People v. Bassett , 2023 IL App (4th) 220414-U ( 2023 )

NOTICE
This Order was filed under 2023 IL App (4th) 220414-U FILED
Supreme Court Rule 23 and is March 30, 2023
not precedent except in the NO. 4-22-0414 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
LAMARCUS BASSETT, ) No. 14CF1519
Defendant-Appellant. )
) Honorable
) Brendan A. Maher,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices Zenoff and Lannerd concurred in the judgment.
ORDER
¶1 Held: (1) The claim at issue in the amended petition for postconviction relief fails to make
a substantial showing that defendant was deprived of a constitutional right.
(2) The record does not affirmatively refute the representation, in postconviction
counsel’s certificate pursuant to Illinois Supreme Court Rule 615 (eff. July 1, 2017),
that he made amendments to the petition filed pro se that were necessary for an
adequate presentation of defendant’s contentions.
¶2 Defendant, Lamarcus Bassett, is serving a sentence of imprisonment for armed
robbery (720 ILCS 5/18-2(a)(2) (West 2014)). He petitioned, pro se, for postconviction relief. The
circuit court of Winnebago County appointed postconviction counsel, who amended the petition.
The State moved for dismissal of the amended petition on the ground of legal insufficiency. The
court granted the motion, concluding that the amended petition failed to make a substantial
showing that defendant had been deprived of a constitutional right.
¶3 Defendant appeals, contesting the dismissal of ground three of his amended
petition, a claim that trial counsel rendered ineffective assistance by failing to impeach the victim
regarding his bias against defendant. Because the record shows that trial counsel subjected the
State’s case to meaningful adversarial testing, we conclude that his decision not to attempt an
impeachment of the victim in this regard falls into the category of trial strategy and, hence, is
immune to a claim of ineffective assistance. Also, apart from such immunity, the decision was
objectively reasonable.
¶4 Alternatively, defendant claims that postconviction counsel failed to shape ground
three of his amended petition into proper legal form. Postconviction counsel filed a certificate
representing that he had “made any amendments to the petition filed pro se that [were] necessary
for an adequate presentation of petitioner’s contentions.” Because the record does not affirmatively
refute that representation, we find that postconviction counsel provided reasonable assistance.
¶5 Therefore, we affirm the judgment.
¶6 I. BACKGROUND
¶7 An indictment charged defendant with two counts of armed robbery (id.
§ 18-2(a)(1), (2)) and one count of aggravated robbery (id. § 18-1(b)(1)). All three counts were
based on an incident in which, on June 17, 2014, defendant allegedly robbed Deonterryo
Thompson at gunpoint.
¶8 Before the trial, defense counsel filed 10 motions in limine, in which he sought to
bar the prosecution from mentioning a variety of prior bad acts by defendant, including “having
multiple warrants for his arrest and being a suspect in numerous shootings and robberies or other
potential offenses.” In one of the motions in limine, defense counsel sought to bar any mention of
the fact that, at the time of the alleged armed robbery, defendant was wearing an ankle bracelet
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because he was on mandatory supervised release for second degree murder. Another motion
in limine expected Thompson to testify “that the Defendant ‘kills people and robs them.’ ” This
motion sought to bar such testimony as irrelevant and unfairly prejudicial.
¶9 On January 12, 2015, the day of the jury trial, the circuit court granted a motion by
the State to dismiss count II, a count alleging armed robbery with a bludgeon (id. § 18-2(a)(1)).
The court also granted some of the motions in limine filed by the defense, including the motions
to bar evidence that defendant was on mandatory supervised release for second degree murder and
to bar character testimony from Thompson “that the Defendant ‘kills people and robs them.’ ”
¶ 10 In the jury trial, Thompson testified substantially as follows. On June 17, 2014, he
was in front of the apartment building in which he resided, in Rockford, Illinois, barbecuing on a
grill. Seven or eight people were outside with him. Delano Foreman, accompanied by two other
men, came up to Thompson. At the time of the incident, Thompson knew one of Foreman’s two
companions only by his nickname of Koolaid. Thompson identified Koolaid, in court, as
defendant. Thompson did not know the name of the other man who was with Foreman. “[T]hey,”
the three men, asked Thompson where his friend Tuvia (last name unspecified) was. Thompson
answered that Tuvia had left. Defendant and the man whom Thompson did not know then went
into the apartment building. “[A]fraid that Koolaid was going to do something to [him],”
Thompson went into the apartment building a couple of minutes later, intending to take refuge in
his apartment. While climbing the stairs to his apartment, Thompson heard footsteps behind him.
