ms. McGee. She could not testify to anything to protect herself from the

charges in her own case. This is inherently a conflict because [Schultz]

was not using his full talents as a vigorous advocate having the single aim

of acquittal by all means for [defendant]. He had to split his attention

between two defendants with similar interests. His efforts were restrained

by commitments to [defendant’s wife].”

¶6 That same day, Dyer filed a certificate pursuant to Illinois Supreme Court Rule

651(c) (eff. July 1, 2017). The certificate stated as follows:

“1. That Aaron M. Dyer is the court-appointed attorney for the

Defendant-Petitioner, [defendant].

2. That Aaron Dyer has consulted with [defendant] in person to

ascertain his contentions of deprivation of constitutional rights.

3. That Aaron M. Dyer has examined the trial court file and Report

of Proceedings.

4. That Aaron M. Dyer has made any amendments to

Defendant-Petitioner’s Post-Conviction Petition necessary for adequate

presentation of [his] contentions.”

¶7 The State filed a motion to dismiss defendant’s amended postconviction petition.

First, the State asserted defendant lacked standing to obtain postconviction relief after being

successfully discharged from probation. Second, the State asserted defendant waived his claim of

-3- ineffective assistance of counsel by not raising it on direct appeal. Finally, the State contended a

per se conflict of interest does not arise merely because an attorney represents two defendants in

related cases and defendant did not establish Schultz labored under an actual conflict of interest.

Defendant did not file a response.

¶8 In February 2023, the trial court granted the State’s motion to dismiss. While the

court rejected the State’s first argument as to defendant’s lack of standing to obtain

postconviction relief, it accepted the latter two.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant argues Dyer failed to satisfy his obligations under Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017) in the following respects: first, Dyer failed to

attach any affidavits to the amended petition in support of the claim Schultz labored under a

conflict of interest; and second, Dyer incorrectly asserted a per se conflict of interest rather than

an actual conflict of interest and thereby failed to present this claim in an appropriate legal form.

The State argues defendant’s contention of ineffective assistance of counsel is waived as it was

not raised on direct appeal.

¶ 12 The Act provides a three-stage process by which a defendant may collaterally

challenge a conviction or sentence for a violation of a federal or state constitutional right. People

v. Jones, 211 Ill. 2d 140, 143-44, 809 N.E.2d 1233, 1236 (2004). At the first stage, the trial court

must determine, taking the allegations as true, whether the defendant’s petition is frivolous or

patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2022). At the second stage, “the State

may move to dismiss a petition or an amended petition pending before the court.” People v.

Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999, 1008 (2006). The defendant bears the burden of

-4- making a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d at 473. At the

second stage of proceedings, all well-pleaded facts not positively rebutted by the trial record are

to be taken as true. Pendleton, 223 Ill. 2d at 473. A third stage evidentiary hearing is only

required “where the allegations of the post-conviction petition make a substantial showing that

the defendant’s constitutional rights have been violated.” People v. Johnson, 154 Ill. 2d 227, 239,

609 N.E.2d 304, 310 (1993).

¶ 13 A defendant is not constitutionally entitled to the effective assistance of counsel at

a postconviction proceeding. People v. McNeal, 194 Ill. 2d 135, 142, 742 N.E.2d 269, 273

(2000).

“Because the source of the right to counsel in a post-conviction matter is statutory

rather than constitutional, the degree of skill and care that a lawyer must exercise

in representing a post-conviction petitioner is not controlled by the sixth

amendment standard announced by the Supreme Court in Strickland v.

Washington[, 466 U.S. 668 (1984)].” McNeal, 194 Ill. 2d at 142; see U.S. Const.,

amend. VI.

“[A] defendant in postconviction proceedings is entitled to only a ‘reasonable’ level of

assistance, which is less than that afforded by the federal or state constitutions.” Pendleton, 223

Ill. 2d at 472. Our supreme court has specified counsel is required to perform only those duties

outlined by Rule 651(c). People v. Greer, 212 Ill. 2d 192, 204-05, 817 N.E.2d 511, 519 (2004).

These include the duty to (1) confer with the defendant to ascertain his claims of constitutional

deprivations, (2) examine the record of the proceedings at trial, and (3) make any amendment to

the pro se petition necessary to ensure the defendant’s contentions are adequately presented.

