People v. Smith , 2020 IL App (1st) 181220 ( 2020 )

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Appellate Court Date: 2022.04.19
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People v. Smith, 2020 IL App (1st) 181220Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KARL SMITH, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-18-1220
Filed December 31, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-2655; the
Review Hon. Thomas Joseph Hennelly, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Peter Sgro, of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Tyler J. Cox, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 Defendant Karl Smith appeals the second-stage dismissal of his postconviction petition.
He argues that he is entitled to a remand for further second-stage proceedings because the
attorney who represented him at the hearing on the State’s motion to dismiss his petition did
not comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
The State counters that the attorney was not required to independently satisfy the duties
prescribed by Rule 651(c) because her predecessor counsel had already filed a valid Rule
651(c) certificate. For the following reasons, we agree with the State and affirm the circuit
court’s judgment. 1
¶2 I. BACKGROUND
¶3 In January 2008, defendant and two other men forced their way into an apartment that
Gabriel Curiel shared with his brother, Jonathon Collazo. Gabriel’s three children, including
six-year-old David, were also present at the time. The intruders stole money and cannabis from
a safe in the apartment. During the incident, David was shot in the head, and Gabriel was
beaten, stabbed in the chest, and shot in the shoulder. Both were seriously injured but survived.
¶4 At a jury trial in 2011, Gabriel and Collazo identified defendant as one of the offenders.
The State also called David, then nine years old, to testify. Before trial, defendant requested a
hearing on David’s competency, but the trial court stated that it would address that issue at
trial. After taking the stand, David answered several preliminary questions, but when asked
about the day of the attack, he responded “I need a hug” and “I want my mom.” The jury was
then excused, and defense counsel moved for a mistrial, arguing that David’s emotional
reaction in front of the jury had prejudiced defendant. The trial court denied that request but
stated that it would conduct a competency hearing if the State recalled David to the stand. The
State did not recall David, and the trial court later instructed the jury to disregard his testimony
and what had occurred while he was on the stand.
¶5 The jury found defendant guilty of two counts of attempted first degree murder, two counts
of aggravated battery with a firearm, and one count each of home invasion, armed robbery,
and aggravated battery of a child. The trial court sentenced defendant to consecutive prison
terms of 30 years and 25 years on the attempted first degree murder convictions and
consecutive terms of 22 years for the home invasion and armed robbery convictions, for an
aggregate sentence of 99 years. The court imposed concurrent sentences of 30 years and 15
years on the aggravated battery with a firearm convictions and no sentence on the aggravated
battery of a child conviction, which merged with one of the aggravated battery with a firearm
convictions.
¶6 On direct appeal, defendant argued that his aggravated battery convictions should be
vacated under the one-act, one-crime rule because they were based on the same physical acts
as his attempted first degree murder convictions, namely, the shootings of Gabriel and David.
We vacated one of defendant’s aggravated battery with a firearm convictions and his
aggravated battery of a child conviction because those convictions were based on defendant’s
act of shooting David, which was the same act underlying his conviction for attempted first
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
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appeal has been resolved without oral argument upon the entry of a separate written order.
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degree murder of David. People v. Smith, 2013 IL App (1st) 120311-U, ¶ 8. But we affirmed
defendant’s other aggravated battery with a firearm conviction because that conviction was
based on defendant’s act of shooting Gabriel, while his conviction for attempted first degree
murder of Gabriel was based on his distinct act of stabbing Gabriel. Id. ¶ 9.
¶7 In March 2014, defendant filed a pro se postconviction petition, alleging that (1) he was
not proven guilty beyond a reasonable doubt; (2) the State violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose David’s pretrial statement identifying him; (3) the trial
court erred in rejecting his request for a pretrial hearing on David’s competency to testify,
which caused him prejudice when David had an emotional breakdown in front of the jury;
(4) the trial court erred in imposing consecutive sentences for convictions arising from the
same course of conduct and not informing him before trial that he could receive consecutive
sentences; and (5) his appellate counsel was ineffective for failing to raise the preceding claims
on direct appeal.
