People v. Rouse ( 2020 )

2020 IL App (1st) 170491Opinion filed November 4, 2020
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 17598
)
WILLIAM A. ROUSE II, ) Honorable
) James N. Karahalios,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 Defendant William A. Rouse II appeals the trial court’s order granting the State’s motion
to dismiss his pro se postconviction petition for relief filed under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2014)). He contends that (1) he made a substantial showing
that his trial counsel was ineffective for misadvising him on the minimum sentence for a lesser-
included offense, causing him to reject a jury instruction on the lesser-included offense, and (2) he
did not knowingly waive his right to postconviction counsel. For the following reasons, we affirm.
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¶2 Following a 2011 jury trial, defendant was convicted of three counts of aggravated criminal
sexual assault (ACSA) and sentenced to three consecutive terms of 6 years’ imprisonment, for a
total sentence of 18 years. We set forth the facts in defendant’s direct appeal (People v. Rouse,
2014 IL App (1st) 111302-U), and we recite them here to the extent necessary to our disposition.
¶3 Defendant was charged with three counts of ACSA for using force or threat of force to
penetrate the victim, G.K., vaginally, anally, and orally and acting in such a manner as to threaten
or endanger her life. He was represented by private counsel, James P. Casement and Gregory Reed.
At trial, G.K. testified that she worked with defendant’s wife, Kelly Rouse, and socialized at
defendant’s house in the past. On September 10, 2010, G.K. was at defendant’s house after work
and planned to spend the night. G.K. had a glass of wine before dinner and another with her meal.
She acknowledged that she had been prescribed Adderall, Zoloft, trazodone, and clonazepam and
knew she was not supposed to drink while on her medication. Nevertheless, G.K. took her Adderall
dosage at defendant’s house. Defendant’s friend Joseph Perez was also there for part of the time.
¶4 After Kelly went to bed and Perez left, defendant and G.K. watched television on the couch.
Defendant grabbed G.K.’s hair, pushed her head down, and rubbed his penis on her face.
Defendant’s penis went into G.K.’s mouth multiple times, causing her to gag and choke. Although
G.K. attempted to get away from defendant, he bent her over the couch with her face pushed into
the cushions. G.K. stopped struggling after defendant threatened to “break [her] f*** neck.” He
pulled G.K.’s pants down and touched the tip of his penis to her vagina and anus. Defendant
inserted his penis into her vagina after she covered her anus with her hands.
¶5 G.K. was able to escape after approximately 20 minutes and fled into the garage where she
grabbed a pipe. She ran to a busy street and fell to the ground where a man, Anthony DiCaro,
approached her. After she told DiCaro what happened, he called the police. G.K. acknowledged
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she was “freaked out” when paramedics arrived and had to be strapped down. She remained
frightened because she believed she could hear defendant’s voice. Upon presenting at the hospital,
G.K. told a nurse about the attack by defendant. She did not remember telling any emergency
personnel that she was “unsure” about whether defendant had penetrated her.
¶6 DiCaro corroborated G.K.’s version of events. He observed her on the sidewalk at
approximately 5 a.m. on the corner of Devon Avenue and Arlington Heights Road when he was
driving home from work. G.K.’s shirt was ripped, her pants were unzipped and unbuttoned, and
she was not wearing socks or shoes or carrying a purse. G.K. was crying and holding a metal pipe.
She told him that her friend’s husband attacked her while they watched television and her friend
was asleep. G.K. did not state she had been partying or drinking, and she did not appear to have
been drinking or doing drugs. DiCaro did not notice any odor of alcohol. He told police what G.K.
told him about the attack.
¶7 Dr. John Ortinau treated G.K. in the emergency room on September 11, 2010. She was
visibly upset and reported that she had been sexually assaulted. G.K. relayed that a man forced his
penis into her mouth and attempted to penetrate her vagina and anus. The man pushed her face
into couch cushions, and her vagina and neck were sore. G.K. was certain that the man forced his
penis into her mouth; however, she was unsure whether the man penetrated her vagina and anus
due to how quickly the attack had taken place.
¶8 Dr. Ortinau observed bruising on G.K.’s upper arms and forearms and redness on her neck
and knees. She did not have visible trauma to her vagina or anus, which was not uncommon in
sexual assault cases where the victim was not a virgin and where no foreign objects were used for
penetration. G.K. reported she was on various prescription drugs, but Dr. Ortinau did not order
toxicology tests. He did not note that G.K. appeared intoxicated, which was normal practice if a
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patient appeared impaired. Dr. Ortinau did not notice anything unusual about G.K.’s pupils. Her
pulse rate was elevated, which was not unusual in a patient who had been sexually assaulted. He
acknowledged that an elevated heart rate would also be expected in a patient on
methamphetamines.
¶9 Elk Grove Village police officer John Suarez testified that he responded to G.K.’s and
DiCaro’s location on September 11, 2010. G.K. was “crying, hyperventilating, and repeating that
she was attacked.” Her hair was messy, and her clothes were disheveled. Suarez then went to
defendant’s residence, where he met Kelly and defendant, who was sitting on a couch in the living
room wearing jeans but no shoes, socks, or shirt. Defendant acknowledged that G.K. had been
there and that they had been drinking alcohol, but he did not know that G.K. had left the house.
Defendant was “perfectly willing to cooperate” with the police, but Suarez did not believe that
defendant was being truthful.
¶ 10 Suarez completed a police report in this case but did not include his observations that G.K.
was crying and hysterical or that her hair and clothing appeared to be in disarray. Suarez included
in the report that G.K. admitted to drinking alcohol, her eyes were glassy, and she smelled of
alcohol; however, he did not include defendant’s admission that he had been drinking also.
