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).
2023 IL App (3d) 210105-U
Order filed June 28, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0105 v. ) Circuit No. 14-CF-334 ) STEVEN J. VARNAUSKAS, ) Honorable ) Terence M. Patton, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Justices Albrecht and Peterson concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Postconviction counsel failed to file the certificate required by Illinois Supreme Court Rule 651(c), and the record does not establish counsel’s compliance with the rule.
¶2 Defendant, Steven J. Varnauskas, appeals the Henry County circuit court’s denial of his
postconviction petition. Defendant argues postconviction counsel failed to file the certificate
required by Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), and the record does not
establish that counsel otherwise satisfied the requirements of the rule. We reverse and remand. ¶3 I. BACKGROUND
¶4 A jury found defendant guilty of two counts of controlled substance trafficking (720 ILCS
570/401.1(a) (West 2014)). The evidence adduced at trial established that defendant was stopped
for an obstructed license plate. Defendant drove a car that was rented from Los Angeles and was
stopped in Illinois. Receipts located inside the car showed that many stops had been made from
California to Illinois and purchases were made in cash. Pursuant to a positive canine alert for the
presence of drugs, police searched defendant’s car on the side of the road for approximately 20
minutes before moving the car to the police department to continue the search. The initial search
on the side of the road was fruitless. Following the move, officers located drugs under the hood in
the engine compartment. We affirmed on direct appeal. People v. Varnauskas, 2018 IL App (3d)
150654, ¶ 38. Specifically, we found that trial counsel was not ineffective for failing to file a
motion to suppress arguing that the probable cause developed during defendant’s traffic stop
dissipated after the vehicle was relocated. Id. ¶¶ 35-36.
¶5 On April 17, 2020, defendant filed a pro se postconviction petition. Defendant’s petition
alleged, inter alia, various claims of ineffective assistance of trial and appellate counsel,
prosecutorial misconduct, circuit court error, and actual innocence. Defendant attached an affidavit
averring that when he told trial and appellate counsel that he was “actually innocent” he was told
that “it was not important” and “there was no need to prove anything.” Further, defendant asserted
that he informed trial and appellate counsel that he had alibi witnesses, and those witnesses would
have changed the outcome of his trial. The affidavit was signed by defendant and notarized. The
court advanced defendant’s petition to the second stage and appointed counsel.
¶6 On June 11, 2020, counsel filed a motion for discovery. In the motion, counsel stated that
obtaining the materials he sought would enable him to “discharge his duties under Supreme Court
2 Rule 651(c).” On September 24, 2020, counsel filed an amended postconviction petition solely
advancing defendant’s claim of ineffective assistance of trial and appellate counsel for failing to
file a motion to suppress arguing the dissipation of probable cause during defendant’s traffic stop.
Counsel also stated that defendant sought “incorporation of the Affidavits attached to his pro se
Petition.” Counsel filed a second amended postconviction petition elaborating on the ineffective
assistance of trial and appellate counsel claim raised in the prior amended petition. At the hearing,
counsel referenced our decision in Varnauskas, 2018 IL App (3d) 150654, ¶ 38, and argued that it
was “defendant’s position that that’s not the law.” Additionally, counsel indicated that he was
prepared to present defendant’s testimony if the court advanced the petition to an evidentiary
hearing. The court granted the State’s motion to dismiss, finding that defendant’s claim, the only
one advanced by counsel, was barred by res judicata.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that postconviction counsel provided unreasonable assistance
by failing to comply with and file the certificate required by Rule 651(c), where the record does
not explicitly show that counsel (a) consulted with defendant to ascertain his constitutional
violations, (b) reviewed the entirety of the record, and (c) shaped defendant’s claims into proper
legal form. Defendant also argues that counsel failed to develop a claim worthy of pursuit. The
State concedes that counsel failed to file a Rule 651(c) certificate and “never explicitly stated on
the record that he spoke to defendant” but argues the record is otherwise sufficient to show that
counsel fulfilled the duties required by the rule.
¶9 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) “provides a
method by which persons under criminal sentence can assert that their convictions were the result
of a substantial denial of their rights under the United States or the Illinois Constitution or both.”
