People v. Woodard

2023 IL App (1st) 221746-U

• Court: Appellate Court of Illinois
• Decided: October 19, 2023
• Docket: 1-22-1746
• Status: Unpublished

Opinion

2023 IL App (1st) 221746-U FOURTH DIVISION Order filed October 19, 2023

No. 1-22-1746 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Cook Plaintiff-Appellee, ) County. ) v. ) No. 01 CR 373 ) LAKISHA WOODARD, ) Honorable ) Carol M. Howard, Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Rochford and Justice Martin concurred in the judgment.

ORDER

¶ 1 Held: We affirmed the second stage dismissal of the defendant’s petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) where postconviction counsel provided reasonable assistance when he elected not to amend the defendant’s pro se postconviction petition because the defendant has not overcome the presumption of compliance created by the filing of an Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) certificate. No. 1-22-1746

¶2 The defendant, Lakisha Woodard, appeals from the order of the circuit court granting the

State’s motion to dismiss her postconviction petition. On appeal, the defendant contends that she

was denied the reasonable assistance of postconviction counsel. The defendant argues that she was

provided unreasonable assistance when postconviction counsel failed to “substantiate [her] claim

that her de facto life sentence violates the Eighth Amendment [(U.S. Const., amend. VIII)] and

Illinois Proportionate Penalties clause [(Ill. Const. 1970, art I, § 11)] as applied to her for a crime

she committed when she was only 21 years old.” The State responds that a certificate filed pursuant

to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) creates a presumption that postconviction

counsel made a concerted effort to obtain support for the defendant’s claims but could not, and that

her eighth amendment and proportionate penalties clause arguments fail, as a matter of law, because

she was 21 years old at the time of the offense. For the reasons that follow, we affirm.

¶3 The facts of this case are adequately set forth in this court’s previous opinion, People v.

Woodward, 367 Ill. App. 3d 304 (2006), and we repeat only those necessary to an understanding of

the current appeal.

¶4 Following a jury trial, the defendant was found guilty of first degree murder and solicitation

of murder. According to the State’s theory of the case, the defendant was involved in a series of

altercations during which her face was slashed with a razor knife. The defendant asked her

codefendant, Marlon Porter, to kill DaShaun Smith and Joanna Smith in retaliation for her injury.

The defendant provided Porter with a loaded revolver and a car. Porter took the weapon, but, in a

case of mistaken identification, shot Orlando Patterson. Patterson died as a result of his injuries.

¶5 Following argument by the parties, the trial court sentenced the defendant to consecutive

terms of 45 years’ incarceration for murder and 20 years’ incarceration for solicitation of murder.

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On direct appeal, this court affirmed the defendant’s convictions and sentences. Woodward, 367 Ill.

App. 3d at 323.

¶6 In August 2021, the defendant filed a motion for leave to file a successive postconviction

petition. Although the motion sought leave to file a successive postconviction petition, it appears

from the record that his was actually the defendant’s initial postconviction petition. The petition

alleged, in relevant part, that the defendant was 21 years old at the time of the offenses. The petition

further alleged that her 65-year sentence was a de facto life sentence and that such a sentence violated

the eighth amendment of the United States Constitution. Alternatively, the petition argued that the

“Illinois Excluded Jurisdiction Statute” (705 ILCS 405/5-130 (West 2020)) violated both the eighth

amendment and the Illinois constitution’s due process (Ill. Const. 1970, art 1, § 2) and proportionate

penalties clauses. The circuit court initially dismissed the petition, but vacated the dismissal,

advanced the petition to the second stage and appointed counsel to represent the defendant.

¶7 In May 2022, counsel filed a certificate pursuant to Rule 651(c) which stated counsel had:

consulted with the defendant; examined the record; and examined the defendant’s petition. In the

certificate, counsel opined that the defendant’s petition provided an adequate presentation of her

claims and stated that he was not filing a supplemental petition.