¶ 11 Elk Grove police officer Brian Vivona testified that he photographed G.K. while she was
in the hospital. Vivona then went to defendant’s residence to take photographs of the crime scene.
Kelly and defendant’s mother-in-law were present at that time. Vivona denied manipulating
anything before taking photographs.
¶ 12 Kelly Rouse testified for the defense that G.K. was intoxicated every time they socialized
outside of work. They both snorted Adderall on several occasions, including the night in question,
when they each snorted four capsules. They also were drinking wine that night.
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¶ 13 Dr. Alan Jaffe, a licensed clinical psychologist who did not treat G.K., testified that a
person who ingested 120 milligrams or more of Adderall would have an increased heart rate. Those
who ingest Adderall while drinking alcohol would likely experience disorientation and have
difficulty engaging in rational thinking and could experience auditory, visual, and olfactory
hallucinations. He acknowledged he did not know whether G.K. was on Adderall at the time of
the attack and conceded her medical records gave no indication that she was delusional or
hallucinating when she presented at the hospital. He viewed photographs of G.K. and stated her
pupils appeared to be dilated, which is expected in a person who has ingested methamphetamine.
¶ 14 Perez testified that on September 10, 2010, he observed Kelly and G.K. snorting Adderall
and drinking what he estimated was an entire box of wine while he was present. He acknowledged
that he was also snorting Adderall and drinking vodka but denied being intoxicated. Perez left
defendant’s residence around 1 a.m. on September 11, 2010, and received a call from G.K. at some
point after. He believed G.K. was intoxicated because she was slurring her words and could not
hold a coherent conversation.
¶ 15 Perez received a call to report to the Elk Grove Village police station at around 6 a.m. He
told Detective George Winkler that he saw G.K. drink wine and believed she was intoxicated. He
did not mention that Kelly and G.K. snorted Adderall because the Rouses had a baby and he did
not want to cause an investigation by the Illinois Department of Children and Family Services.
¶ 16 Officer James Chmelik spoke to G.K. on September 11, 2010, at the intersection of Devon
Avenue and Arlington Heights Road. G.K. was crying and barefoot, and her hair was disheveled.
He noticed that she smelled of alcohol and appeared intoxicated. G.K. reported that she had
consumed four to six drinks at Kelly’s house and that defendant attacked her as they sat on a couch.
She explained that defendant rubbed his arm and shoulder against her and then forced her head
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towards his groin and inserted his penis into her mouth. Defendant pushed her against the couch,
pulled her pants down, and attempted to insert his penis into her anus. He was unable to do so and
then inserted his penis into her vagina. G.K. did not mention using drugs that evening.
¶ 17 Registered nurse Lisa Romanski treated G.K. when she arrived in the emergency room.
G.K. was alert and able to communicate but was tearful and spoke in a low voice. She did not seem
to be delusional or experiencing hallucinations, but Romanski noted that her pupils appeared to be
dilated and that her hair was tangled. Romanski observed redness on G.K.’s knees and a bruise on
her left arm. G.K. reported defendant forced his penis into her mouth, anus, and vagina. Romanski
thereafter drew blood from G.K. and completed a rape kit.
¶ 18 Detective George Winkler interviewed G.K. in the emergency room. She reported that she
had consumed four to six glasses of wine the previous night. G.K., Kelly, and Perez did not
mention using drugs during their various interviews. Winkler confirmed that he interviewed
defendant prior to his arrest. Defendant was approximately 6 feet tall and weighed approximately
205 to 210 pounds. Winkler did not observe any marks or signs of bruising on defendant’s body
at that time.
¶ 19 Elk Grove Village paramedics John Lodewyk and Matthew Bonilla attended to G.K. on
September 11, 2010. Lodewyk did not remember whether G.K. had appeared intoxicated at the
time, but he remembered that she was not wearing shoes. Bonilla remembered that G.K. smelled
of alcohol and was difficult to get into the ambulance because she was upset and afraid.
¶ 20 Jolie McGrath, who worked with G.K., testified that she socialized with G.K. outside of
work and G.K. would “get pretty drunk.” McGrath had witnessed G.K. hungover 10 to 15 times
over the course of two years. She also observed G.K. come to work intoxicated twice.
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¶ 21 The parties stipulated that the vaginal swabs taken from G.K. during the rape kit did not
contain a sufficient amount of DNA for analysis.
¶ 22 During the jury instruction conference, the following colloquy took place:
“THE COURT: All right. Gentlemen, in reviewing these and thinking about the
case, which is my job, from the evidence it could be argued that the acts of the defendant
were attempted and not completed. So I will offer the attempt, actual attempt of these acts
as a lesser included. What would you like the court to do?
[DEFENSE COUNSEL CASEMENT]: Your Honor, at this time we would not
want the lesser included in the jury instructions.
THE COURT: So you’re asking the court not to give the attempt instruction?
[CASEMENT]: That is correct.
THE COURT: As to each of these acts?
[CASEMENT]: As to each of these acts.
THE COURT: Is that correct, [defense counsel] Reed?
[DEFENSE COUNSEL REED]: Yes, your Honor.
THE COURT: Is this based on your strategy in the case?
[CASEMENT]: That is correct.
THE COURT: You have to answer.
[REED]: Yes, your Honor.
THE COURT: [Defendant], do you agree with that strategy of your lawyers?
[DEFENDANT]: I do, your Honor.”