Pendleton, 223 Ill. 2d at 472. Counsel is not required to advance frivolous or spurious claims on

-5- a defendant’s behalf. Pendleton, 223 Ill. 2d at 472 (citing Greer, 212 Ill. 2d at 205).

Postconviction counsel is also “not required to amend a defendant’s pro se postconviction

petition.” People v. Kirk, 2012 IL App (1st) 101606, ¶ 21, 978 N.E.2d 248. “In fact, counsel’s

decision not to amend a defendant’s pro se petition has been held not to constitute a deprivation

of adequate representation where his claim lacks a sufficient factual basis.” Kirk, 2012 IL App

(1st) 101606, ¶ 21. “Our review of an attorney’s compliance with a supreme court rule, as well as

the dismissal of a postconviction petition on motion of the State, is de novo.” People v. Profit,

2012 IL App (1st) 101307, ¶ 17, 974 N.E.2d 813.

¶ 14 The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption

postconviction counsel provided reasonable assistance. People v. Jones, 2011 IL App (1st)

092529, ¶ 23, 955 N.E.2d 1200. Counsel’s failure to supply necessary affidavits or other

evidence will not rebut the presumption that arises from the Rule 651(c) certificate. Instead, a

court ruling on a motion to dismiss a postconviction petition that is not supported by affidavits or

other documents may reasonably presume postconviction counsel made a concerted effort to

obtain affidavits in support of the claims but was unable to do so. Johnson, 154 Ill. 2d at 241.

The defendant bears the burden of overcoming the presumption of reasonable assistance by

demonstrating postconviction counsel’s failure to substantially comply with Rule 651(c). Jones,

2011 IL App (1st) 092529, ¶ 23. Here, the claim involves matters occurring before or since trial

that would be clearly within the knowledge of defendant and his wife. Thus, we can reasonably

expect defendant, at some point in a case which has made its way to and from the appellate court

twice, would have previously raised the issue, been in a position to provide affidavits to counsel,

or provided an explanation for such affidavits not being available.

-6- ¶ 15 Here, Dyer’s Rule 651(c) certificate was facially satisfactory. He says he

consulted with defendant to ascertain his contentions of the deprivation of constitutional rights,

examined the record of the proceedings, and made any amendments to defendant’s pro se

petition that were necessary for an adequate presentation of his contentions. Therefore, there is a

rebuttable presumption Dyer provided reasonable assistance. Ordinarily, we would next consider

whether defendant rebutted this presumption. That would require us to assess whether there was

an actual conflict of interest. If there was, and Dyer did not amend the petition to raise it,

defendant could rebut the presumption Dyer provided reasonable assistance. However, as our

supreme court has explained:

“In an initial post-conviction proceeding, the common law

doctrines of res judicata and waiver operate to bar the raising of claims

that were or could have been adjudicated on direct appeal. *** Exceptions

to this common law principle of judicial administration are made in three

situations: where fundamental fairness so requires; where the alleged

waiver stems from the incompetence of appellate counsel; or where facts

relating to the claim do not appear on the face of the original appellate

record.” (Internal quotation marks omitted.) People v. Pitsonbarger, 205

Ill. 2d 444, 458, 793 N.E.2d 609, 620 (2002).

¶ 16 On direct appeal, defendant did not raise a claim of ineffective assistance of

counsel stemming from a conflict of interest. “[T]he failure to raise a claim of ineffectiveness of

trial counsel in the direct appeal renders the issue waived in post-conviction proceedings.”

People v. Wilson, 307 Ill. App. 3d 140, 145, 717 N.E.2d 835, 840 (1999). Defendant argues his

failure to raise the claim on direct appeal should be excused because it required information

-7- outside the record. We disagree. Defendant elected to proceed to trial by retaining counsel to

represent both himself and his wife. Thus, any facts defendant might claim to show ineffective

assistance would have been known to him during the trial proceedings and could have been

raised on direct appeal. As defendant could have raised his ineffective assistance of trial counsel

claim on direct appeal but did not, the claim is waived for purposes of his postconviction

petition.

¶ 17 III. CONCLUSION

¶ 18 For the reasons stated, we affirm the trial court’s judgment.

¶ 19 Affirmed.

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