He turned, and defendant and the man whose name Thompson did not know were on the staircase.
These two men pulled out pistols. Pointing a pistol in Thompson’s face, defendant commanded
him to empty his pockets. After failing to persuade defendant that he had no money, Thompson
handed him $150 in cash. Defendant and the other man then ran down the stairs and out of the
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apartment building, got into a black Nissan vehicle, and drove away. Thompson did not
immediately telephone the police. Instead, he contemplated retaliation. His mother persuaded him,
however, that reporting the robbery to the police would be the better course of action. He did so
the day after the robbery. In the police station, he was shown a photographic array, in which he
identified defendant as one of the robbers. He identified the second robber, Dezha Manning, in
another photographic array.
¶ 11 In his cross-examination of Thompson, defense counsel raised seven points that
were calculated to impeach Thompson or to reduce confidence in his testimony. First, Thompson
could not remember whether he was robbed on June 17, 2014, or the day before, although, as
Thompson admitted, most people would have found being robbed at gunpoint to be “somewhat
traumatic.” Second, Thompson admitted entering the apartment building right after defendant,
although, according to Thompson’s testimony on direct examination, he had been afraid that
defendant would do something to him. Third, Thompson testified that defendant’s accomplice was
armed with a black 9-millimeter pistol. On June 18, 2014, however, in his written statement to the
police, Thompson represented that this man was armed with a .40- or .45-caliber pistol. Thompson
explained on cross-examination, “They all look alike to me, 45, 49.” Fourth, Thompson testified
he handed $150 to defendant. In his statement to the police, however, Thompson represented that
the amount he handed to defendant was only $50. Fifth, as far as Thompson could remember, he
gave the police no physical description of defendant other than that he had braided hair and a logo
on his shirt or jacket. By contrast, Thompson gave the police a detailed physical description of the
other robber. Sixth, Thompson’s friend Nuky (last name unspecified) was in the hallway of the
apartment building during the armed robbery, and he saw the armed robbery take place.
(Nevertheless, Nuky was not called to testify.) Seventh, in addition to being previously adjudicated
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to be a delinquent minor, Thompson had a criminal case pending against him in Winnebago
County. He faced a potential punishment of up to one year in the county jail, a fine of as much as
$2500, and two years of probation. Nevertheless, Thompson denied hoping for leniency as a result
of his testimony in the present case.
¶ 12 In addition to calling Thompson, the State called Rockford Detective Dwayne
Beets, who testified substantially as follows. When he interviewed Thompson on June 18, 2014,
about the robbery that happened the day before, Thompson did not provide much of a physical
description of defendant—only a reference to braids or locs and an article of clothing. The reason
for this paucity of information, Beets explained, was that Thompson knew defendant and referred
to him by name as Koolaid. After interviewing Thompson, Beets assembled a photographic lineup
of six photographs. Then he gave Thompson a photographic lineup spread notice, which informed
Thompson that (1) the suspect might or might not be in the lineup, (2) Thompson did not have to
make an identification, and (3) the person administering the lineup did not necessarily know which
person was the suspect. Beets watched Thompson as he read and signed the notice. Then Beets
gave Thompson the photographic lineup (People’s exhibit No. 2). Without hesitation, Thompson
selected defendant’s photograph, circling and initialing it. Beets assembled a second photographic
lineup (People’s exhibit No. 4), using Thompson’s more detailed physical description of the
second robber, whose face Thompson knew but whose name Thompson did not know. On June
25, 2014, after having been given the same notice as before, Thompson selected Manning’s
photograph in the second lineup.