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¶ 23 The jury then found defendant guilty of all three counts of ACSA. The court sentenced
defendant to 3 consecutive sentences of 6 years, for a total sentence of 18 years’ imprisonment.
¶ 24 On direct appeal, we affirmed defendant’s convictions, finding the evidence sufficient to
prove him guilty beyond a reasonable doubt of ACSA and finding he was not denied effective
assistance of counsel at trial. Rouse, 2014 IL App (1st) 111302-U, ¶¶ 38, 40-50.
¶ 25 On March 6, 2015, defendant filed a pro se petition for relief under the Act raising multiple
claims. Relevant here, defendant argued he received ineffective assistance from trial counsel when
they provided erroneous advice regarding the sentencing range of the lesser-included offense of
attempted ACSA. Defendant argued that his trial attorneys informed him that the sentences for
three counts of attempted ACSA would run consecutively and, therefore, defendant would face a
sentencing range of 12 to 45 years if convicted of three counts of attempted ACSA. Defendant
stated counsel advised him not to accept a jury instruction on attempted ACSA because the State
“had not even come close to proving their case beyond a reasonable doubt, and that including a
lesser included would possibly give the jury a reason to come up with a compromised verdict.” He
claimed his attorneys never discussed with him the possibility that the three sentences for attempt
would run concurrently, for a sentencing range of 4 to 15 years. Ultimately, defendant decided not
to instruct the jury on attempted ASCA. He acknowledged that the court informed him it was his
choice whether to include the attempt instructions. Defendant contended his decision to reject the
attempt instruction was based on counsel’s “grossly inaccurate advice,” which constituted
deficient performance. He claimed he was prejudiced because, had he been correctly informed of
the 4- to 15-year sentencing range, he would have opted to have the jury instructed on attempted
ACSA.
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¶ 26 In support of his petition, defendant attached, in relevant part, affidavits from his trial
attorneys Casement and Reed and his own affidavit.
¶ 27 Casement averred to the following. During jury instructions, the trial court stated “attempt
criminal sexual assault was appropriate for this case.” Casement and Reed advised defendant that
the sentencing range for each attempted CSA would be 4 to 15 years but would be served
consecutively, for a total sentence of 12 to 45 years, if convicted of all three counts. “The decision
to accept a lesser included was [defendant’s],” but Casement advised defendant against instructing
the jury on attempted ACSA because he believed the State did not meet its burden of proof and
“including a lesser included would possibly give the jury a reason to come up with a compromise
verdict.” Defendant approved that strategy, reasoning there was little difference between a 12- or
18-year minimum sentence. There was no discussion of the sentences for the attempt counts
running concurrently. Reed’s affidavit was nearly verbatim to Casement’s.
¶ 28 In his own affidavit, defendant averred Reed and Casement informed him he would likely
face a sentence in the “lower end of the sentencing range” due to his lack of criminal history. Prior
to the jury instruction conference, his attorneys never discussed with him the possibility that he
would receive a sentence of less than 18 years. Counsel advised him that each of the three charges
of ACSA was a Class X felony with a range of 6 to 30 years’ imprisonment that he would serve
consecutively for a total of 18 to 90 years, if convicted. During the jury instruction conference, the
court informed defendant that “attempted criminal sexual assault was appropriate for this case.”
Counsel told defendant that each count of attempted ACSA carried a 4- to 15-year sentencing
range, which would also run consecutively for a sentencing range of 12 to 45 years if convicted on
all three counts. Counsel advised against instructing the jury on attempt because the State had not
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proved their case beyond a reasonable doubt and instructing the jury on a lesser offense would
encourage the jury to reach a compromised verdict.
¶ 29 Defendant further averred that he “approved” counsel’s strategy and made the decision not
to instruct the jury on attempted ACSA, reasoning
“There was no difference between minimum sentences of 12 or 18 years, life as I knew it
would be over. My career would be lost to me, I would miss my children grow up, and my
wife would not stick around if sentenced to such a lengthy amount of time.”
There was no discussion that the sentences on the attempted ACSA counts would run concurrently.
Had he been properly advised that the attempt offenses would run concurrently for a sentencing
range of 4 to 15 years, “given the significant disparity in sentencing ranges,” defendant would have
“accepted the terms and instructed defense counsel to submit those jury instructions.”
¶ 30 On June 19, 2015, the court docketed the petition for second-stage proceedings, finding
“[i]t appears the defendant does allege matters of constitutional import.” The court appointed the
Office of the Public Defender to represent defendant.
¶ 31 On February 26, 2016, a public defender not representing defendant appeared and informed
the court that postconviction counsel was “still investigating the claims that are in the post
conviction.”
¶ 32 On May 13, 2016, postconviction counsel filed a certificate pursuant to Illinois Supreme
Court Rule 651(c) (eff. Feb. 6, 2013). In her certificate, postconviction counsel stated that she
(1) consulted with defendant by mail to ascertain his contentions of deprivations of his
constitutional rights; (2) examined the petition and consulted with defendant about claims raised
in the petition and issues he raised in correspondences; (3) examined Casement’s and Reed’s trial
file, including police reports, forensic reports, photographs entered into evidence at trial, and
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G.K.’s hospital records; (4) obtained and examined the report of proceedings and common-law
records for defendant’s direct appeal as well as the file maintained by the clerk of the circuit court;
(5) examined crime scene photographs but did not view supplemental volumes of photographs or
photographs of G.K.’s injuries entered into evidence in the appellate record because defendant’s
argument on direct appeal that the evidence was insufficient to convict him was rejected;
(6) examined this court’s order filed pursuant to Illinois Supreme Court Rule 23(b) (eff. July 1,
2011) on defendant’s direct appeal (Rouse, 2014 IL App (1st) 111302-U), the State’s motion for
leave to supplement the record on appeal, and the briefs submitted on direct appeal; (7) examined
defendant’s pro se petition and concluded it adequately presented his claims of deprivations of
constitutional rights and “there is nothing that can be added by and [sic] amended or a supplemental
petition”; and (8) examined “the record of proceedings at the jury trial, and have not made any
amendments to the petitions [sic] filed pro se because his pro se petition made an adequate
presentation of [defendant’s] claims.”
