People v. Beasley , 2017 IL App (4th) 150291 ( 2017 )

Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2017.10.23
08:49:58 -05'00'
People v. Beasley, 2017 IL App (4th) 150291
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ZEBULIN BEASLEY, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0291
Filed September 26, 2017
Decision Under Appeal from the Circuit Court of Macon County, No. 09-CF-145; the
Review Hon. Timothy J. Steadman, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Sonthonax B.
Appeal SaintGermain, of State Appellate Defender’s Office, of Springfield,
for appellant.
Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
Robinson, and Linda McClain, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Justices Steigmann and Appleton concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Zebulin Beasley, appeals from the second-stage dismissal of his amended
postconviction petition. On appeal, defendant argues (1) the trial court erroneously concluded
his amended postconviction petition failed to make a substantial showing of a constitutional
violation, (2) his postconviction counsel provided unreasonable assistance, and (3) the circuit
clerk improperly imposed fines against him. We affirm in part and vacate in part.
¶2 I. BACKGROUND
¶3 A. Information
¶4 In January 2009, the State charged defendant by information with three counts of first
degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)), three counts of unlawful possession
of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), one count of retail theft (720 ILCS
5/16A-3(a) (West 2008)), one count of aggravated unlawful use of a weapon (720 ILCS
5/24-1.6(a)(1), (a)(3)(A) (West 2008)), and one count of unlawful use of a weapon (720 ILCS
5/24-1(a)(7)(iii) (West 2008)). Each count of first degree murder included a sentencing
enhancement for the personal discharge of a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West
2008)).
¶5 B. Plea Hearing
¶6 In February 2010, the trial court held a plea hearing. Defendant and the State indicated they
reached a fully negotiated plea agreement. As part of that agreement, defendant would plead
guilty to the charge of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) in exchange for
the State moving to amend the information to remove the sentencing enhancement, dismissing
all other charges against defendant, and recommending a 30-year prison sentence.
¶7 The State moved to amend the information to remove the sentencing enhancement, which
the trial court granted. The court admonished defendant as to the offense charged in the
amended information and the possible penalties. Defendant indicated he understood. The court
also admonished defendant as to the rights he was giving up if he pleaded guilty. Defendant
indicated he understood. Defendant expressed his desire to plead guilty and signed a jury
waiver.
¶8 The State provided the following factual basis in support of the plea:
“The State’s evidence would show that on [January 24, 2009,] at around 12:54 p.m.
officers from the Decatur Police Department were dispatched to 1537 East Walnut
Street in Decatur on a shots fired call. Upon arrival, they located the victim, Nazareth
Lee, in the kitchen area of this residence. The kitchen is just off an enclosed porch. Mr.
Lee was laying [sic] on his back and had three apparent gunshot wounds. These turned
out to be wounds caused by two bullets. One went through his left arm through and
through and then entered his chest cavity striking a lung and damaging his aorta. That
bullet was recovered. The second one went in the right arm and remained in the right
arm, so it was recovered. Mr. Lee was taken to Decatur Memorial Hospital. He died
there as a result of internal injuries sustained from the gunshot to his chest. Witnesses at
the scene of this offense implicated [defendant] and Cordell Scott as being people
involved in the shooting. Cordell Scott was interviewed following his Miranda rights
-2-
by detectives Frank Hubbard and Charles Hendricks of the Decatur Police Department.
Mr. Scott indicated he went to 1537 East Walnut with [defendant]. He, Scott, engaged
in an argument with a visitor at the residence named Jamario Freeman on the front
porch. Mr. Scott indicates [defendant] stood at the front of the house as this verbal
argument went on, and that during the course of the argument, Jamario Freeman
retrieved a knife and displayed it, although he did not swing at it or charge Mr. Scott
with it. Cordell Scott indicates that at that point [defendant] then fired a gun at Jamario
Freeman, and that he and [defendant] ran away after the shots were fired. [Defendant]
was interviewed following his Miranda rights by Detectives Hubbard and James
Atkinson of the Decatur Police Department. He indicated he had received a call that
afternoon from a friend saying Jamario Freeman had threatened him with a knife.