3 People v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 10. A defendant is only entitled to reasonable
assistance from postconviction counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). To ensure
that defendant receives reasonable assistance, Rule 651(c) requires that counsel comply with and
file a certificate that he or she has
“consulted with petitioner by phone, mail, electronic means or in person to
ascertain his or her contentions of deprivation of constitutional rights, has
examined the record of the proceedings at the trial, and has made any
amendments to the petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1,
2017).
¶ 10 Postconviction counsel’s failure to file an affidavit certifying compliance with Rule 651(c)
does not warrant an automatic reversal. People v. Johnson, 154 Ill. 2d 227, 238 (1993). “If counsel
fails to file a certificate of compliance with Rule 651(c), a reviewing court is not entitled to assume
that counsel has complied with the rule; rather, there must be an explicit showing in the record that
the rule’s requirements have been met.” People v. Myers, 386 Ill. App. 3d 860, 865 (2008). When
an explicit showing exists, the error caused by counsel’s failure to file a Rule 651(c) certificate is
harmless. People v. Suarez, 224 Ill. 2d 37, 45-46 (2007). Where the record does not sufficiently
demonstrate counsel’s compliance with the rule, we must remand the matter to the circuit court for
compliance. Id. at 47.
¶ 11 Here, the record does not include a Rule 651(c) certificate and fails to explicitly show that
postconviction counsel consulted with defendant by phone, mail, electronic means, or in person to
Free access — add to your briefcase to read the full text and ask questions with AI
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).
2023 IL App (3d) 210105-U
Order filed June 28, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0105 v. ) Circuit No. 14-CF-334 ) STEVEN J. VARNAUSKAS, ) Honorable ) Terence M. Patton, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Justices Albrecht and Peterson concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Postconviction counsel failed to file the certificate required by Illinois Supreme Court Rule 651(c), and the record does not establish counsel’s compliance with the rule.
¶2 Defendant, Steven J. Varnauskas, appeals the Henry County circuit court’s denial of his
postconviction petition. Defendant argues postconviction counsel failed to file the certificate
required by Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), and the record does not
establish that counsel otherwise satisfied the requirements of the rule. We reverse and remand. ¶3 I. BACKGROUND
¶4 A jury found defendant guilty of two counts of controlled substance trafficking (720 ILCS
570/401.1(a) (West 2014)). The evidence adduced at trial established that defendant was stopped
for an obstructed license plate. Defendant drove a car that was rented from Los Angeles and was
stopped in Illinois. Receipts located inside the car showed that many stops had been made from
California to Illinois and purchases were made in cash. Pursuant to a positive canine alert for the
presence of drugs, police searched defendant’s car on the side of the road for approximately 20
minutes before moving the car to the police department to continue the search. The initial search
on the side of the road was fruitless. Following the move, officers located drugs under the hood in
the engine compartment. We affirmed on direct appeal. People v. Varnauskas, 2018 IL App (3d)
150654, ¶ 38. Specifically, we found that trial counsel was not ineffective for failing to file a
motion to suppress arguing that the probable cause developed during defendant’s traffic stop
dissipated after the vehicle was relocated. Id. ¶¶ 35-36.
¶5 On April 17, 2020, defendant filed a pro se postconviction petition. Defendant’s petition
alleged, inter alia, various claims of ineffective assistance of trial and appellate counsel,
prosecutorial misconduct, circuit court error, and actual innocence. Defendant attached an affidavit
averring that when he told trial and appellate counsel that he was “actually innocent” he was told
that “it was not important” and “there was no need to prove anything.” Further, defendant asserted
that he informed trial and appellate counsel that he had alibi witnesses, and those witnesses would
have changed the outcome of his trial. The affidavit was signed by defendant and notarized. The
court advanced defendant’s petition to the second stage and appointed counsel.
¶6 On June 11, 2020, counsel filed a motion for discovery. In the motion, counsel stated that
obtaining the materials he sought would enable him to “discharge his duties under Supreme Court
2 Rule 651(c).” On September 24, 2020, counsel filed an amended postconviction petition solely
advancing defendant’s claim of ineffective assistance of trial and appellate counsel for failing to
file a motion to suppress arguing the dissipation of probable cause during defendant’s traffic stop.