¶8 When the trial court failed to rule on the petition in 90 days, it automatically advanced to
second-stage proceedings, and the court appointed the Office of the Public Defender to
represent defendant. On January 23, 2015, Assistant Public Defender (APD) Denise Avant
appeared on defendant’s behalf. On April 22, 2016, after several continuances, APD Avant
filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) attesting that
she had consulted with defendant by phone to ascertain his contentions of deprivations of
constitutional rights, had reviewed the transcript of defendant’s trial and the briefs from his
direct appeal, had spoken with defendant’s trial counsel, had researched the issues in
defendant’s pro se petition, and had determined that no supplemental petition was necessary
to adequately present defendant’s contentions.
¶9 On April 6, 2017, the State filed a motion to dismiss defendant’s petition, arguing that it
was untimely and that defendant’s claims were meritless. On August 4, 2017, APD Avant filed
a response to the State’s motion, conceding that defendant filed his petition 38 days late but
arguing that the delay should be excused because defendant was not culpably negligent. In
support, APD Avant submitted an affidavit from defendant explaining that he had only a tenth
grade education and was unfamiliar with the legal rules for calculating the deadline for filing
a postconviction petition.
¶ 10 Sometime after filing the response to the State’s motion to dismiss, APD Avant left the
public defender’s office, and the case was reassigned to APD Kristine Underwood. On March
26, 2018, APD Underwood represented defendant at the hearing on the State’s motion to
dismiss. APD Underwood argued that the untimeliness of defendant’s petition should be
excused because his mistake in calculating the deadline for filing the petition did not constitute
culpable negligence. On the merits, APD Underwood focused on defendant’s claim that the
trial court erred in denying his request for a pretrial hearing on David’s competency to testify.
APD Underwood argued that, in light of David’s age and the head injuries he suffered in the
shooting, a pretrial hearing on his competency was warranted. And though David ultimately
did not testify at trial, APD Underwood argued that defendant was prejudiced by the lack of a
pretrial competency hearing when David became emotional in front of the jury while
attempting to testify.
¶ 11 In an oral ruling, the trial court granted the State’s motion to dismiss. The court found that
defendant’s petition was untimely, but it did not address the argument that the lateness should
be excused due to defendant’s lack of culpable negligence. The trial court also found that
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defendant’s claims were meritless. As for the claim that the court erred in denying defendant’s
request for a pretrial hearing on David’s competency, the court noted that David ultimately did
not testify and that the jury was instructed to disregard what occurred when he was briefly
called to the stand. After the court announced its ruling, defendant filed a timely notice of
appeal.
¶ 12 II. ANALYSIS
¶ 13 Defendant’s sole argument on appeal is that he is entitled to a remand for further second-
stage proceedings because APD Underwood did not file a Rule 651(c) certificate and the record
does not otherwise establish that she independently complied with the duties specified by the
rule. Defendant does not dispute that APD Avant complied with the requirements of Rule
651(c). But he argues that, regardless of APD Avant’s compliance, APD Underwood, as the
attorney who represented him at the hearing on the State’s motion to dismiss, was
independently required to comply with Rule 651(c). We review an attorney’s compliance with
Rule 651(c) de novo. People v. Profit, 2012 IL App (1st) 101307, ¶ 17. We likewise review
the scope of an attorney’s duties under Rule 651(c) de novo. See People v. Suarez, 224 Ill. 2d
37, 41-42 (2007) (questions concerning the proper interpretation of a supreme court rule are
reviewed de novo).
¶ 14 Under the Post-Conviction Hearing Act, when a postconviction petition is not dismissed
as frivolous or patently without merit within 90 days after it is filed, the petition advances to
second-stage proceedings, including the appointment of counsel. 725 ILCS 5/122-2.1(b), 122-
4 (West 2018); People v. Bailey, 2017 IL 121450, ¶ 18. There is “no constitutional right to
counsel, effective or otherwise,” in postconviction proceedings. People v. Custer, 2019 IL
123339, ¶ 30; see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather, the right to
counsel recognized by the Post-Conviction Hearing Act exists as a matter of legislative grace.
Custer, 2019 IL 123339, ¶ 30. A postconviction petitioner is thus “entitled to only the level of
assistance guaranteed by the Act.” (Internal quotation marks omitted.) Id. That “required
quantum of assistance has been judicially deemed to be a ‘reasonable level,’ a standard that is
significantly lower than the one mandated at trial by our state and federal constitutions.” Id.(citing People v. Pendleton, 223 Ill. 2d 458, 472 (2006)).