Cordell Scott decided to fight Jamario Freeman over that threat. The two of them then
went to 1537 East Walnut to confront Jamario Freeman. [Defendant] brought along his
.38 caliber revolver with him because he said Jamario Freeman was known to have
weapons. Jamario Freeman and Cordell Scott engaged in a verbal argument. Cordell
Scott then threw a beer bottle at the house. Jamario Freeman went inside, came back
outside with a knife, displayed the weapon. And then [defendant] indicates he shot the
weapon he carried at Jamario Freeman intending to kill Jamario Freeman. He indicates
that he ran after he fired shots. He indicates later he left the area with his sister. He was
taken to an alleyway in the 1000 block of East William Street and there hid a gun. The
police went to 1044 West William Street and located a firearm beneath the backstairs
of the residence there. [Defendant] was questioned concerning this and identified that
as the gun that he had used that afternoon. Other bullets besides the one recovered from
the victim’s body were recovered from the door frame of the residence where this
occurred. The bullets from the body and the bullets from the scene along with this
firearm were sent to the Illinois State Police Crime Lab for analysis. Vickie Reels, a
forensic scientist there, conducted experiments and determined to a reasonable degree
of professional certainty that all of the bullets had been fired by the weapon identified
by [defendant]. *** Jamario Freeman suffered no injuries as a result of this incident
and the victim, Nazareth Lee, had nothing to do with the altercation or the previous
altercation that led to the gunfire in this case.”
Defendant did not object to the factual basis, and the trial court found it to be sufficient to
support the plea.
¶9 The trial court questioned defendant as to whether his trial counsel answered all of his
questions to his satisfaction, to which defendant indicated he had. The court accepted the plea,
finding it to be knowingly and voluntarily made, and sentenced defendant to 30 years’
imprisonment with credit for time served in presentence custody. The record shows defendant
was later assessed certain fines and fees, including (1) a $5 Crime Stoppers assessment, (2) a
$5 youth diversion assessment, (3) a $25 violent crime victims assistance assessment, and (4) a
$10 arrestee’s medical assessment.
¶ 10 After rendering its sentence, the trial court admonished defendant as to his appellate rights
and his need to file a motion to withdraw his guilty plea within 30 days to preserve his right to
appeal. Defendant indicated he understood the court’s admonishments.
-3-
¶ 11 C. Pro Se Postconviction Petition
¶ 12 In December 2011, defendant filed a pro se postconviction petition, alleging, in part, he
received ineffective assistance “[w]hen [t]rial counsel failed to file a [m]otion to [w]ithdraw
his [g]uilty [p]lea, where he repeated[ly] asked his [attorney] to file an [a]ppeal.” In support of
his claim, defendant alleged (1) he notified counsel of his desire to withdraw his guilty plea,
(2) he requested counsel to file “a [m]otion to withdraw his [p]lea and appeal,” (3) counsel
indicated he would visit him at the jail on a later date to discuss the reasons for withdrawal,
(4) counsel never visited him at the jail, and (5) counsel did not file a motion to withdraw his
guilty plea. Defendant attached to his petition a personal affidavit, which realleged the above
facts and added he felt like he was in a “no win” situation and accepted the plea based upon
counsel’s statement he did not think they would win the case if it went to trial.
¶ 13 That same month, the trial court advanced defendant’s petition to the second stage of
postconviction proceedings and appointed counsel to represent defendant.