¶ 13 In his closing argument to the jury, defense counsel reasoned that if, as Thompson
testified, all pistols looked alike to him, it was unproven that the robbers even used firearms. If, as
Thompson testified, all pistols looked the same to him, then (defense counsel argued) Thompson
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was unable to tell the difference between a BB pistol and a pistol that was a firearm. See 720 ILCS
5/18-2(a)(2) (West 2014) (providing that a person commits armed robbery when he or she commits
robbery and is armed with a “firearm”); id. § 2-7.5 (providing that “firearm” has the meaning
ascribed to it in section 1.1 of the Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West
2014)); 430 ILCS 65/1.1 (West 2014) (excluding a BB gun or pneumatic gun from the definition
of a “firearm”). Also, defense counsel maintained that, for seven reasons, Thompson was an
unreliable witness. First, not only had he been adjudicated a delinquent minor, but—implausibly—
he denied having any hope that his testimony would bring him leniency in the criminal case
pending against him. Second, Thompson could not even figure out what day it was when he was
robbed. Third, Thompson had tripled the amount stolen from him, telling the police it was only
$50 but testifying it was $150. Fourth, Thompson’s story made no sense. He followed two men
into the apartment building even though he supposedly feared that the two men were going to do
something to him. Fifth, Thompson waited 18 hours to report the incident to the police. Sixth,
Thompson gave the police hardly any description of what defendant looked like. He told the police
that defendant had braids. In the photograph in the lineup, however, defendant had no braids.
Thompson never mentioned to the police the tattoo under defendant’s left eye, which could be
plainly seen by the jury. Seventh, defense counsel noted the State’s failure to call Nuky or any of
the six or seven other people who were at the barbecue.
¶ 14 After deliberating for three hours, the jury sent out a note that it was hung. The
circuit court responded with a note to continue deliberating. Ultimately, the jury found defendant
guilty of armed robbery and aggravated robbery.
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¶ 15 On February 19, 2015, the circuit court imposed a sentence of 32 years’
imprisonment on count I, armed robbery (720 ILCS 5/18-2(a)(2) (West 2014)). The court found
that count III, aggravated robbery, merged into count I.
¶ 16 Defendant took a direct appeal, in which he raised a single issue. He argued the
circuit court had committed plain error by failing to ensure that one of the seated jurors, Michael
Messink, understood and accepted the State’s obligation to prove defendant guilty beyond a
reasonable doubt (see Ill. S. Ct. R. 431(b) (eff. July 1, 2012)). People v. Bassett, 2016 IL App (2d)
150213-U, ¶ 14. In his direct appeal, defendant invoked both of the alternative theories of the plain
error doctrine: he argued that (1) the violation of Rule 431(b) was inherently serious and (2) the
evidence in the trial was closely balanced. Id. Disagreeing with both theories (id. ¶¶ 26-27), the
appellate court affirmed the judgment (id. ¶ 30). The appellate court “conclude[d] that, even if a
technical violation of Rule 431(b) occurred, the conviction should be affirmed because the
plain-error doctrine [did] not excuse defendant’s procedural default in failing to object at trial or
raise the issue in his posttrial motion.” Id. ¶ 2.
¶ 17 On April 4, 2018, defendant filed a pro se petition for postconviction relief. In his
petition, defendant made four claims, which he labeled as arguments A, B, C, and D.
¶ 18 Argument A was that “trial counsel was ineffective for not investigating and
presenting [an] alibi witness.” In exhibits to his petition, defendant presented affidavits by two
alibi witnesses: his sister, Malikah Muhammed, who averred that defendant was home at the time
of the armed robbery, and the codefendant, Dezha Manning, who averred that defendant “did not
have anything to do with this armed robbery.” According to argument A, Thompson’s testimony
already was weak and inconsistent for three reasons. First, Thompson had “failed to identify
[defendant] as one of the perpetrators but instead [had] described an individual” with “braids” who
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was “wearing a black shirt with a red logo on it.” Second, defendant and Thompson had gotten
into “an earlier altercation where [Thompson] had an unfounded grudge against defendant for the
death of one of [Thompson’s] friend[s].” Third, “suggestive police tactics” had caused Thompson
to “inculpate” defendant. In sum, defendant claimed that trial counsel’s “failure to investigate[,]
subpoena[,] and call [defendant’s] alibi witness[es] amounted to ineffective assistance” for the
following reasons:
“[Defendant’s] alibi witness would have testified that [defendant] was with her at
home when [the] offense occurred [and] this testimony not only could have
established and corroborated [defendant’s] whereabouts at the time of the offense
but also been used to impeach [***] already weak [and] inconsi[s]tent testimony
from the victim.”
