People v. Tillery

2022 IL App (1st) 200045

• Court: Appellate Court of Illinois
• Decided: May 13, 2022
• Docket: 1-20-0045
• Status: Published

Opinion

2022 IL App (1st) 200045

FIFTH DIVISION May 13, 2022

No. 1-20-0045

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Respondent-Appellee, ) ) v. ) No. 13 CR 895002 ) DONALD TILLERY, ) Honorable ) Thomas Joseph Hennelly, Petitioner-Appellant. ) Judge Presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.

ORDER

¶1 Held: The petitioner received reasonable assistance from his appointed postconviction counsel. We therefore affirm the second-stage dismissal of his postconviction petition.

¶2 Petitioner Donald Tillery appeals the second-stage dismissal of his postconviction petition,

arguing that his postconviction counsel provided unreasonable assistance in violation of Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017) by failing to adequately examine the trial record

and amend his petition. We affirm. 1-20-0045

¶3 We discuss only the facts necessary for the disposition of the issues in this appeal. A more

thorough recitation of the facts is included in petitioner’s direct appeal. See People v. Tillery, 2016

IL App (1st) 143101-U.

¶4 Petitioner was indicted for delivery of a controlled substance and possession of a controlled

substance with intent to deliver stemming from a controlled buy conducted by Chicago police on

April 14, 2013. After a bench trial, the circuit court found petitioner guilty of both counts. The

court determined that petitioner qualified for class X sentencing based on his record and imposed

a 10-year sentence on count I, with a concurrent one-year sentence on count II. Petitioner

challenged his sentence on direct appeal and we affirmed. See id.

¶5 On December 28, 2016, petitioner filed a pro se postconviction petition in which he alleged

five claims: (1) ineffective assistance of posttrial counsel for failing to file a motion to reconsider

sentence; (2) ineffective assistance of trial counsel for failures to file a motion to quash, inform

him of an offer for a plea agreement, call certain witnesses at trial, conduct an investigation prior

to trial, and make certain objections during trial; (3) the State failed to prove him guilty beyond a

reasonable doubt; (4) the State violated Brady by failing to provide full disclosures of requested

discovery; and (5) his conviction violated the one-act/one-crime doctrine. Petitioner submitted a

notarized affidavit in support of his petition, declaring that all the facts alleged were true and

correct.

¶6 The circuit court advanced the petition to the second stage and appointed Assistant Public

Defender (APD) Tiffin Price-Horton to represent petitioner. On March 31, 2017, APD Price-

Horton appeared for a status hearing and informed the court that she had been recently appointed

and “prepare[d] some orders for the Court” to obtain petitioner’s records. In a hearing on October

20, 2017, when APD Price-Horton told the court that she was only assigned to the case “sometime

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this summer,” the court clarified that the petition had been filed in December 2016. The court

asked APD Price-Horton if she was going to file a supplemental petition and she responded that

she was either going to file a supplemental petition or a “1-51-C.” The matter was continued

several more times at status hearings during which APD Price-Horton did not appear.

¶7 On May 31, 2018, APD Price-Horton filed a certificate under Rule 651(c), certifying that

she: (1) consulted with petitioner “by letter and phone to ascertain his contentions of deprivations

of constitutional rights”; (2) “obtained and examined the transcript of his bench trial and

sentencing in this case”; and (3) did not file “an Amended Petition for Post-Conviction Relief,”

because the pro se petition “adequately sets forth the petitioner’s claims [for] ineffective assistance

of counsel and [] deprivation of his constitutional rights.” She filed an identical amended certificate

on June 12, 2018.

¶8 On October 5, 2018, the State moved to dismiss the petition. During a hearing on the

motion, APD Price-Horton stated that she wanted to file a response, and the court scheduled a

hearing on the State’s motion. APD Price-Horton did not file a response to the State’s motion to

dismiss.

¶9 At the January 14, 2019 hearing on the State’s motion to dismiss, APD Price-Horton stated

that she “reviewed both the Public Defender’s trial file as well as subpoenaed and reviewed the

Cook County hospital records to determine whether or not there was some sort of mental

impairment, perhaps, that was not addressed. I was unsuccessful. There was nothing that would

lead me to believe that.” She also stated that through her investigator, she tried to obtain witnesses

from petitioner, “but they were not forthcoming, so I was unable to investigate that which [sic] he

says in his post-conviction.” APD Price-Horton stated that the witnesses “were not investigated,

but were not tendered any mentioned [sic].” APD Price-Horton also stated that she reviewed the

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mandate from the 2014 direct appeal. She stated that she filed the Rule 651(c) certificate and stood

on what petitioner tendered to her.