¶ 14 D. Addendum to Defendant’s Postconviction Petition
¶ 15 In September 2014, defendant, through appointed counsel, filed an addendum to his
postconviction petition, which set forth additional independent claims of ineffective assistance
of trial counsel. In part, defendant alleged the following:
“1. Counsel failed to file a [m]otion to [s]uppress [d]efendant’s ‘in[-]custody
statements’, even though [d]efendant informed his counsel *** that he was ‘under the
influence of three-mind altering substances[’] and was not ‘completely cognizant’ at
the time of his statements. ***
2. Counsel denied [d]efendant of his right to assert the defense, ‘defense of
another’, by incorrectly informing the [d]efendant that ‘self-defense’ is only available
if [d]efendant himself ‘was in harm’s way’, and refused to further investigate or to even
discuss the matter. By doing so, [c]ounsel deprived the [d]efendant of his right to
present one of the defenses available to the charges outstanding against the [d]efendant.
3. *** That in counsel’s effort to obtain [d]efendant’s approval of the [plea] offer,
counsel informed [d]efendant that, at trial, he would not be entitled to an instruction of
a lesser included charge, at a time counsel knew that said possibility did exist. That by
counsel’s failure to fully inform [d]efendant of his choices and the law, counsel
deprived [d]efendant of his right to effective assistance of counsel.”
Defendant attached to his addendum his April 8, 2009, notarized statement, which requested
his in-custody statements be suppressed because he was under the influence of marijuana,
cocaine, and alcohol when giving those statements. Defendant, through counsel, later filed a
second personal affidavit in support of these additional claims.
¶ 16 E. State’s Amended Motion To Dismiss Defendant’s
Amended Postconviction Petition
¶ 17 In October 2014, the State filed a motion to dismiss defendant’s amended postconviction
petition, which it later amended. The State asserted defendant failed to make a substantial
showing of a constitutional violation. In particular, the State argued, even if the trial court were
to assume defendant asked his trial counsel to file a motion to withdraw his guilty plea,
-4-
defendant failed to show he suffered prejudice by counsel’s failure to do so.
¶ 18 F. Hearing on the State’s Amended Motion To Dismiss
Defendant’s Amended Postconviction Petition
¶ 19 In March 2015, the trial court held a hearing on the State’s amended motion to dismiss
defendant’s amended postconviction petition. Defendant’s postconviction counsel filed a
certificate in compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
Following arguments, the court dismissed defendant’s petition, finding it failed to make a
substantial showing of a constitutional violation.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues (1) the trial court erroneously concluded his amended
postconviction petition failed to make a substantial showing of a constitutional violation,
(2) his postconviction counsel provided unreasonable assistance, and (3) the circuit clerk
improperly imposed fines against him.
¶ 23 A. Trial Court’s Dismissal
¶ 24 Defendant asserts the trial court erroneously concluded his amended postconviction
petition failed to make a substantial showing of a constitutional violation. Defendant contends
his petition makes a substantial showing his trial counsel provided ineffective assistance by
(1) failing to perfect his right to appeal by filing a motion to withdraw his guilty plea and
(2) affirmatively misadvising him on a plausible defense and an available lesser offense of
second degree murder.
¶ 25 At the second stage of postconviction proceedings, the trial court determines whether a
defendant’s postconviction petition and any accompanying documentation make a
“ ‘substantial showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688,
¶ 33, 987 N.E.2d 767 (quoting People v. Edwards, 197 Ill. 2d 239, 246, 757 N.E.2d 442, 446
(2001)). In making this determination, the court accepts all well-pleaded facts as true, unless
they are affirmatively refuted by the record. Id. ¶ 35. The defendant bears the burden of
making a substantial showing of a constitutional violation. Id. We review a trial court’s
second-stage dismissal de novo. People v. Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999,
1008 (2006).