¶ 33 On August 26, 2016, the State filed a motion to dismiss defendant’s petition.
¶ 34 On September 27, 2016, defendant sent a pro se letter to the trial court, requesting to
“dismiss court appointed counsel and proceed pro se.” In his letter, defendant detailed that he
decided to represent himself following “correspondence” between himself and postconviction
counsel. He stated that, in a letter dated August 31, 2015, postconviction counsel stated, “From
my experience, Judge Fecarotta does not allow court appointed counsel to withdraw even if they
argue that the pro se petition lacks an arguable basis in law and fact. I disagree since I do believe
that parties have a constitutional right to represent themselves.” Defendant’s letter further detailed
that in a letter dated May 11, 2016, postconviction counsel stated,
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“I will not amend or supplement your pro se petition. A post-conviction attorney
can stand on the petition, or withdraw as counsel if the pleadings are frivolous. *** The
problem is that the jury found you guilty of 3 counts of the class x [sic] [ACSA];
consequently, you cannot establish any prejudice since there was sufficient evidence for
the jury to find you guilty of the class x [sic] felony. *** You have the option to represent
yourself if you disagree with my analysis.”
¶ 35 In his letter, defendant further stated that “[t]he decision by [postconviction counsel] not
to amend the petition is one that appears to be consistent with her beliefs as well as the law.”
Defendant, however, was concerned that she “reached this decision prior to receiving the State’s
motion to dismiss.” Defendant complained that postconviction counsel failed to confer with him
“to see if it was possible to ‘shore up’ the argument for prejudice.” Finally, he quoted an August
26, 2016, letter from postconviction counsel, which he alleged stated, “there is only a remote
possibility that the current sitting judge will grant us an evidentiary hearing.” Defendant believed
that statement was “much more optimistic” than her earlier statements that he could not show
prejudice. Because there was a possibility of an evidentiary hearing, defendant stated that his
petition was not frivolous. Defendant concluded that he disagreed with postconviction counsel’s
assessment of his case but stated, “as a lay person, [he] [was] in way over his head and ha[d]
concerns about procedural defaults as well as how this decision could affect his ability to appeal
an unfavorable decision.” Defendant “reluctantly” requested that the court “relieve” court-
appointed counsel and allow him leave to represent himself, “as he feels he has no other choice.”
¶ 36 On November 18, 2016, postconviction counsel appeared before the court. She noted that
she “believe[d] [she] discharged 651(c) duties” and did not act unreasonably.
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¶ 37 On February 17, 2017, the court held a hearing on defendant’s “petition to proceed pro se.”
The court first inquired whether postconviction counsel had prepared a response to the State’s
motion to dismiss. Postconviction counsel stated, “No, your Honor. I elected not to prepare a
written response and would be prepared to—I was prepared to answer orally, and so, that was a
legitimate constitutionally permissible strategy.” The following then occurred on the record:
“THE COURT: Now, [defendant], if I allow you to fire your lawyer and proceed
to represent yourself, the next step in this is that you would have to file a response to the
State’s motion to dismiss the petition.
So if you want to undertake that, we’ll proceed with a hearing on your being
allowed to do that. If you want the public defender to continue to represent you insofar as
at least handling this motion to dismiss, we can do that as well. Do you want to talk to the
public defender for a moment so that you fully grasp the situation?
[DEFENDANT]: I would appreciate that, your Honor.”
¶ 38 The court passed the case, and defendant spoke off the record with postconviction counsel.
When the court recalled the case, defendant told the court, “At this time I wish to proceed pro se,
your Honor.” He also informed the court that he had prepared a response to the State’s motion to
dismiss and was ready to both file his response and argue it. Prior to addressing the motion to
dismiss, the court admonished defendant:
“THE COURT: [T]he Illinois Supreme Court has passed a rule that is required to
be read to you before you proceed to represent yourself, okay, and it’s called Supreme
Court Rule 401. Now, I’m going to read it to you slowly. If there’s anything you don’t
understand, you’ll let me know and I’ll explain it; okay?
[DEFENDANT]: Yes.
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THE COURT: All right. Any waiver of counsel shall be in open court. We’re in
open court. The court shall not permit a waiver of counsel by a person accused of an offense
punishable by imprisonment—you are imprisoned—without first, by addressing the
defendant personally—and I’m talking to you personally—in open court and informing
him of and determining that he understands the following:
Number 1, which is the nature of the charge. In this case, you are already convicted
of aggravated criminal sexual assault, and you are serving a sentence. The nature of the
matter which is pending is whether or not you can get relief from that conviction and
sentence during these proceedings, and that’s why it’s called a postconviction petition. So
do you understand that?
[DEFENDANT]: Yes, your Honor.
THE COURT: All right. And you understand that if you’re not successful in getting
relief, then the sentence—the conviction and sentence that you already have will remain as
it is. Do you understand that?
THE COURT: All right. What is it that you’re sentenced to, how much?
