People v. Malone , 74 N.E.3d 24 ( 2017 )

2017 IL App (3d) 140165Opinion filed January 23, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-14-0165
v. ) Circuit No. 09-CF-684
)
WILLIAM A. MALONE, ) Honorable
) David A. Brown,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justices O’Brien and Lytton concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 The defendant, William A. Malone, appeals from the dismissal of his postconviction
petition, arguing that postconviction counsel provided unreasonable assistance by failing to
amend the postconviction petition or withdraw as counsel.
¶2 FACTS
¶3 The defendant was convicted of aggravated criminal sexual assault (720 ILCS 5/12-
14(a)(1) (West 2008)), home invasion (720 ILCS 5/12-11(a)(2) (West 2008)), aggravated
robbery (720 ILCS 5/18-5(a) (West 2008)), and failure to register as a sex offender (730 ILCS
150/10 (West 2008)). He was sentenced respectively to natural life imprisonment, 30 years’
imprisonment, 30 years’ imprisonment, and 10 years’ imprisonment. The home invasion,
aggravated robbery, and failure to register as a sex offender sentences would all run concurrent
and would be consecutive to the sentence for aggravated criminal sexual assault. On appeal, this
court affirmed his convictions, reduced his aggravated robbery sentence to 15 years, and vacated
a DNA testing fee. People v. Malone, 2012 IL App (3d) 100425-U, ¶ 20.
¶4 The defendant subsequently filed a pro se postconviction petition, claiming: (1) his rights
were violated when the State filed multiple counts charging the same crime under different
theories, and home invasion was a lesser included offense of aggravated robbery; (2) one of the
jurors worked at the same hospital as the victim and another knew the judge; (3) the prosecutor
made improper comments to discredit the defendant and improperly vouched for the State’s
witnesses; and (4) he was not eligible for a natural life sentence because his prior sex convictions
were for criminal sexual abuse.
¶5 The trial court appointed counsel to represent the defendant, and the State filed a motion
to dismiss, arguing that none of the issues the defendant raised in his pro se petition had merit.
Postconviction counsel did not amend the defendant’s postconviction petition nor add any
affidavits or any other supporting documentation. At the hearing on the State’s motion to
dismiss, the State chose to rest on the arguments contained in their motion to dismiss.
Postconviction counsel stated that they disagreed with the argument set forth in the State’s
motion to dismiss, but would also stand on the arguments set forth in the pro se postconviction
petition. The defendant made a statement at the hearing on the motion to dismiss, which
expounded on his argument about the prosecutor’s improper comments and potential bias of the
jurors. The trial court gave the defendant the opportunity to submit further documentation of his
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claims should he so choose. It does not appear from the record that the defendant submitted any
further documentation. The trial court took the matter under advisement and ultimately granted
the State’s motion to dismiss. Postconviction counsel filed a Rule 651(c) certificate. Ill. S. Ct. R.
651(c) (eff. Feb. 6, 2013).
¶6 ANALYSIS
¶7 On appeal, the defendant argues that postconviction counsel provided unreasonable
assistance as counsel’s representation amounted to representation “in name only.” Specifically,
the defendant argues that postconviction counsel should have either amended the postconviction
petition or moved to withdraw as counsel if he found the petition to be meritless.
¶8 A defendant’s right to postconviction counsel is wholly statutory, and, under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), a petitioner is only
entitled to reasonable assistance of counsel. People v. Mason, 2016 IL App (4th) 140517, ¶ 19.
Reasonable assistance of postconviction counsel is premised on counsel’s compliance with
Illinois Supreme Court Rule 651(c). Id. Rule 651(c) provides that postconviction counsel must
file a certificate stating:
“that the attorney 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. Feb. 6, 2013).
¶9 Here, postconviction counsel did not amend the defendant’s pro se postconviction
petition. Neither the State nor the defendant’s postconviction counsel presented oral arguments at
the hearing on the State’s motion to dismiss, both solely relying on the arguments in their written
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documents. Postconviction counsel filed a Rule 651(c) certificate, which stated that he consulted
with the petitioner, examined the record, and made any necessary amendments to the petition.
¶ 10 The defendant contends that postconviction counsel should have amended the pro se
petition. Postconviction counsel, however, is not required to amend a defendant’s pro se
postconviction petition. People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008). Ethical obligations
prevent counsel from doing so if the claims are frivolous. Id. If the claims are frivolous,
postconviction counsel has the option of standing on the allegations in the pro se petition or to
withdraw as counsel. Id. Further, the defendant does not make any recommendation as to how
counsel could have improved the petition, other than stating that counsel did not attach any
affidavits supporting the claims. “[T]here is no showing of the existence of any facts or evidence
on which such affidavits could have been founded. Absent a showing of available material for
supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by
the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970). Counsel is not required to go on a
“fishing expedition” to find facts and evidence outside the record that might support the
defendant’s claims. See People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005).
¶ 11 Postconviction counsel filed a compliant Rule 651(c) certificate, giving rise to the
presumption that counsel complied with the rule and provided reasonable assistance. See Profit,
2012 IL App (1st) 101307, ¶¶ 19, 23. The defendant has failed to rebut that presumption.
Therefore, we accept that postconviction counsel provided reasonable assistance in that he
reviewed the record and could not or did not need to make any amendments to the petition to
adequately present the defendant’s claims.
¶ 12 In coming to this conclusion, we reject the defendant’s contention that if postconviction
counsel could not amend the pro se petition, he should have withdrawn as counsel. Though
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People v. Greer, 212 Ill. 2d 192, 211 (2004), allows postconviction counsel to withdraw when
the allegations of the petition are without merit and frivolous, it does not compel withdrawal
under such circumstances. Id. (“the Act presents no impediment to withdrawal of counsel”).
Whether postconviction counsel stood on the pro se petition or withdrew as counsel is a
distinction without a difference. Further, we note that the trial court gave the defendant the
opportunity to present a statement at the hearing, which the defendant did. The court also
allowed the defendant to provide any further documentation prior to the court making its
decision, which the defendant failed to do. Therefore, the defendant was given the opportunity to
explain his constitutional deprivations to the trial court, as he claims he could have done had
postconviction counsel withdrawn.
¶ 13 We also reject the defendant’s reliance on People v. Shortridge, 2012 IL App (4th)
100663. Postconviction counsel in Shortridge did not just fail to amend the pro se postconviction
petition or withdraw as counsel, but instead actually “confess[ed] the motion to dismiss” filed by
the State. (Internal quotation marks omitted.) Id. ¶ 6. We find Shortridge distinguishable on this
fact alone.
¶ 14 CONCLUSION
¶ 15 The judgment of the circuit court of Peoria County is affirmed.
¶ 16 Affirmed.
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