¶ 26 “[T]he sixth amendment [(U.S. Const., amend. VI)] guarantees a defendant the right to
effective assistance of counsel at all critical stages of the criminal proceedings, which include
the entry of a guilty plea.” People v. Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439. Claims of
ineffective assistance of counsel are governed by the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d
1246, 1255-56 (1984) (adopting Strickland). To succeed on a claim of ineffective assistance of
counsel, a defendant must show (1) counsel’s performance fell below an objective standard of
reasonableness and (2) the deficient performance resulted in prejudice. Strickland, 466 U.S. at
687; Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439. To satisfy the deficiency prong of
Strickland, counsel’s performance must be so deficient that counsel was “not functioning as
the ‘counsel’ guaranteed by the sixth amendment.” People v. Easley, 192 Ill. 2d 307, 317, 736
-5-
N.E.2d 975, 985 (2000). To satisfy the prejudice prong of Strickland, the defendant must
demonstrate, but for counsel’s deficient performance, there is a reasonable probability the
result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694; People
v. Houston, 226 Ill. 2d 135, 144, 874 N.E.2d 23, 29 (2007). Failure to satisfy either prong
defeats the claim. Strickland, 466 U.S. at 697; People v. Coleman, 183 Ill. 2d 366, 397, 701
N.E.2d 1063, 1079 (1998). This court may dispose of a claim on prejudice grounds alone,
without deciding whether counsel’s performance was deficient. People v. Munson, 171 Ill. 2d
158, 184, 662 N.E.2d 1265, 1276 (1996).
¶ 27 Defendant asserts his amended postconviction petition makes a substantial showing his
trial counsel provided ineffective assistance by failing to perfect his right to appeal by filing a
motion to withdraw his guilty plea. Specifically, defendant asserts (1) counsel provided
constitutionally deficient performance by failing to file a motion to withdraw his guilty plea
after he requested counsel do so and (2) his addendum to his postconviction petition alleged
grounds that could have been presented in a motion to withdraw his guilty plea.
¶ 28 Under the second prong of Strickland, defendant cites our supreme court’s decision in
People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001), for the proposition a showing of
prejudice at the second stage of postconviction proceedings requires him only to allege
grounds that could have been presented in the motion to withdraw his guilty plea. In Edwards,
our supreme court held, where a defendant alleges counsel failed to perfect his appeal by first
filing a motion to withdraw the guilty plea, prejudice is presumed at the first stage of
postconviction proceedings. Id. at 257, 757 N.E.2d at 452. It reasoned:
“Whether *** defense counsel’s decision not to file a motion to withdraw the guilty
plea constitutes ineffective assistance of counsel requires the appointment of an
attorney who will be able to consult with defendant regarding his claim and explore in
more detail the factual and legal ramifications of defendant’s claim.” Id., 757 N.E.2d at
452-53.
The court explicitly limited its holding to whether the trial court erred in dismissing the
defendant’s postconviction petition at the first stage of the postconviction proceedings. Id., 757
N.E.2d at 453. In doing so, the court explained:
“To merit an evidentiary hearing on his claim that he told his trial counsel to file a
motion to withdraw his guilty plea and that counsel was constitutionally ineffective for
failing to do so, defendant will have to make a substantial showing to that effect. See
Coleman, 183 Ill. 2d at 381, 701 N.E.2d [at 1072]. Such a showing will necessarily
entail some explanation of the grounds that could have been presented in the motion to
withdraw the plea. Since defendant will be at the second stage of the post-conviction
proceedings and will be represented by an attorney, rather than proceeding pro se, this
will not present an unreasonable burden.” Id. at 257-58, 757 N.E.2d at 453.
¶ 29 Conversely, the State cites the Second District’s decision in People v. Gomez, 409 Ill. App.
3d 335, 947 N.E.2d 343 (2011), for the proposition a showing of prejudice at the second stage
of postconviction proceedings requires a defendant “must explain his grounds for moving to
withdraw his plea and establish a reasonable probability that the motion would have been
granted.” In Gomez, the defendant argued prejudice must be presumed where his trial counsel
failed to file a motion to withdraw his guilty plea after being requested to do so. Id. at 339, 947
N.E.2d at 347. The Second District rejected defendant’s argument, finding, in part:
-6-
“Because defendant’s petition survived summary dismissal, he had to establish at stage
two, pursuant to Edwards, on what justifiable basis he could have moved to withdraw
his guilty plea and that there was a reasonable probability that the motion would have
been granted allowing defendant to withdraw his plea of guilty.” Id. at 340, 947 N.E.2d
at 348.