[DEFENDANT]: 18 years at 85 percent, [6] years per count.
THE COURT: Okay. So, then you understand the amount of time that’s at stake
here in this proceeding?
[DEFENDANT]: Yes, your Honor.
THE COURT: Okay. Next, that you have a right to have counsel, and if you are
indigent—meaning you don’t have any money to afford counsel—that counsel will be
appointed for you by the Court. And that’s already been determined, because you’re in
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prison you don’t have any money. And counsel, the Public Defender’s Office, has already
been appointed for you.
So it’s important for you to understand that you have a free lawyer in the Public
Defender, and if you want, that lawyer will continue to represent you for free if that’s what
you want. Do you understand that?
[DEFENDANT]: Yes, your Honor.
THE COURT: All right. Now, the part that is not in *** the rule which I usually
add is this: As you already know, these are legal proceedings that deal with rules of law
that have certain requirements and technicalities. You understand that?
[DEFENDANT]: Yes, your Honor.
THE COURT: All right. You’re going to be facing—instead of your lawyer, you’re
going to be facing an opponent, the State’s Attorney’s Office, who has lawyers that are
skilled in postconviction proceedings just like this. And, obviously—and I know that you
know this, so I’m not talking down to you but I want to make sure that the record is clear
and that you understand everything completely.
These lawyers have gone to law school, they’ve received an education, they’ve
passed an examination, a bar examination, in order to practice, which shows, again,
proficiency, and then they’ve had years and years of experience in handling these kinds of
cases. So the bottom line is that you’re going to be going up against someone who is skilled.
You’re not going to be going up against a fellow inmate who is also not a lawyer. You’re
not a lawyer; you’re going to be facing a lawyer. That, to me, is not a wise idea. But it’s
your decision; it’s not mine. I can only tell you what I think.
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The second thing is that I can’t change the rules for you because you’re not a
lawyer. In other words, the rules are the rules, and both sides have to comply with those
rules. They already know what the rules are. All right? I can’t say to you, you know what;
you didn’t comply with the rule, but you’re not a lawyer, so it’s okay, I’ll overlook it. I’m
not allowed to do that.
The analogy that I end up telling everybody is this: If you had appendicitis, would
you operate on yourself or would you go to a surgeon? Okay? You need a surgeon. That’s
my opinion. I wouldn’t operate on myself. But the choice is 100 percent yours. There is no
pressure from me either way, and there can’t be pressure from anybody. So you can do
whatever it is that you want to do.
Now, having advised you of all of that, are you ready to make a decision as to
whether or not you want to go ahead and represent yourself and not have a lawyer do it for
you?
[DEFENDANT]: I feel, your Honor, that I’ve been presented with an either/or
proposition where I have no choice but to proceed pro se.
THE COURT: I don’t understand what that means. I haven’t given you an either/or,
have I?
[DEFENDANT]: No, your Honor. In my correspondence with [postconviction
counsel], she stated that she would not be pursuing a response to the State’s motion to
dismiss and that I could either accept her conclusion or proceed pro se.
THE COURT: Okay.
[DEFENDANT]: Now, I have no intentions of sitting by idly allowing my petition
to be dismissed without response, your Honor.
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THE COURT: Okay. I understand now.
[POSTCONVICTION COUNSEL]: In response, your Honor—
THE COURT: No, no. There’s no response necessary. Just give me a minute.
***
Let the record show there has been a hearing on the defendant’s motion to proceed
pro se. Supreme Court Rule 401(a) has been read and discussed. The defendant is
admonished about that and knows and understands it.
The defendant persists in his demand to proceed pro se, and, therefore, the
defendant’s motion to proceed pro se is granted. The public defender is withdrawn.”
¶ 39 The matter proceeded to a hearing on the State’s motion to dismiss. Defendant reiterated
that he prepared a written pro se response and that he was ready to argue the motion. The State
argued that the claims defendant asserted were largely matters that had been raised and litigated
on direct appeal. With respect to the claim regarding the attempted ACSA instruction, the State
argued the facts did not support an attempt instruction, that issue should have been raised on direct
appeal, and this court found on direct appeal that there was no evidence to show G.K. was uncertain
about her attack.
¶ 40 Defendant read his response in court and abandoned all of his claims except the ineffective
assistance claim relating to counsel’s advice regarding the sentence of attempted ACSA and
defendant’s resulting decision to forgo the attempt instruction. Defendant argued that his
ineffective assistance claim was “entirely dependent” on his trial attorneys’ affidavits, which were
matters outside of the appellate record and therefore could not have been raised on direct appeal.
With respect to prejudice, defendant argued G.K.’s testimony regarding sexual penetration was
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inconsistent and, had the jury been instructed on attempted ACSA, there was a reasonable
probability that it would have found him guilty of the lesser-included offense of attempt.
¶ 41 Defendant acknowledged to the court that his attorneys discussed with him whether attempt
instructions should be submitted to the jury. He confirmed that the trial court ruled that the attempt
instructions, if requested, would have been submitted to the jury. Finally, defendant acknowledged
that he declined to ask for jury instructions on attempt. He clarified that the attempt counts did not
carry mandatory consecutive sentences and therefore could have been served concurrently. The
trial court responded,
“But it’s not mandatory to be concurrent. It’s discretionary with the court as to
whether or not to impose consecutive or concurrent sentencing where either one is available
to the judge.
***
So, by advising you of the worst-case scenario, which is consecutive sentences, I
do not find that the advice of the attorneys or discussion by the attorneys is incompetent
representation.