¶ 19 Argument B of the pro se petition was twofold: (1) trial counsel rendered
ineffective assistance by failing to object when the circuit court neglected to ask Juror Messink if
he understood and accepted the State’s burden to prove defendant guilty beyond a reasonable
doubt, and (2) appellate counsel on direct appeal rendered ineffective assistance by failing to raise
this issue.
¶ 20 Argument C was that trial counsel rendered ineffective assistance by “failing to put
the plea agreement in writing and [failing to] give defendant good legal advice to accept [the] plea
the day it was offer[ed] and inform [defendant] of the possible sentence if he did not accept the
plea offer and go to trial.”
¶ 21 Argument D was a claim of actual innocence premised on the affidavits of the alibi
witnesses, Muhammed and Manning.
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¶ 22 On July 9, 2018, the circuit court entered an order stating that the court had lacked
“sufficient time to review all of [defendant’s] claims or to adequately ‘*** examine the court file
of the proceedings in which [defendant] was convicted, any action taken by an appellate court in
such proceeding[,] and any transcripts of such proceeding’ within the ninety (90) day time limit
imposed by” section 122-2.1(a) of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1(a) (West
2018)). Therefore, for that reason alone (the court emphasized), the court appointed postconviction
counsel and ordered that the pro se petition be “ ‘docketed for further consideration and hearing’
pursuant to” section 122-2.1(b) (id. § 122-2.1(b)). The court said that it thereby made no finding
as to whether the petition stated the gist of a constitutional claim.
¶ 23 On August 17, 2020, postconviction counsel filed an amended petition for
postconviction relief. The amended petition sought relief on four grounds, which were labeled as
grounds one, two, three, and four.
¶ 24 Ground one was that trial counsel rendered ineffective assistance by failing to
object when Messink gave no response to the circuit court’s question of whether he understood
and accepted the State’s obligation to prove defendant guilty beyond a reasonable doubt.
¶ 25 Ground two was that trial counsel rendered ineffective assistance by (1) “fail[ing]
to properly advise the Defendant of a 12 year plea offer,” (2) “fail[ing] to advise the Defendant of
his possible sentencing exposure if found guilty of armed robbery,” and (3) “allow[ing] the offer
to be revoked before the Defendant could accept it.”
¶ 26 Ground three was that trial counsel rendered ineffective assistance by “fail[ing] to
meet with the Defendant sufficiently in order to adequately prepare a defense for trial.” The
amended petition continued:
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“30. Prior to trial, the Defendant made his attorney aware that the victim,
Thompson, knew him well and that Thompson had a grudge against him. He also
told his attorney that he did not rob Thompson and that Thompson had fabricated
the story to get even with him.
31. Trial counsel did not put on any evidence, choosing to rely solely on
cross examination of Thompson as to some inconsistencies in his testimony and
prior police statements. Counsel essentially conceded the Defendant’s guilt as to
one or both charges.
32. Trial counsel’s failure to review evidence and strategy with the
Defendant arises to a level of ineffective assistance. *** [T]here appears to be no
strategy whatsoever. Given that counsel failed to meet with the Defendant
sufficiently to develop a defense strategy and then failed to give competent advise
[sic] on the issue of possible sentencing exposure as discussed in Ground Two, the
cumulative effect arises to the level of ineffective assistance.”
In an accompanying affidavit, defendant averred:
“6. Prior to our meeting on [January 8, 2015], my attorney spent little time
with me to review the evidence or what our trial strategy would be.
7. I told my attorney that Deonterryo Thompson had a grudge against me
and fabricated the story about being robbed. My attorney led me to believe that I
could not be found guilty based on the testimony of Thompson. My attorney never
made it clear to me or sought my input into what our trial strategy would be. I
wanted to testify but my attorney convinced me otherwise.”
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¶ 27 Ground four was that appellate counsel rendered ineffective assistance on direct
appeal by failing to argue the preceding three grounds.
¶ 28 On October 20, 2020, postconviction counsel filed an amended certificate pursuant
to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). One of his representations in the
certificate was that he had “made any amendments to the petition filed pro se that [were] necessary
for an adequate presentation of petitioner’s contentions.”
¶ 29 On May 3, 2022, the circuit court granted a motion by the State to dismiss the
amended postconviction petition.
¶ 30 On May 16, 2022, defendant filed his notice of appeal, designating the order of
May 3, 2022, as the judgment from which he appealed.