¶8 In September 2022, the State filed a motion to dismiss the defendant’s petition. Counsel for

the defendant elected not to file a written response. During oral argument, the State argued that the

defendant was not entitled to the protections accorded juveniles by Miller v. Alabama, 567 U.S. 460

(2012), because she was 21 years old at the time of the offense. The State further argued that her

“non-Miller” eighth amendment claims failed because her 65-year sentence was not “grossly

disproportionate” to the crime. The circuit court held that, in light of the defendant's age, her Miller

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claim and excluded jurisdiction claims failed. The circuit court further held that, in light of the

defendant’s role in the murder, the 65-year sentence did not violate the eighth amendment. The

circuit court granted the State’s motion to dismiss. This appeal followed.

¶9 On appeal, the defendant does not contend that her pro se petition set forth a substantial

claim of a constitutional violation. The defendant has also apparently abandoned any claim based

on the excluded jurisdiction section of the Juvenile Court Act of 1987 (405/5-130 (West 2020))

Instead, the defendant contends that she was denied the reasonable assistance of counsel because

postconviction counsel failed to amend or supplement her petition to set forth a substantial claim

that the imposition of a de facto life sentence in her particular circumstances violated the

proportionate penalties clause of the Illinois constitution. We disagree.

¶ 10 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides a

method whereby a criminal defendant can assert that her conviction or sentence violates the United

States Constitution, the Illinois Constitution, or both. See People v. Rollins, 2023 IL App (2d)

200744, ¶ 11 (citing People v. Hodges, 234 Ill. 2d 1, 9 (2009)). The Act sets forth three stages of

proceedings. People v. King, 2023 IL App (1st) 220916, ¶ 36. At the first stage, the circuit court

independently reviews the petition and determines whether it is frivolous or patently without merit.

Id., ¶ 38. If a petition is not dismissed at the first stage, it proceeds to the second stage where the

court may appoint counsel for the defendant and the State may file a motion to dismiss or an answer

to the petition. Id. To survive dismissal, a petition must make a substantial showing of a

constitutional violation. Id., ¶ 39. If a petition is not dismissed at the second stage of proceedings, it

proceeds to the third stage for an evidentiary hearing. Id. At the second stage of proceedings, all

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well-pleaded facts are taken as true, and we review the circuit court’s decision to dismiss de novo.

See People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 11 “There is no constitutional right to the assistance of counsel in postconviction proceedings;

the right to counsel is wholly statutory (see 725 ILCS 5/122–4 (West 2000)), and petitioners are

only entitled to the level of assistance provided for by the Post–Conviction Hearing Act (Act) ( 725

ILCS 5/122–1 et seq. (West 2000)).” People v. Suarez, 224 Ill. 2d 37, 42 (2007). The level of

assistance required is only a reasonable one. See People v. Pabello, 2019 IL App (2d) 170867, ¶ 22

(citing People v. Flores, 153 Ill. 2d 264, 276 (1992)). One aspect of reasonable assistance is

compliance with Illinois Supreme Court Rule 651(c). Id., ¶ 23. Rule 651(c) imposes three duties on

postconviction counsel. Id. Counsel must show that he (1) consulted with the petitioner to ascertain

her contentions of constitutional violations, (2) examined the trial record, and (3) made any

amendments to the pro se petition necessary to adequately present the petitioner's claims. Rule

651(c) (eff. July 1, 2017). “The filing of a facially valid Rule 651(c) certificate creates a rebuttable

presumption that counsel acted reasonably and complied with the rule.” People v. Wallace, 2016 IL

App (1st) 142758, ¶ 25. We review de novo an attorney’s compliance with Rule 651(c) and the scope

of an attorney’s duties under the rule. People v. Smith, 2020 IL App (1st) 181220, ¶ 13.

¶ 12 The defendant’s arguments focus on Rule 651(c)’s third duty. The third duty does not require

postconviction counsel to make amendments that would only advance frivolous or spurious claims.

See People v. Gallano, 2019 IL App (1st) 160570, ¶ 30 (citing People v. Greer, 212 Ill. 2d 192, 205

(2004)). Amendments that would only further a frivolous or patently nonmeritorious claim are not

“necessary” within the meaning of Rule 651(c). Similarly, postconviction counsel has no obligation

to locate witnesses not specifically identified by the petitioner, conduct an investigation to discover

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the identity of witnesses who might support the petitioner’s claims, or engage in a generalized

fishing expedition in search of support for the claims in the petition. See People v. Williams, 186 Ill.