¶ 10 On December 6, 2019, the circuit court granted the State’s motion and dismissed the

postconviction petition. This appeal followed.

¶ 11 ANALYSIS

¶ 12 On appeal, petitioner argues that postconviction counsel failed to comply with Rule 651(c).

He contends that the Rule 651(c) certificate was deficient because postconviction counsel failed

to certify that she examined the record of the proceedings at trial and took no action whatsoever to

properly support or amend his pro se petition into proper legal form.

¶ 13 Postconviction proceedings contain three stages. People v. Tate, 2012 IL 112214, ¶ 9. At

the first stage, the circuit court independently reviews the petition, takes the allegations as true,

and determines whether the petition is frivolous or patently without merit. Id. A petition may be

summarily dismissed as frivolous or patently without merit only if the petition has no arguable

basis either in law or in fact. Id. If the court does not summarily dismiss the petition, it advances

to the second stage, where counsel may be appointed to an indigent petitioner, and where the State

may respond to the petition. Id. ¶ 10. At this stage, the court determines whether the petition and

any accompanying documentation make a substantial showing of a constitutional violation. Id. If

no such showing is made, the petition is dismissed. Otherwise, the petition is advanced to the third

stage for an evidentiary hearing. Id.

¶ 14 Here, the petition was dismissed at the second stage of proceedings. During the second

stage of proceedings, a petitioner bears the burden of making a substantial showing of a

constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35. This stage, however, only

tests the legal sufficiency of the petition. Unless the allegations in the petition are positively

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rebutted by the record, they are taken as true, and the question to be resolved at the second stage

is whether those allegations establish a constitutional violation. Id. “In other words, the ‘substantial

showing’ of a constitutional violation that must be made at the second stage [citation] is a measure

of the legal sufficiency of the petition’s well-pled allegations of a constitutional violation, which

if proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original and

internal citation omitted.) Id. We review the circuit court’s dismissal of a postconviction petition

at the second stage de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 15 Petitioner has not challenged the dismissal of his postconviction petition on the merits.

Thus, he has forfeited any argument that his claims of constitutional deprivation were meritorious.

People v. Cotto, 2016 IL 119006, ¶ 49; Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not

argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for

rehearing”).

¶ 16 A defendant does not have a constitutional right to assistance of counsel in postconviction

proceedings, and the right to appointed counsel at the second stage of postconviction review in

Illinois is a statutory creation. People v. Johnson, 2018 IL 122227, ¶ 16. Accordingly, a claim that

postconviction counsel’s performance was inadequate is not reviewed under the ineffective

assistance standard, but the lower reasonable assistance standard. People v. Custer, 2019 IL

123339, ¶ 30. Rule 651(c) outlines the steps an attorney must take to provide reasonable assistance,

including the requirement to certify her efforts in detail on the record. Id. ¶ 32; Ill. S. Ct. R. 651(c)

(eff. July 1, 2017). Specifically, the rule requires that postconviction counsel certify that she

consulted with the petitioner “to ascertain his or her contentions of deprivation of constitutional

rights,” examined the record of trial proceedings, and amended the petition as “necessary for an

adequate presentation” of the petitioner’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

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

postconviction counsel provided reasonable assistance.” People v. Profit, 2012 IL App (1st)

101307, ¶ 19. “It is defendant’s burden to overcome this presumption by demonstrating his

attorney’s failure to substantially comply with the duties mandated by Rule 651(c).” Id. We review

whether postconviction counsel substantially complied with Rule 651(c) de novo. People v. Bass,

2018 IL App (1st) 152650, ¶ 13.

¶ 18 Here, postconviction counsel filed a Rule 651(c) certificate that stated she had (1) consulted

with petitioner “by letter and telephone to ascertain his contentions of deprivations of

constitutional rights”; (2) “obtained and examined the transcript of his bench trial and sentencing

in this case”; and (3) did not file “an Amended Petition for Post-Conviction Relief,” because the

pro se petition “adequately sets forth the petitioner’s claims [for] ineffective assistance of counsel

and [] deprivation of his constitutional rights.” Because postconviction counsel filed a Rule 651(c)

certificate, she is presumed to have provided reasonable assistance to petitioner.

¶ 19 Petitioner offers no argument in either his opening or reply briefs regarding whether this

presumption has been rebutted. Instead, he argues that postconviction counsel failed to comply

with Rule 651(c). According to petitioner, postconviction counsel failed to properly review the

entire trial record and should have amended his pro se petition by putting it in proper legal form

and attaching necessary witness affidavits to support the petition. After carefully reviewing the

record, we find that petitioner has failed to overcome the presumption that postconviction counsel

provided reasonable assistance during second stage proceedings.