¶ 30 After considering the parties’ arguments, we find the State’s position to be persuasive. As
our courts have long held, to avoid dismissal at the second stage of postconviction
proceedings, a postconviction petition must make a “substantial showing” of a constitutional
violation. Coleman, 183 Ill. 2d at 381, 701 N.E.2d at 1072 (cases cited therein). In fact, in
Edwards, 197 Ill. 2d at 257-58, 757 N.E.2d at 453, the supreme court, citing Coleman, made it
clear the defendant was entitled to an evidentiary hearing only if he made a “substantial
showing” he told counsel to file a motion to withdraw the guilty plea and counsel was
constitutionally ineffective for failing to do so. Were we to accept defendant’s position, a
defendant would be entitled to an evidentiary hearing as long as he or she alleged some ground
that could have been raised in a motion to withdraw the guilty plea, regardless of whether that
ground is wholly arbitrary or fanciful. Defendant’s position runs afoul of the standard by which
our courts have consistently evaluated petitions at the second stage of postconviction
proceedings. We conclude, to establish prejudice at the second stage of postconviction
proceedings, a postconviction petition must not only allege grounds that could have been
presented in a motion to withdraw the guilty plea but also show a reasonable probability the
motion would be granted on those grounds. See Gomez, 409 Ill. App. 3d at 340, 947 N.E.2d at
348. Such a requirement does not impose an unreasonable burden on a defendant who will be
represented by counsel at this stage of the postconviction proceedings. See Edwards, 197 Ill.
2d at 258, 757 N.E.2d at 453.
¶ 31 Even under this standard, defendant suggests he has established prejudice because his
addendum to his postconviction petition alleged grounds by which it is reasonably probable he
would have been allowed to withdraw his guilty plea. Specifically, defendant suggests he
would have been entitled to withdraw his guilty plea because his trial counsel provided
ineffective assistance when he affirmatively misadvised him as to a plausible defense and the
availability of the lesser-included offense of second degree murder.
¶ 32 A defendant has no absolute right to withdraw a plea of guilty. People v. Delvillar, 235 Ill.
2d 507, 520, 922 N.E.2d 330, 338 (2009). “Rather, he must show ‘a manifest injustice under
the facts involved’ to obtain leave to withdraw his plea.” People v. Jamison, 197 Ill. 2d 135,
163, 756 N.E.2d 788, 802 (2001) (quoting People v. Pullen, 192 Ill. 2d 36, 39, 733 N.E.2d
1235, 1237 (2000)). “In considering such a motion, the court shall evaluate whether the guilty
plea was entered through a misapprehension of the facts or of the law, or if there is doubt of the
guilt of the accused and the ends of justice would better be served by submitting the case to a
trial.” Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237. “A defendant may enter a guilty plea
because of some erroneous advice by counsel, but that fact alone does not destroy the
voluntary nature of the plea ***.” People v. Cunningham, 286 Ill. App. 3d 346, 349, 676
N.E.2d 998, 1001 (1997). Rather, the defendant must establish he was provided ineffective
assistance to demonstrate the plea was involuntary. People v. Edmonson, 408 Ill. App. 3d 880,
884, 946 N.E.2d 997, 1001 (2011); People v. Clark, 386 Ill. App. 3d 673, 676, 899 N.E.2d 342,
345 (2008). Again, under Strickland, a defendant must show (1) counsel’s performance was
-7-
objectively unreasonable and (2) the deficient performance resulted in prejudice. Strickland,
466 U.S. at 687; Hughes, 2012 IL 112817, ¶ 44, 983 N.E.2d 439.
¶ 33 Initially, under the second prong of Strickland, both defendant and the State presented
argument under our supreme court’s decisions in People v. Hall, 217 Ill. 2d 324, 841 N.E.2d
913 (2005), and Hughes. Following the briefing in this case, defendant filed a motion to cite
additional authority, Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958 (2017), which this
court granted. In his motion, defendant asserted the Supreme Court’s decision in Lee is directly
at odds with our supreme court’s decisions in Hall and Hughes. We conclude we need not
address defendant’s argument as his claims are fatally flawed in another respect.