I also find that while I understood everything that you’ve said about the
inconsistencies, which you’ve detailed marvelously, number one, the jury was the finder
of fact, and they bought it beyond a reasonable doubt.”
¶ 42 The court additionally found that “[a]ll of this was discussed on appeal and ruled upon.”
The court granted the State’s motion to dismiss.
¶ 43 On appeal, defendant contends the trial court erroneously dismissed his petition because
he made a substantial showing that trial counsel was ineffective for incorrectly advising him that
sentences for attempted ACSA must be served consecutively for a minimum sentence of 12 years,
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rather than concurrently for a minimum sentence of 4 years, causing him to decline to instruct the
jury on the lesser-included offense of attempted ACSA. We note that during oral arguments before
this court, defendant’s counsel in this appeal did not address defendant’s sentencing claim, but
rather presented argument solely on the issue of whether defendant voluntarily waived his
postconviction counsel.
¶ 44 The Act provides for a three-stage process by which a defendant may assert his conviction
was the result of a substantial denial of his constitutional rights. People v. Beaman, 229 Ill. 2d 56,
71 (2008). At the first stage, the trial court must review the postconviction petition and determine
whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West
2014). If the petition is not dismissed within 90 days at the first stage, counsel is appointed, and it
advances to the second stage. Id. § 122-2.1(a), (b).
¶ 45 This case involves the second stage of postconviction proceedings. At the second stage,
the dismissal of a petition is warranted only when the allegations in the petition, liberally construed
in light of the original trial record, fail to make a substantial showing of a constitutional violation.
People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, the trial court is “concerned merely with
determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity
which would necessitate relief under the Act” (People v. Coleman, 183 Ill. 2d 366, 380 (1998)),
and “all well-pleaded facts that are not positively rebutted by the trial record are to be taken as
true” (People v. Pendleton, 223 Ill. 2d 458, 473 (2006)). The defendant “bears the burden of
making a substantial showing of a constitutional violation.” Id. We review the trial court’s
dismissal of defendant’s postconviction petition without an evidentiary hearing de novo. Id.¶ 46 To determine whether defendant was denied his right to effective assistance of counsel, we
apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
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Enis, 194 Ill. 2d 361, 376 (2000). Defendant must show, first, that “counsel’s representation fell
below an objective standard of reasonableness” (Strickland, 466 U.S. at 687-88) and, second, that
he was prejudiced such that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different” (id. at 694). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome, namely, that
counsel’s deficient performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair.” Enis, 194 Ill. 2d at 376. To prevail on a claim of ineffective assistance, a
defendant must satisfy both prongs of the Strickland test. Id. at 377. Thus, we may proceed directly
to the prejudice prong. Strickland, 466 U.S. at 697 (“[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies.”).
¶ 47 Defendant claims that counsel was ineffective for improperly advising him that any
attempted ACSA convictions would result in consecutive, rather than concurrent, sentences,
thereby causing him to elect not to instruct the jury on attempted ACSA.
¶ 48 In this case, we find defendant failed to make a substantial showing of ineffective
assistance of counsel, as defendant has not substantially shown that he was prejudiced by counsel’s
advice regarding the minimum sentence for the offense of attempted ACSA, in light of the large
amount of evidence against him. See People v. Hale, 2013 IL 113140, ¶ 17 (stating that a reviewing
court “may dispose of an ineffective assistance of counsel claim by proceeding directly to the
prejudice prong without addressing counsel’s performance”).
¶ 49 As charged in this case, a person commits the offense of aggravated criminal sexual assault
when he commits an act of sexual penetration upon the victim by use of force or threat of force
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and acts in such a manner as to threaten or endanger the life of the victim. 720 ILCS 5/12-14(a)(3)
(West 2010). “ ‘Sexual penetration’ ” is defined as:
“any contact, however slight, between the sex organ or anus of one person by an object,
the sex organ, mouth or anus of another person, or any intrusion, however slight, of any
part of the body of one person *** into the sex organ or anus of another person, including
but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen
is not required to prove sexual penetration.” Id. § 12-12(f).
Thus, for purposes of this case, to prove penetration, the State only needed to prove that defendant
made contact, “however slight,” with G.K.’s genitals or mouth using defendant’s penis. See id.
¶ 50 Here, taking as true defendant’s allegation that he would have elected to have the jury
instructed on attempt had he been informed that the sentences for attempted ACSA could have
been concurrent, as we must at this stage (Pendleton, 223 Ill. 2d at 473), we cannot say that there
was a reasonable probability that the result of the proceeding would have been different had that
instruction been given. Attempt is a lesser included offense of ACSA. See 720 ILCS 5/2-9(b)
(West 2010) (“ ‘Included offense’ means an offense which” “[c]onsists of an attempt to commit
the offense charged or an offense included therein.”) “ ‘A defendant is entitled to a lesser included
offense instruction only if the evidence would permit a jury rationally to find the defendant guilty
of the lesser included offense and acquit him or her of the greater offense.’ ” People v.
Parsons, 284 Ill. App. 3d 1049, 1060 (1996) (quoting People v. Novak, 163 Ill. 2d 93, 107-08
(1994)).
¶ 51 The evidence at trial established that defendant forced his penis into G.K.’s mouth and then
bent her over the couch and touched his penis to her anus and vagina before forcing his penis into
her vagina while shoving her face into couch cushions and threatening to break her neck. Although
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defendant complains that G.K.’s testimony was not credible due to her consumption of alcohol
and Adderall, as we noted on direct appeal, G.K.’s accounts of the attack to the various individuals
who assisted and treated her afterward were consistent, and the jury knew of her use of Adderall
and alcohol and still evidently deemed her credible. Rouse, 2014 IL App (1st) 111302-U, ¶ 38.