¶ 20 First, we address petitioner’s contention that postconviction counsel failed to comply with

Rule 651(c) because she was not sufficiently familiar with the trial record. He argues that although

counsel “may have examined the report of proceedings from the trial and sentencing, since counsel

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explicitly stated in the certificate that she examined those portions, there is no indication counsel

examined the trial common law record or the exhibits.” (Emphasis in original.)

¶ 21 The record belies petitioner’s contention. Although postconviction counsel certified that

she “obtained and examined the transcript of his bench trial and sentencing in this case,” she also

stated during the hearing on the State’s motion to dismiss that she reviewed the public defender’s

trial file and the 2014 mandate from this court on petitioner’s direct appeal.

¶ 22 “Rule 651(c) only requires postconviction counsel to examine as much of the record ‘as is

necessary to adequately present and support those constitutional claims raised by the petitioner.’ ”

Pendleton, 223 Ill. 2d at 475-76 (quoting Davis, 156 Ill. 2d at 164). Other than counsel’s language

in the certificate, petitioner has failed to show that counsel’s examination of the record was

insufficient. He does not point to any errors or misstatements in court but rather assumes that

counsel failed to substantially comply. Petitioner has not overcome the presumption that counsel

substantially complied with Rule 651(c).

¶ 23 Petitioner, however, cites People v. Blanchard, 2015 IL App (1st) 132281 to support his

argument that postconviction counsel’s Rule 651(c) certificate “does not warrant a presumption of

compliance” because “it plainly states that counsel only reviewed the ‘[r]eport of proceedings”

from trial. In Blanchard, the defendant did not argue that he had rebutted the presumption of

substantial compliance, but rather contended that postconviction counsel failed to indicate on the

Rule 651(c) certificate that counsel examined the exhibits, specifically a lineup photo and the

victim’s bank card. The failure to examine those exhibits required reversal because there, the

postconviction petition identified specific exhibits as a basis for the petition. Blanchard, 2015 IL

App (1st) 132281, ¶ 18. Petitioner in this case has not identified a similar concern, but only broadly

argued that postconviction counsel failed to review the entire record. This is distinguishable from

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Blanchard, wherein the court noted a specific reference to relevant trial exhibits at issue in the

postconviction petition. The Blanchard court also stated that “nothing in Rule 651(c) suggests that

the certificate is intended to be a comprehensive recounting of all of an attorney’s postconviction

efforts.” (Emphasis added.) Id. Petitioner simply cherry picks what he perceives to be the flaws of

postconviction counsel’s familiarity with the record without offering any argument regarding

overcoming the presumption of substantial compliance. Blanchard is not analogous to this case.

¶ 24 We find this court’s decision in People v. Richardson, 382 Ill. App. 3d 248 (2008) to be

more relevant to the issue presented here. The Richardson court held a Rule 651(c) certificate was

sufficient because postconviction counsel “consulted with [the petitioner] by letters,” “obtained

and examined the report of proceedings [in the petitioner’s] trial,” and “prepared a supplemental

petition for postconviction relief ‘augmenting [the petitioner’s] previously filed Petition.’ ” Id. at

251. The reviewing court found that counsel had substantially complied with Rule 651(c) despite

the “alleged shortcomings” of the certificate. Id. at 257. The court further observed that were it “to

find counsel’s certificate in this case insufficient to pass muster under Rule 651(c), we would be

hard-pressed to conceive of a certificate that would demonstrate counsel’s compliance, short of

one that exactly mirrors the language of the rule.” Id.

¶ 25 Here, postconviction counsel stated in her certificate that she obtained and examined the

transcript of his bench trial and sentencing in this case. Additionally, postconviction counsel

informed the circuit court that she reviewed petitioner’s trial file for her investigation of

petitioner’s postconviction claims. We find that postconviction counsel substantially complied

with Rule 651(c) regarding review of the trial record. Nothing in the record before this court

suggests that counsel failed to examine all relevant portions of the trial record pertinent to

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petitioner’s postconviction claims. Since counsel filed a Rule 651(c) certificate, petitioner has not

overcome the presumption that counsel substantially complied in this argument.

¶ 26 Next, petitioner argues that postconviction counsel also failed to comply with Rule 651(c)

by not amending his pro se petition or attaching necessary evidence in support of the petition. He

contends that this failure rendered his second stage petition subject to dismissal.