¶ 15 To ensure that postconviction petitioners receive the reasonable level of assistance
guaranteed under the Post-Conviction Hearing Act, Rule 651(c) requires postconviction
counsel to perform three specific tasks. Suarez, 224 Ill. 2d at 42. In particular, Rule 651(c)
requires postconviction counsel to
“consult[ ] with [the] petitioner by phone, mail, electronic means or in person to
ascertain his or her contentions of deprivation of constitutional rights, ***
examine[ ] the record of the proceedings at the trial, and [make] any amendments
to the petitions filed pro se that are necessary for an adequate presentation of [the]
petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
See People v. Kirk, 2012 IL App (1st) 101606, ¶ 18. These duties serve “to ensure that counsel
shapes the petitioner’s claims into proper legal form and presents those claims to the court.”
People v. Perkins, 229 Ill. 2d 34, 44 (2007). When a postconviction attorney files a certificate
attesting that she has performed the duties mandated by Rule 651(c), the certificate gives rise
to a rebuttable presumption that counsel provided the reasonable level of assistance guaranteed
by the Post-Conviction Hearing Act. Profit, 2012 IL App (1st) 101307, ¶ 19.
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¶ 16 As noted, defendant does not dispute that APD Avant filed a Rule 651(c) certificate, and
he makes no attempt to overcome the presumption that APD Avant provided him the
reasonable assistance guaranteed by the Post-Conviction Hearing Act. Instead, defendant
contends that APD Underwood, who replaced APD Avant as his counsel prior to the hearing
on the State’s motion to dismiss, was herself required to comply with Rule 651(c)’s
requirements. But we find no support for this contention in either the Post-Conviction Hearing
Act or Rule 651(c).
¶ 17 This court’s decision in People v. Marshall, 375 Ill. App. 3d 670 (2007), is instructive.
There, a defendant who was denied postconviction relief after a third-stage evidentiary hearing
argued that the attorneys who represented her at the evidentiary hearing were required to
comply with the requirements of Rule 651(c) even though the attorney who previously
represented her at the second-stage proceedings on her petition had already certified
compliance with the rule’s requirements. Id. at 672, 679. In rejecting this contention, we held
that “Rule 651(c)’s requirements must be met only once and not, as defendant suggests, by
attorneys representing a defendant at each stage of postconviction proceedings.” Id. at 682.
¶ 18 We explained that counsel at the various stages of the postconviction process have distinct
roles. In particular, counsel at second-stage proceedings must satisfy Rule 651(c)’s
requirements of consulting with the petitioner, reviewing the record, and making any necessary
amendments to the petitioner’s pro se petition “so that the State can fully review the
defendant’s claims and determine if it will move to dismiss them.” Id. at 683. “An attorney at
the evidentiary hearing stage,” by contrast, “must argue the merits of the postconviction
petitioner’s claims as presented in the petition following review by counsel at the second
stage.” Id. In light of these distinctive roles, we concluded that “Rule 651(c) does not require
third-stage counsel to duplicate the efforts of second-stage counsel.” Id.¶ 19 Although Marshall did not address the precise question presented here, we think its
reasoning applies with full force. Defendant does not dispute that APD Avant consulted with
him to ascertain his contentions of constitutional error, reviewed the record of his trial
proceedings, and reasonably determined that no amendments to his pro se petition were
necessary to adequately present his claims. By certifying her compliance with these duties,
APD Avant created a rebuttable presumption, which defendant does not attempt to overcome,
that APD Avant provided the level of reasonable assistance mandated by the Post-Conviction
Hearing Act. See Profit, 2012 IL App (1st) 101307, ¶ 19. In addition to complying with the
duties specified in Rule 651(c), APD Avant filed a written response to the State’s motion to
dismiss, urging the trial court to excuse the tardy filing of defendant’s pro se petition due to a
lack of culpable negligence on defendant’s part. Defendant likewise makes no argument that
APD Avant rendered unreasonable assistance in responding to the State’s motion.
¶ 20 When APD Underwood replaced APD Avant as defendant’s counsel, all that was left to do
was orally argue defendant’s position at the hearing on the State’s motion to dismiss. Much
like the attorneys at the third-stage evidentiary hearing in Marshall, APD Underwood’s role
was different than that of the attorney she replaced. Her task was to urge that the untimely
filing of defendant’s pro se petition be excused (as APD Avant had previously done in writing)
and “argue the merits of [defendant’s] claims as presented in the petition following review by
[APD Avant].” See Marshall, 375 Ill. App. 3d at 683. To perform that limited role, it was not
necessary for APD Underwood to independently consult with defendant to ascertain his
contentions of constitutional error, review the trial record, or determine whether any
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amendments to defendant’s pro se petition were necessary to adequately present his claims.