Thus, the evidence uncontrovertibly showed contact, however slight, between defendant’s penis
and G.K.’s mouth, vagina, and anus and would not permit a jury to reasonably acquit defendant of
the greater ACSA offense. See People v. Stewart, 406 Ill. App. 3d 518, 539 (2010) (finding the
defendant was not prejudiced by the failure to instruct the jury on the lesser-included offense
because the evidence supporting the defendant’s greater offense was so strong); Parsons, 284 Ill.
App. 3d at 1060-61 (same); People v. McClellan, 232 Ill. App. 3d 990, 1008 (1992) (failure to
instruct jury on lesser offense requires reversal only if the defendant was so prejudiced by such
failure so as to affect the outcome of the verdict).
¶ 52 Moreover, defendant has not shown that the evidence at trial would have permitted a
finding of attempted ACSA to begin with. As we have stated, the State only needed to prove that
defendant made contact, “however slight,” with G.K.’s genitals or mouth using defendant’s penis.
See 720 ILCS 5/12-12(f) (West 2010). Thus, the evidence that defendant inserted his penis into
G.K.’s mouth, touched G.K.’s vagina and anus with his penis, and inserted his penis into G.K.’s
vagina all constituted acts of “sexual penetration.” There was no evidence at trial that would have
supported a finding that defendant attempted, but failed, to make any contact at all with G.K.’s
genitals or mouth using defendant’s penis. Because defendant failed to demonstrate prejudice, we
need not determine whether counsel’s performance was deficient. See Strickland, 466 U.S. at 697.
¶ 53 Defendant next contends that he did not voluntarily waive his right to postconviction
counsel. He argues that he repeatedly stated he had no choice but to proceed pro se because
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postconviction counsel refused to present his claims and that the trial court erred by failing to
inquire into his allegations to ensure his waiver of counsel was knowing and voluntary.
¶ 54 Defendants in postconviction proceedings do not have a constitutional right to counsel.
People v. Lesley, 2018 IL 122100, ¶ 35. Rather, “[t]he right to assistance of counsel in
postconviction proceedings is a matter of legislative grace, and a defendant is guaranteed only the
level of assistance provided by the Post-Conviction Hearing Act.” People v. Hardin, 217 Ill. 2d
289, 299 (2005). Postconviction counsel is required to provide defendant with a “ ‘reasonable level
of assistance.’ ” People v. Lander, 215 Ill. 2d 577, 583-84 (2005) (quoting People v. Owens, 139
Ill. 2d 351, 364 (1990)). Under the Act, indigent defendants are afforded the right to counsel
beyond the first stage of proceedings. 725 ILCS 5/122-4 (West 2014). “In fact, it has been
determined that the Act cannot perform its function unless the attorney appointed to represent an
indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate
legal form, and presents them to the court.” Lesley, 2018 IL 122100, ¶ 33 (citing People v. Suarez,
224 Ill. 2d 37, 46 (2007)).
¶ 55 Although the Act provides that the trial court must appoint counsel for a defendant who so
requests and lacks the means to procure counsel, an indigent defendant is not entitled to
representation by the counsel of his choice. People v. Gray, 2013 IL App (1st) 101064, ¶ 22;
People v. French, 210 Ill. App. 3d 681, 690 (1991). Further, a defendant has a right to proceed
pro se in postconviction proceedings. Lesley, 2018 IL 122100, ¶ 34. If a defendant wishes to
proceed pro se, he must knowingly and intelligently waive his right to counsel, i.e., the waiver
must be clear and unequivocal. Id.; Gray, 2013 IL App (1st) 101064, ¶ 23. In determining whether
a defendant’s waiver is clear and unequivocal, a court must “determine whether the defendant truly
desires to represent himself and has definitively invoked his right of self-representation.” Gray,
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2013 IL App (1st) 101064, ¶ 23. Whether there has been a knowing and intelligent waiver of the
right to counsel depends upon the particular facts and circumstances of the case, including the
background, experience, and conduct of the defendant. Lesley, 2018 IL 122100, ¶ 51. We look to
the entire record to determine whether the waiver of counsel was knowingly and understandingly
made. Id. We review the trial court’s determination regarding whether there has been a knowing
and intelligent waiver of counsel for an abuse of discretion. Gray, 2013 IL App (1st) 101064, ¶ 23.
¶ 56 We initially note that, before defendant sought to proceed pro se in the postconviction
proceedings, defendant’s postconviction counsel had filed a Rule 651(c) certificate. The certificate
reflected that she had consulted with defendant regarding his claims and that she had examined
defendant’s postconviction petition, the evidence at trial, and this court’s order on defendant’s
direct appeal, among other things. Counsel concluded in her certificate that defendant’s pro se
postconviction petition adequately presented defendant’s claims so that no amendments were
necessary. Defendant’s counsel was prepared to orally argue the State’s motion but was fired by
defendant before doing so. Therefore, despite defendant’s assertion that his postconviction counsel
refused to present his claims, the record suggests counsel was in fact prepared to argue defendant’s
claims in the second-stage postconviction hearing.