¶ 27 Postconviction counsel is under no obligation to amend a petition to pursue a meritless

claim, as such an amendment is not “necessary” per the statute. See People v. Collins, 2021 IL

App (1st) 170597, ¶ 38 (citing People v. Greer, 212 Ill. 2d 192, 205 (2004)). As our supreme court

has explained, if an amendment to a pro se postconviction petition “would only further a frivolous

or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.” Greer,

212 Ill. 2d at 205. Illinois courts have repeatedly held that “the purpose of Rule 651(c) is to ensure

that counsel shapes the petitioner’s claims into proper legal form and presents those claims to the

court.” People v. Perkins, 229 Ill. 2d 34, 43-44 (2007) (citing People v. Pinkonsly, 207 Ill. 2d 555,

568 (2003)).

¶ 28 Initially, we must emphasize that not even petitioner himself argues that the dismissed

claims in his pro se petition had merit, and his failure to argue any of them before this court

supports the conclusion that postconviction counsel was not unreasonable for not amending the

petition, despite her unsuccessful efforts to obtain additional evidentiary support. See Profit, 2012

IL App (1st) 101307, ¶ 23 (“we believe that the question of whether the pro se allegations had

merit is crucial to determining whether counsel acted unreasonably by not filing an amended

petition”).

¶ 29 In Bass, postconviction counsel filed a Rule 651(c) certificate and found the petitioner’s

pro se postconviction petition adequately stated his contentions of constitutional deprivations and

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declined to amend the petition. Id. ¶ 7. The State moved to dismiss and counsel did not file a

written response. Rather, counsel stood on the petition, but informed the court that he had

attempted to obtain witness affidavits and was unsuccessful. Id. ¶ 8. The circuit court dismissed

the petition. Id. ¶ 9.

¶ 30 On appeal, the petitioner did not argue the merits of his petition and forfeited any argument

that his claims of constitutional deprivation were meritorious. Id. ¶ 10. Instead, he based his claim

for relief solely on the contention that postconviction counsel rendered unreasonable assistance by

failing to amend his petition to include witness affidavits, to explain the absence of those affidavits,

or move to withdraw pursuant to Greer. The court stated that petitioner’s argument “begs the

question since he presumes (without any support in the record) that counsel’s failure to amend his

petition was the result of some deficiency in his lawyer’s performance rather than the inability to

substantiate [his] claims.” Id. ¶ 14.

¶ 31 The record in Bass showed that postconviction counsel informed the court during multiple

hearings that he attempted to locate the potential witnesses named in the pro se petition and that

he met with petitioner and reviewed the record. Counsel ultimately stated that he interviewed three

witnesses, including two named in the petition and “ ‘was not able to get any affidavits or attach

any affidavits to the petition.’ ” Id. ¶ 15.

¶ 32 The Bass court held that postconviction counsel fulfilled all the obligations imposed by

Rule 651(c), concluding “not every petition can be amended to state a substantial constitutional

claim.” Id. ¶ 16. The court further explained:

“[I]f the lawyer appointed to represent a postconviction petitioner determines, 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

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contemplates and his entitlement to the assistance of counsel is at an end. [Cite.]

And whether appointed counsel elects to withdraw and inform the court of the

reasons why the petition lacks merit or instead elects to stand on the pro se petition,

the result is the same; defendant’s unamended petition will be dismissed.” Id. ¶ 20.

¶ 33 We find Bass to be well reasoned and agree with its conclusion. As previously observed,

the filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that postconviction

counsel provided reasonable assistance and it is petitioner’s burden to overcome this presumption.

Profit, 2012 IL App (1st) 101307, ¶ 19. Postconviction counsel filed a Rule 651(c) certificate and

stated that she worked with an investigator to obtain witnesses from petitioner, “but they were not

forthcoming,” and she was unsuccessful. Petitioner has the burden to rebut this presumption

through a showing that counsel’s conduct was unreasonable despite the efforts detailed in the

certificate. People v. Landa, 2020 IL App (1st) 170851, ¶ 46.

¶ 34 In this case, postconviction counsel chose to rest on the pro se petition, explaining that it

adequately set forth petitioner’s arguments. Accordingly, counsel’s decision to rest on the pro se

petition does not support petitioner’s claim of unreasonable assistance and, furthermore, petitioner

has failed to rebut the presumption that postconviction counsel rendered reasonable assistance in

substantial compliance with Rule 651(c).

¶ 35 CONCLUSION

¶ 36 We affirm the circuit court’s second stage dismissal of petitioner’s pro se postconviction

petition.

¶ 37 Affirmed.