Counsel also stated that defendant sought “incorporation of the Affidavits attached to his pro se
Petition.” Counsel filed a second amended postconviction petition elaborating on the ineffective
assistance of trial and appellate counsel claim raised in the prior amended petition. At the hearing,
counsel referenced our decision in Varnauskas, 2018 IL App (3d) 150654, ¶ 38, and argued that it
was “defendant’s position that that’s not the law.” Additionally, counsel indicated that he was
prepared to present defendant’s testimony if the court advanced the petition to an evidentiary
hearing. The court granted the State’s motion to dismiss, finding that defendant’s claim, the only
one advanced by counsel, was barred by res judicata.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that postconviction counsel provided unreasonable assistance
by failing to comply with and file the certificate required by Rule 651(c), where the record does
not explicitly show that counsel (a) consulted with defendant to ascertain his constitutional
violations, (b) reviewed the entirety of the record, and (c) shaped defendant’s claims into proper
legal form. Defendant also argues that counsel failed to develop a claim worthy of pursuit. The
State concedes that counsel failed to file a Rule 651(c) certificate and “never explicitly stated on
the record that he spoke to defendant” but argues the record is otherwise sufficient to show that
counsel fulfilled the duties required by the rule.
¶9 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) “provides a
method by which persons under criminal sentence can assert that their convictions were the result
of a substantial denial of their rights under the United States or the Illinois Constitution or both.”
3 People v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 10. A defendant is only entitled to reasonable
assistance from postconviction counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). To ensure
that defendant receives reasonable assistance, Rule 651(c) requires that counsel comply with and
file a certificate that he or she has
“consulted with petitioner by phone, mail, electronic means or in person to
ascertain his or her contentions of deprivation of constitutional rights, has
examined the record of the proceedings at the trial, and has made any
amendments to the petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1,
2017).
¶ 10 Postconviction counsel’s failure to file an affidavit certifying compliance with Rule 651(c)
does not warrant an automatic reversal. People v. Johnson, 154 Ill. 2d 227, 238 (1993). “If counsel
fails to file a certificate of compliance with Rule 651(c), a reviewing court is not entitled to assume
that counsel has complied with the rule; rather, there must be an explicit showing in the record that
the rule’s requirements have been met.” People v. Myers, 386 Ill. App. 3d 860, 865 (2008). When
an explicit showing exists, the error caused by counsel’s failure to file a Rule 651(c) certificate is
harmless. People v. Suarez, 224 Ill. 2d 37, 45-46 (2007). Where the record does not sufficiently
demonstrate counsel’s compliance with the rule, we must remand the matter to the circuit court for
compliance. Id. at 47.
¶ 11 Here, the record does not include a Rule 651(c) certificate and fails to explicitly show that
postconviction counsel consulted with defendant by phone, mail, electronic means, or in person to
ascertain his or her contentions of deprivation of constitutional rights. See Myers, 386 Ill. App. 3d
4 at 865. Therefore, remand is required for compliance with Rule 651(c) and de novo second-stage
proceedings.
¶ 12 We are unpersuaded by the State’s argument that we can “presume[ ],” “infer,” and rely on
“suggest[ions]” in the record to find that counsel was “aware” of, and “fulfilled” his duties under
Rule 651(c), and consulted with defendant to ascertain his constitutional claims. Presumptions and
inferences are insufficient to establish an explicit showing that counsel communicated with
defendant specifically to ascertain his contention of deprivation of his constitutional rights required
under the rule. See Myers, 386 Ill. App. 3d at 865; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
Therefore, we reverse the circuit court’s denial of the postconviction petition and remand for
de novo second-stage proceedings. Because we reverse for second-stage proceedings, we need not
consider defendant’s remaining contentions.
¶ 13 III. CONCLUSION
¶ 14 The judgment of the circuit court of Henry County is reversed and remanded.
¶ 15 Reversed and remanded.