2d 55, 60-61 (1999).

¶ 13 In this case, the defendant argues that postconviction counsel failed to adequately support

her proportionate penalties claim. In order to determine whether counsel was obligated to do so, we

must examine the merits of her claim. Here, the defendant was 21 years old at the time of the

offenses. The appellate court in this state has generally rejected Miller-type proportionate penalties

claims for defendants over the age of 21. See People v. Green, 2022 IL App (1st) 200749, ¶ 42

(collecting cases and concluding “the line of adulthood has been drawn at age 21.”) The defendant,

however, relies on what may be the only case allowing an emerging adult claim to proceed for a

defendant over the age of 21, People v. Savage, 2020 IL App (1st) 173135. In Savage, a panel of

this court reversed the summary dismissal of a postconviction petition that claimed the 85-year

sentence imposed on the defendant, who was 21 years and 7 months of age at the time of his offense,

violated the proportionate penalties clause. The Savage defendant argued that he had been drug

addicted since the age of nine years old and that he was using drugs at the time of the offense and

that these facts lowered his “functional age.”

¶ 14 We find the defendant’s reliance on Savage unavailing. First, Savage has been strongly

criticized by other panels of this court. See People v. Buford, 2023 IL App (1st) 201176, ¶ 47 (“Since

its issuance, the Savage decision has become an outlier in the developing case law regarding youthful

offenders ***.”) Second, Savage is distinguishable. Savage involved a first stage summary dismissal

of a postconviction petition. Savage, 2020 IL App (1st) 173135, ¶ 47. Accordingly, the reviewing

court in Savage was looking simply for the “gist of a constitutional claim.” Id., ¶ 53. In this case,

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where the proceedings had reached the second stage, the defendant was required to make a

substantial showing of a constitutional violation. See King, 2023 IL App (1st) 220916, ¶ 39. In light

of these different burdens, we do not believe Savage provides a good analogy to the defendant’s

case.

¶ 15 Moreover, there are significant factual differences between Savage and this case. The

defendant in Savage claimed that he was drug addicted from the age of nine, had been treated for

mental illness, and had been in special education classes. Savage, 2020 IL App (1st) 173135, ¶¶ 71-

72. Here, the defendant’s petition alleged no similar facts supporting a proportionate penalties claim.

¶ 16 The defendant argues, however, that her claim would not be frivolous if postconviction

counsel had amended the petition to add the factual support we have found missing. The defendant

argues that this proposed amendment constituted nothing more than a routine amendment and relies

on People v. Addison, 2023 IL 127119, for the proposition that the failure to make routine

amendments necessary to “shape” a defendant’s claims falls below the level of reasonable

assistance. See Id., ¶ 25. We find that the defendant’s arguments based on Addison are similarly

unavailing. In Addison, the defendant attempted to avoid forfeiture of several claims in his pro se

petition by arguing that appellate counsel was ineffective for failing to raise those issues on direct

appeal. Id. Postconviction counsel filed an amended petition but eliminated the allegations of

ineffective assistance of appellate counsel. Id. Our supreme court held that postconviction counsel’s

actions which actually eliminated necessary allegations from the defendant’s petition rebutted the

presumption of compliance created when postconviction counsel filed a Rule 651(c) certificate. See

Id., ¶ 28.

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¶ 17 Here, we cannot conclude that the presumption of compliance has been rebutted. The

defendant argues that postconviction counsel should have amended her petition with “new

mitigating evidence about [the defendant’s] circumstances that was not present at her original

sentencing hearing.” This cannot be described as a routine amendment. On appeal, the defendant

does not identify what evidence postconviction counsel should have added or where counsel could

have obtained the evidence. The defendant has not identified anything in the record that would even

suggest where counsel could have located evidence that would have supported the defendant’s claim.

In short, the defendant is arguing for a fishing expedition. We conclude the alleged failure of

postconviction counsel in this case to engage in a fishing expedition does not rebut the presumption

of compliance created by the filing of a Rule 651(c) certificate.

¶ 18 Therefore, we conclude that the defendant has not overcome the presumption of compliance

created by postconviction counsel’s filing of a Rule 651(c) certificate and the circuit court did not

err in dismissing her petition.

¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 20 Affirmed.

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