¶ 34 Defendant alleged his trial counsel’s performance “deprived [him] of his right to present
one of the defenses available to the charges outstanding against [him]” and “[t]hat in counsel’s
effort to obtain [his] approval of the [plea] offer, counsel informed [him] that, at trial, he would
not be entitled to an instruction of a lesser included charge, at a time counsel knew that said
possibility did exist.” Defendant did not allege he would have not pleaded guilty but would
instead have gone to trial had he been correctly informed (1) self-defense included defense of
another and (2) a lesser-included offense instruction was available at trial. He further did not
allege he would have chosen to submit the defense-of-another or lesser-included offense jury
instructions. Defendant, in effect, raised only the violation of his right to choose. Defendant
suggests he sufficiently alleged prejudice based on his statement in his first affidavit indicating
he pleaded guilty because he felt like he was in a “no win” situation. His statement, however, is
both vague and conclusory. We find defendant’s amended postconviction petition failed to
establish the necessary showing of prejudice. See Hill v. Lockhart, 474 U.S. 52, 60 (1985)
(finding the petitioner failed to establish prejudice where he did not allege he would have
pleaded not guilty and insisted on going to trial had counsel correctly informed him of his
parole eligibility date); People v. Rivera, 2014 IL App (2d) 120884, ¶ 13, 5 N.E.3d 745
(finding the defendant failed to establish prejudice where he raised only the violation of his
right to choose whether to submit a jury instruction); People v. Barkes, 399 Ill. App. 3d 980,
990-91, 928 N.E.2d 102, 113 (2010) (finding an evidentiary hearing was not warranted on
those claims that were vague or conclusory and failed to show the defendant’s specific wishes
were frustrated); Coleman, 183 Ill. 2d at 381, 701 N.E.2d at 1072 (noting nonspecific
assertions, which merely amount to conclusions, are not sufficient to require an evidentiary
hearing).
¶ 35 Because defendant’s amended postconviction petition fails to show he was prejudiced by
the advice his trial counsel rendered, his independent claims of ineffective assistance must fail.
Because defendant has failed to allege grounds by which it is reasonably probable he would
have been allowed to withdraw his guilty plea, his claim of ineffective assistance for trial
counsel’s failure to file a motion to withdraw his guilty plea must also fail. We find the trial
court properly dismissed defendant’s amended postconviction petition as it failed to make a
substantial showing of a constitutional violation.
¶ 36 B. Postconviction Counsel’s Performance
¶ 37 Defendant contends his postconviction counsel provided unreasonable assistance by
including a claim of ineffective assistance for trial counsel’s failure to file a motion to suppress
his in-custody statements without supporting it with proper evidentiary material.
-8-
¶ 38 At the second stage of postconviction proceedings, a defendant is entitled to a “reasonable”
level of assistance. People v. Cotto, 2016 IL 119006, ¶ 42, 51 N.E.3d 802. To ensure counsel
provides a reasonable level of assistance, Illinois Supreme Court Rule 651(c) imposes specific
duties on postconviction counsel. People v. Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977, 979
(2007). Rule 651(c) requires postconviction counsel to (1) consult with the defendant to
ascertain his contentions of the deprivation of constitutional rights, (2) examine the record of
the trial court proceedings, and (3) make any amendments to the defendant’s pro se petition
necessary to adequately present the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
¶ 39 “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, 67 N.E.3d 976. Our supreme court has also stated, “[i]n the ordinary case, a trial
court ruling upon a motion to dismiss a post-conviction petition which is not supported by
affidavits or other documents may reasonably presume that post-conviction counsel made a
concerted effort to obtain affidavits in support of the post-conviction claims, but was unable to
do so.” People v. Johnson, 154 Ill. 2d 227, 241, 609 N.E.2d 304, 311 (1993).