¶ 31 II. ANALYSIS
¶ 32 A. The Legal Sufficiency of Ground Three
¶ 33 1. Failing to Impeach Thompson Regarding His Grudge Against Defendant
¶ 34 Defendant contends the circuit court erred by dismissing, as legally insufficient,
ground three of the amended petition, the claim that trial counsel rendered ineffective assistance
by failing to impeach Thompson with evidence of his bias, his grudge, against defendant. To
survive the State’s motion for dismissal, the amended petition had to “make a substantial showing
of a deprivation of rights under either the United States or Illinois Constitution[ ] or both.” People
v. Dupree, 2018 IL 122307, ¶ 28. We decide de novo whether ground three makes such a showing.
See People v. Young, 2022 IL App (1st) 210534, ¶ 41.
¶ 35 In ground three of his amended petition, defendant invokes a well-recognized
constitutional guarantee. Under the United States and Illinois Constitutions, a defendant has the
right to effective assistance from trial counsel. People v. Peterson, 2017 IL 120331, ¶ 79 (citing
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U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). To establish that trial counsel rendered
ineffective assistance, the defendant must show that both of the following propositions hold true:
(1) counsel’s performance “fell below an objective standard of reasonableness,” and (2) there is a
“reasonable probability *** that, but for counsel’s errors, the result of the proceeding would have
been different” (which is to say, more favorable to the defendant). Id. In short, the defendant must
show deficiency of performance and resulting prejudice. Id.
¶ 36 Establishing deficiency of performance in the impeachment of a witness tends to
be a daunting task. What makes this type of claim so troublesome is that (1) impeachment is a
matter of trial strategy (People v. Pecoraro, 175 Ill. 2d 294, 326 (1997); People v. Phillips, 2017
IL App (4th) 160557, ¶ 58) and (2) the supreme court has said this about trial strategy:
“[M]atters of trial strategy [citation] *** are generally immune from claims of
ineffective assistance of counsel. [Citation.] *** The only exception to this rule is
when counsel’s chosen trial strategy is so unsound that counsel entirely fails to
conduct any meaningful adversarial testing. [Citation.]” (Emphases added and
internal quotation marks omitted.) People v. West, 187 Ill. 2d 418, 432-33 (1999).
Recently, the supreme court reiterated this rule from West, holding again that “[e]rrors in trial
strategy do not constitute ineffective assistance unless counsel entirely fails to conduct any
meaningful adversarial testing.” (Internal quotation marks omitted.) People v. Custer, 2019 IL
123339, ¶ 39; see also Phillips, 2017 IL App (4th) 160557, ¶ 58; People v. Leslie, 2022 IL App
(4th) 200528-U, ¶ 19. Thus, even if the defendant can identify an additional subject on which trial
counsel might have impeached a witness, the defendant has no valid claim of ineffective assistance
if trial counsel subjected the State’s case to some significant adversarial testing.
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¶ 37 Phillips illustrates this principle. In Phillips, the postconviction petition faulted trial
counsel for failing to prove that the victim had been promised something in return for testifying
against the defendant. Phillips, 2017 IL App (4th) 160557, ¶ 1. The prosecutor had told the victim
that, in return for his testimony, the state’s attorney’s office would not refer him for federal
prosecution for drug offenses. Id. ¶ 42. On cross-examination, the victim denied that any such
promise had been made to him. Id. ¶ 14. In his postconviction petition, the defendant criticized
trial counsel for not proving this promise by other means. Id. ¶ 34. Because the defendant,
however, had “failed to show his counsel’s trial strategy amounted to a complete failure to conduct
any meaningful adversarial testing,” the appellate court affirmed the decision against the defendant
on this claim of ineffective assistance. Id. ¶ 59. The appellate court noted, “[C]ounsel attacked [the
victim’s] credibility with his prior felony conviction as well as his possible felony drug conviction
and the fact he did not know if he had any other felony convictions.” Id. In other words, even
though trial counsel did not succeed in impeaching the victim on one ground, he impeached the
witness on other grounds, and thus, some meaningful adversarial testing had taken place.
Therefore, the defendant had no legitimate claim of ineffective assistance.