APD Underwood was entitled to rely on APD Avant’s certificate of compliance with respect
to those duties and was not required “to duplicate [APD Avant’s] efforts.” See id.¶ 21 Resisting this conclusion, defendant cites two decisions of the Second District applying
Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). That rule provides that, when a
defendant moves to withdraw his guilty plea or reconsider the sentence imposed following his
plea, the defendant’s attorney must certify that he “has consulted with the defendant *** to
ascertain defendant’s contentions of error ***, has examined the [relevant records], and has
made any amendments to the motion necessary for adequate presentation of any defects in
those proceedings.” Id. In People v. Ritchie, 258 Ill. App. 3d 164, 166-67 (1994), and People
v. Herrera, 2012 IL App (2d) 110009, ¶ 11, the Second District held that the attorney who
represents a defendant at the hearing on his motion must independently certify compliance
with Rule 604(d), even if an earlier attorney who has since withdrawn previously certified his
own compliance. Ritchie explained that “one purpose of [Rule 604(d)] is to assure that all of
[a] defendant’s viable contentions of error are presented to the court,” and that that purpose
would be “frustrated if an affidavit by an attorney who no longer represents [the] defendant is
deemed adequate compliance with the rule.” Ritchie, 258 Ill. App. 3d at 166-67. Herrera
further reasoned that, due to “the strict forfeiture provision of Rule 604(d) ***, fundamental
fairness requires that the defendant have the assistance of counsel in preparing and presenting
his motion, and Rule 604(d) ensures that those duties are performed and that the defendant’s
due process rights are protected.” (Emphasis in original.) Herrera, 2012 IL App (2d) 110009,
¶ 11.
¶ 22 Assuming arguendo that Ritchie and Herrera correctly interpreted the requirements of
Rule 604(d), we reject defendant’s call to extend that interpretation to Rule 651(c). Although
superficially similar, Rule 604(d) and Rule 651(c) serve fundamentally distinct purposes. Rule
604(d) protects a defendant’s constitutional right to effective assistance of counsel at a critical
stage of the proceedings on his guilty plea. People v. Young, 355 Ill. App. 3d 317, 324 (2005).
In contrast, Rule 651(c) protects only the statutory right to reasonable assistance of counsel
that applies in postconviction proceedings. See Custer, 2019 IL 123339, ¶ 30. Thus, even if
the attorney who represents a defendant at the hearing on his motion to withdraw his guilty
plea or reconsider the sentence imposed following his guilty plea must certify compliance with
Rule 604(d) despite a predecessor attorney’s earlier certificate, there is no logical reason why
the same rule should apply to a postconviction attorney’s compliance with the requirements of
Rule 651(c) since the standards of attorney performance that those rules protect differ so
drastically. See id. (standard of reasonable assistance guaranteed in postconviction proceedings
“is significantly lower than the [standard] mandated at trial by our state and federal
constitutions”).
¶ 23 The duties imposed on postconviction counsel under Rule 651(c) exist to ensure that
postconviction petitioners receive the reasonable assistance of counsel guaranteed by the Post-
Conviction Hearing Act. Suarez, 224 Ill. 2d at 42. Here, APD Avant certified that she complied
with the duties specified in Rule 651(c), including consulting with defendant to ascertain his
contentions of constitutional error, reviewing the trial record, and determining that no
amendments to his pro se petition were necessary to adequately present his claims. APD
Avant’s certificate created a rebuttable presumption that defendant received reasonable
assistance of postconviction counsel. See Profit, 2012 IL App (1st) 101307, ¶ 19. APD
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Underwood, who replaced APD Avant prior to the hearing on the State’s motion to dismiss,
was not required to duplicate APD Avant’s efforts and independently perform the duties
specified in Rule 651(c) in order to provide reasonable assistance at the motion hearing.
¶ 24 Because defendant has not rebutted the presumption of reasonable assistance created by
APD Avant’s Rule 651(c) certificate nor identified any specific deficiency in APD
Underwood’s performance other than her failure to independently comply with Rule 651(c),
there is no basis to remand this matter for further second-stage proceedings.
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 27 Affirmed.
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