¶ 40 Defendant does not dispute his postconviction counsel filed a certificate in compliance
with Illinois Supreme Court Rule 651(c), thereby giving rise to the presumption counsel
complied with the rule and provided reasonable assistance. Defendant asserts, however, that
presumption has been rebutted where his counsel attached only his notarized statement to his
petition, which made a bare allegation he was under the influence of marijuana, cocaine, and
alcohol, without any “showing he no longer had the capacity to waive his rights.” Defendant
fails to consider or address the fact his counsel also provided the trial court with his second
personal affidavit in support of his claim. Defendant further fails to allege what additional
supporting documentation his postconviction counsel could have attached to his petition to
show he no longer had the capacity to waive his rights. See People v. Malone, 2017 IL App
(3d) 140165, ¶ 10, 74 N.E.3d 24 (“Absent a showing of available material for supporting
affidavits, a failure to present affidavits obviously cannot be considered a neglect by the
attorney.” (Internal quotation marks omitted.)). Given the arguments presented, we find
defendant has failed to rebut the presumption his postconviction counsel provided reasonable
assistance.
¶ 41 C. Clerk-Imposed Fines
¶ 42 Defendant argues the circuit clerk improperly imposed fines against him. Specifically,
defendant complains of the following assessments: (1) a $5 Crime Stoppers assessment, (2) a
$5 youth diversion assessment, (3) a $25 violent crime victims assistance assessment, and (4) a
$10 arrestee’s medical assessment. The State concedes these assessments should be vacated as
they are fines improperly imposed by the circuit clerk.
¶ 43 The imposition of a fine is exclusively a judicial act. People v. Smith, 2014 IL App (4th)
121118, ¶ 18, 18 N.E.3d 912. A circuit clerk has no authority to impose fines, and any fines
imposed by the circuit clerk are void from their inception. See People v. Warren, 2016 IL App
(4th) 120721-B, ¶ 89, 55 N.E.3d 117. Where a circuit clerk imposed fines, a reviewing court
must only vacate them, because a remand for the trial court to correct such an error results in an
impermissible increase in the defendant’s sentence on remand, which goes against our
supreme court’s decision in People v. Castleberry, 2015 IL 116916, ¶ 25, 43 N.E.3d 932.
People v. Daily, 2016 IL App (4th) 150588, ¶ 30, 74 N.E.3d 15.
-9-
¶ 44 The record is devoid of an order, written or oral, by the trial court judge authorizing the
imposition of the assessments defendant challenges. Instead, the circuit clerk imposed them.
The $5 Crime Stoppers assessment is a fine. 730 ILCS 5/5-6-3(b)(13) (West 2010); People v.
Hible, 2016 IL App (4th) 131096, ¶ 18, 53 N.E.3d 319. The $5 youth diversion assessment is a
fine. 55 ILCS 5/5-1101(e) (West 2010); People v. Graves, 235 Ill. 2d 244, 251, 919 N.E.2d
906, 910 (2009). The $25 violent crime victims assistance assessment is a fine. 725 ILCS
240/10(c)(1) (West 2010); Smith, 2014 IL App (4th) 121118, ¶ 63, 18 N.E.3d 912. The $10
arrestee’s medical assessment is a fine. 730 ILCS 125/17 (West 2010); Warren, 2016 IL App
(4th) 120721-B, ¶ 119, 55 N.E.3d 117. Because the circuit clerk improperly imposed these
fines, we vacate them.
¶ 45 III. CONCLUSION
¶ 46 We (1) affirm the trial court’s dismissal of defendant’s amended postconviction petition;
(2) vacate the $5 Crime Stoppers assessment, $5 youth diversion assessment, $25 violent
crime victims assistance assessment, and $10 arrestee’s medical assessment; and (3) award the
State its $75 statutory assessment as costs of this appeal (55 ILCS 5/4-2002(a) (West 2016)).
¶ 47 Affirmed in part and vacated in part.
- 10 -