¶ 38 Similarly, in the present case, even though trial counsel did not impeach Thompson
on his supposed grudge against defendant, he impeached Thompson in other ways. It could not be
reasonably contended that trial counsel completely failed to conduct any meaningful adversarial
testing. He filed 10 motions in limine, and they were largely successful. In his cross-examination
of Thompson and in his closing argument, he exposed serious vulnerabilities in the State’s case.
The record leads us to disagree with postconviction counsel’s assertion that “[c]ounsel essentially
conceded the Defendant’s guilt as to one or both charges.” On the contrary, there was meaningful
adversarial testing. Defense counsel’s cross-examination of Thompson and his closing argument
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were hard-hitting. Therefore, trial counsel’s decision not to try to impeach Thompson regarding
his grudge against defendant is “immune from [a] claim[ ] of ineffective assistance of counsel.”
West, 187 Ill. 2d at 432.
¶ 39 To be clear, the rule in West, in and of itself, makes ground three of defendant’s
amended petition legally insufficient. Apart from that fatal flaw, we would point out that defense
counsel’s decision not to question Thompson about his alleged bias against defendant was
objectively reasonable. See People v. Mays, 2023 IL App (4th) 210612, ¶ 117. If, on cross-
examination, defense counsel had elicited an admission from Thompson that he had an earlier
altercation with defendant, defense counsel might have thereby opened the door to what the
altercation possibly was about: defendant’s allegedly having caused the death of one of
Thompson’s friends. Defense counsel might have ended up sabotaging his wise strategy of
excluding defendant’s prior bad acts.
¶ 40 2. “Fail[ing] to Meet with the Defendant Sufficiently”
¶ 41 In ground three of the amended petition, defendant claimed that “[t]rial counsel
failed to meet with the Defendant sufficiently in order to adequately prepare a defense for trial.”
This claim is conclusory and, therefore, is not taken as true. See People v. Rissley, 206 Ill. 2d 403,
412 (2003). In deciding whether a petition makes a substantial showing of a deprivation of
constitutional rights, we assume the truth of “all well-pleaded facts in the petition and affidavits”
(id.) to the extent that those well-pleaded factual allegations are not “affirmatively refuted by the
record” (People v. Domagala, 2013 IL 113688, ¶ 35). By contrast, we do not assume the truth of
“nonfactual and nonspecific assertions [that] merely amount to conclusions.” Rissley, 206 Ill. 2d
at 412. Whether a meeting is “sufficient[ ]” and whether preparation is “adequate[ ]” are matters
of evaluative judgment—they are conclusions instead of well-pleaded facts. The conclusory
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assertion that “[t]rial counsel failed to meet with the Defendant sufficiently in order to adequately
prepare a defense for trial” did not merit an evidentiary hearing. See id.¶ 42 In sum, in our de novo review (see Young, 2022 IL App (1st) 210534, ¶ 41), we
find ground three of the amended petition, the claim at issue in this appeal, to be legally
insufficient. Taking the well-pleaded facts in the claim to be true and disregarding its bare
conclusions (see Rissley, 206 Ill. 2d at 412), we find that the claim fails to “make a substantial
showing of a deprivation of rights under either the United States or Illinois Constitution[ ].”
Dupree, 2018 IL 122307, ¶ 28.
¶ 43 B. The Alternative Claim That Postconviction Counsel Failed to Provide
Reasonable Assistance in Shaping Defendant’s Claims Into Proper Legal Form
¶ 44 Alternatively, defendant argues that postconviction counsel failed to fulfill his duty
of “investigat[ing] the defendant’s claims and mak[ing] any amendments necessary for an
adequate presentation of the defendant’s contentions.” People v. Austin, 2022 IL App (4th)
200630-U, ¶ 36 (citing Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)). Defendant complains that, in the
amended petition, “[t]here was no discussion of what counsel should have done differently (e.g.,
investigate Thompson’s bias and present evidence on it).” Because the amended petition contained
no mention or proof of the earlier altercation between Thompson and defendant, the allegation, in
ground three of the amended petition, that “Thompson had a grudge against [defendant]” was a
bare conclusion. Second, defendant criticizes the amended petition for failing to “specify what
‘evidence’ and ‘strategy’ trial counsel failed to review.” We agree with these criticisms. Defendant
has identified some pleading deficiencies and evidentiary omissions in ground three.