¶ 57 The record in this case demonstrates that defendant knowingly and intelligently waived his
right to postconviction counsel. Defendant, after conferring with counsel via correspondence,
wrote to the trial court requesting to proceed pro se and detailing his concerns with counsel’s
handling of his case. Defendant acknowledged that counsel’s decision not to amend his petition
“appears to be consistent with her beliefs as well as the law” but was concerned that she did not
wait to reach her decision until after receiving the State’s motion to dismiss. The court allowed
defendant time in court to confer with counsel prior to addressing whether to allow him to proceed
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pro se, and defendant again stated he wished to represent himself. The court subsequently
admonished defendant extensively regarding his right to counsel and that, as a pro se litigant, he
would be held to the same requirements as attorneys. Defendant repeatedly indicated he
understood the admonishments and persisted in his request to represent himself, definitively
invoking his right of self-representation. Defendant was explicit that he disagreed with counsel’s
conclusion regarding the merits of his petition and her decision not to file a written response to the
motion to dismiss and that he wanted to represent himself. Although he disagreed with counsel’s
conclusion in these regards, the record demonstrates his waiver of counsel was knowingly and
intelligently made. See, e.g., Lesley, 2018 IL 122100, ¶ 56 (“[the defendant’s] statements
indicating his reluctance to represent himself show his awareness of the advantages of
representation”).
¶ 58 Moreover, defendant’s handling of his postconviction proceedings shows his waiver of
counsel, while apparently reluctantly made based on counsel’s conclusion about his petition, was
voluntary and knowing. His pro se petition contained six pages of legal argument regarding his
claim of ineffective assistance of trial counsel for improperly advising him of the sentences on the
lesser-included attempt offenses. He cited to relevant legal authority, addressed both prongs of
Strickland in arguing his claim, and attached three supporting affidavits. Even prior to being
granted leave to proceed pro se, defendant came to the hearing on the State’s motion to dismiss
prepared with a written, 14-page pro se response, addressing the State’s arguments in turn and
again citing to relevant legal authority. Defendant’s pro se filings and oral argument demonstrated
his legal sophistication and that he knowingly wished to represent himself.
¶ 59 In reaching this conclusion, we reject defendant’s contentions that counsel could not “stand
mute” on defendant’s petition. Defendant argues counsel was required to either present his claims
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or move to withdraw if she considered the petition frivolous. However, “[c]ounsel’s duties,
pursuant to Rule 651(c), include consultation with the defendant to ascertain his contentions of
deprivation of constitutional right, examination of the record of the proceedings at the trial, and
amendment of the petition, if necessary, to ensure that defendant’s contentions are adequately
presented.” (Emphasis added.) Pendleton, 223 Ill. 2d at 472. Contrary to defendant’s assertion,
counsel was only required to make amendments to defendant’s petition if necessary. As noted
above, defendant’s petition outlined his ineffectiveness claim with citation to relevant authority,
addressed each prong of Strickland, and provided supporting affidavits. Thus, where defendant
adequately presented his claims, we cannot say it was unreasonable for counsel to conclude that,
as she stated in her Rule 651(c) certificate, amendment to defendant’s petition was unnecessary.
¶ 60 Further, we note that, in his letter to the trial court, defendant provided excerpts from his
correspondence with counsel, none of which support his contention that counsel concluded his
petition was frivolous. 1 Defendant’s letter merely states that counsel informed him (1) that, in
counsel’s experience, the court did not allow attorneys to withdraw even if they argue the petition
lacks arguable merit but that counsel disagreed and believed parties have a constitutional right to
represent themselves and (2) that counsel would not amend or supplement defendant’s pro se
petition and that “a postconviction attorney can stand on the petition, or withdraw as counsel if the
pleadings are frivolous.” These generalized statements regarding postconviction proceedings do
not show that counsel found defendant’s petition frivolous. To the contrary, counsel did not move
to withdraw, indicating she did not find the petition frivolous. See People v. Bass, 2018 IL App
(1st) 152650, ¶ 20 (“[I]f the lawyer appointed to represent a postconviction petitioner determines,
1
Copies of counsel’s correspondence are not included in the record on appeal.
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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 contemplates and his
entitlement to the assistance of counsel is at an end.”).
¶ 61 We similarly reject defendant’s contention that the court should have further inquired into
defendant’s allegations regarding counsel. As previously noted, defendant wrote the court a letter
detailing his concerns with counsel’s decision not to amend his petition. Thus, the court was well
aware of the details of defendant’s allegations, including that he did not agree with counsel’s
assessment of his petition and that counsel should have consulted with him further “to see if it was
possible to ‘shore up’ the argument for prejudice.” The court was also aware of defendant’s claim
that counsel refused to file a written response to the State’s motion to dismiss and heard counsel
state she was prepared to argue the motion orally. Moreover, prior to addressing the State’s motion
to dismiss, the court admonished defendant regarding his right to represent himself and the pitfalls
involved in doing so. It discussed with him his reasons for proceeding pro se, i.e., his disagreement
with counsel’s assessment of the case and counsel’s refusal to respond to the motion to dismiss in
writing. After receiving defendant’s detailed letter and discussing the matter in a hearing, the court
had ample notice of why defendant wanted to proceed pro se. There was no need for further inquiry
to determine that defendant’s waiver of counsel was knowing and understanding.
¶ 62 In sum, we find (1) the court did not err in dismissing defendant’s postconviction petition
where defendant failed to make a substantial showing of a constitutional violation of ineffective
assistance of trial counsel and (2) defendant knowingly and voluntarily waived his right to
postconviction counsel.
¶ 63 Affirmed.
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No. 1-17-0491
Cite as: People v. Rouse, 2020 IL App (1st) 170491Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-
17598; the Hon. James N. Karahalios, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Emily Hartman, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg and Miles J. Keleher, Assistant State’s Attorneys, of
Appellee: counsel), for the People.
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