¶ 45 The trouble is, even if ground three had suggested (and substantiated) a reason why
a grudge or bias of Thompson against defendant might have been inferred—namely, because of
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their earlier altercation over the death of Thompson’s friend—its claim of ineffective assistance
would remain frivolous. As we have explained, it is not arguable that trial counsel completely
failed to subject the State’s case to any meaningful adversarial testing. Therefore, under binding
precedent, the strategic decision not to try to impeach Thompson regarding his alleged grudge
against defendant is immune to a claim of ineffective assistance. See West, 187 Ill. 2d at 432.
¶ 46 Defendant maintains, however, that the potential merit of the claim of ineffective
assistance in ground three is irrelevant to the question of compliance with Rule 651(c). Quoting
from People v. Suarez, 224 Ill. 2d 37, 47 (2007), he argues, “[i]f it is shown that counsel failed to
fulfill any one of [the requirements in Rule 651(c)], ‘remand is required *** regardless of whether
the claims raised in the petition her merit.’ ” The facts in Suarez, however, are significantly
different from those in the present case. In Suarez, the postconviction counsel never filed a
certificate pursuant to Rule 651(c). Id. at 40. In such a certificate, the postconviction counsel would
have certified that he had “ ‘consulted with petitioner *** to ascertain his contentions of
deprivation of constitutional right.’ ” Id. at 42 (quoting Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984).
Absent a certificate pursuant to Rule 651(c), the record in Suarez failed to show that such a
consultation had taken place. See id. at 44. The supreme court was unwilling to excuse as harmless
error the lack of such a showing by the record. Id. at 52. In the present case, by contrast,
postconviction counsel filed a certificate pursuant to Rule 651(c). Consequently, the analysis in
this case is different from that in Suarez.
¶ 47 “The filing of a Rule 651(c) certificate by postconviction counsel averring that
counsel has complied with the three requirements of Rule 651(c) creates a presumption of
compliance with the rule.” People v. Gallano, 2019 IL App (1st) 160570, ¶ 26. We will credit the
representations in the certificate unless we find, in our de novo review (see id.), that “the record
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positively rebuts” the representations. People v. Wallace, 2016 IL App (1st) 142758, ¶ 28; see also
People v. Perkins, 229 Ill. 2d 34, 52 (2007); People v. Morgan, 2015 IL App (1st) 131938, ¶ 100.
¶ 48 According to defendant, the record contradicts postconviction counsel’s
representation, in his amended certificate, that he “made any amendments to the petition filed
pro se that [were] necessary for an adequate presentation of [defendant’s] contentions.” Ground
three of the amended petition, defendant argues (alternatively), was conclusory and, therefore, was
legally insufficient on its face. If a contention is presented in a conclusory way, the contention is
not adequately presented. See Rissley, 206 Ill. 2d at 412. Defendant contends that, by recasting a
pro se claim as a naked conclusion, a postconviction counsel fails to “shape” the pro se claim “into
proper legal form.” See Perkins, 229 Ill. 2d at 43-44. Defendant complains that his postconviction
counsel at least could have included, in the amended petition, an explanation of why defendant
thought that Thompson had a grudge against him: they had gotten into an altercation earlier.
¶ 49 Rule 651(c) required postconviction counsel to “ma[k]e any amendments to the
petitions filed pro se that [were] necessary for an adequate presentation of [defendant’s]
contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The supreme court has held, “If amendments
to a pro se postconviction petition would only further a frivolous or patently unmeritorious claim,
they are not ‘necessary’ within the meaning of [Rule 651(c)].” People v. Greer, 212 Ill. 2d 192,
205 (2004). By that standard, ground three of the amended petition—though pleaded by
postconviction counsel—was unnecessary. It follows that any further amendment of the pro se
petition by further elaboration of ground three was unnecessary. Defendant cites People v. Dixon,
2018 IL App (3d) 150630, ¶ 22, in which the appellate court remarked, “Here, postconviction
counsel chose to file an amended petition, so we assume that counsel found that the allegations in
the pro se petition were not frivolous.” Dixon is distinguishable, however, because (regardless of
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what the postconviction counsel in this case might have thought) the trial transcript shows ground
three of the amended petition to be frivolous. Reasonable assistance did not require the elaboration
of a claim of ineffective assistance that was, under West, obviously and incurably unmeritorious.
See Greer, 212 Ill. 2d at 205.
¶ 50 III. CONCLUSION
¶ 51 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 52 Affirmed.
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