People v. White , 2021 IL App (5th) 180365-U ( 2021 )


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    2021 IL App (5th) 180365-U
    NOTICE
    NOTICE
    Decision filed 10/21/21. The
    This order was filed under
    text of this decision may be               NO. 5-18-0365
    Supreme Court Rule 23 and is
    changed or corrected prior to
    not precedent except in the
    the filing of a Peti ion for                  IN THE                      limited circumstances allowed
    Rehearing or the disposition of
    under Rule 23(e)(1).
    the same.
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                       )     St. Clair County.
    )
    v.                                              )     No. 96-CF-690
    )
    ANDRE WHITE,                                    )     Honorable
    )     Stephen P. McGlynn,
    Defendant-Appellant.                      )     Judge, presiding.
    ______________________________________________________________________________
    JUSTICE WHARTON delivered the judgment of the court.
    Justice Welch concurred in the judgment.
    Justice Cates specially concurred.
    ORDER
    ¶1       Held: The defendant’s claim of unreasonable assistance of postconviction counsel
    fails where counsel filed Illinois Supreme Court Rule 651(c) (eff. July 1, 2017)
    certificates, the record indicated substantial compliance with its requisites, and
    counsel’s omission of defendant’s “as-applied” constitutional challenge and
    supportive information from his amended postconviction petition did not prevent
    the trial court from considering his claim. The defendant is unable to rebut the
    presumption of reasonable representation and suffered no prejudice where the
    postconviction court was supplied with the challenge and background information
    for consideration. We affirm the court’s judgment denying the defendant’s
    amended postconviction petition.
    ¶2       The State charged the defendant with the first degree murder (720 ILCS 5/9-1(a)(1)
    (West 1994)) of Michael Hetlage. The murder was committed in St. Clair County on or about
    July 8, 1996. The defendant was convicted after a jury trial, and the trial court sentenced the
    defendant to a term of natural-life imprisonment. The defendant directly appealed his conviction
    1
    and sentence to this court. We affirmed. See People v. White, 
    298 Ill. App. 3d 1198
     (1998)
    (table) (unpublished order under Supreme Court Rule 23).
    ¶3     This appeal involves the defendant’s 2017 pro se postconviction petition challenging his
    sentence as unconstitutional “as-applied” to him based upon his age at the time of the crime in
    violation of the eighth amendment of the United States Constitution (U.S. Const., amend. VIII)
    and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
    The postconviction court advanced the defendant’s petition to the second stage and appointed
    counsel. Appointed counsel filed an amended petition. The postconviction court denied the
    defendant’s amended postconviction petition. The defendant appeals, arguing that his appointed
    counsel failed to amend the petition to adequately assert the defendant’s constitutional claims;
    failed to cite case law and/or relevant facts supporting the defendant’s constitutional claims; and
    failed to review parts of the record. For the reasons stated in this order, we affirm the
    postconviction court’s denial of the defendant’s postconviction petition.
    ¶4                                     I. BACKGROUND
    ¶5     We summarize the underlying facts involving the defendant’s arrest, as well as evidence
    from pretrial motion hearings and his trial and sentencing, based upon the unpublished order
    from the defendant’s direct appeal and from the briefs filed in this appeal.
    ¶6     Diane Hetlage, the victim’s wife, testified that on July 8, 1996, Hetlage, an Amway
    distributor, left his home in St. Peters, Missouri, to meet the defendant at St. Louis Centre, a
    former shopping mall in downtown St. Louis, to discuss the possibility of the defendant
    becoming an Amway salesman. This was the second scheduled meeting about Amway
    employment between Hetlage and the defendant.
    2
    ¶7      The next day at about 5:30 or 6 a.m., Diane, who is disabled and confined to a
    wheelchair, called the St. Peters, Missouri, police to report that Hetlage had not returned home
    after his scheduled meeting with the defendant. The St. Peters police called the defendant’s
    grandmother’s phone, as that was the telephone number the defendant provided Diane. The
    police left a message with the defendant’s grandmother asking to have the defendant return the
    call. Diane testified that the defendant called her on that same date and asked her what the police
    wanted. Diane informed the defendant that Hetlage had not returned home from their meeting the
    day before. The defendant confirmed to Diane that he had met with Hetlage the day before but
    stated that he left Hetlage in St. Louis.
    ¶8      Officers Jeffrey Callaway and Tim Langan, both members of the St. Peters Police
    Department, testified that on July 10, 1996, at 8 a.m., they were assigned to investigate Hetlage’s
    missing person report. The officers spoke with Diane, and she informed them that Hetlage had
    not been home or contacted her since 7:45 p.m. on July 8, 1996. Diane informed the officers that
    this was very unusual behavior for Hetlage as he was a responsible man and was the sole
    financial provider for her and their three young children. Diane told the officers that Hetlage was
    devoted to his children, that he dependably came home at regular times, that he rarely failed to
    notify someone of his whereabouts, and that he had never disappeared before then. The officers
    also contacted Hetlage’s employer, Wilikers Restaurant and Bar, and learned that Hetlage had
    been employed there for 10 years and he had always reported to work, but that he was absent
    from work that day.
    ¶9      Next, Officers Callaway and Langan contacted the defendant’s employer at the
    Chesterfield Mall food court. The employer informed the officers that the defendant was no
    longer employed there and provided them with a residential address for the defendant’s mother
    3
    in Washington Park, Illinois. The officers then drove to the defendant’s mother’s house in
    Washington Park, arriving at approximately 1:30 p.m. Officer Callaway went to the front door,
    while Officer Langan watched the side and the rear of the house. Langan noticed a briefcase and
    two cassette tape cases lying partially behind some bushes on the side of the house. One of the
    cassette tape cases was open, and Langan noted that the case contained Amway motivational and
    sales techniques tapes. Additionally, Langan found a business card with Hetlage’s name on it and
    a St. Peters, Missouri, video store receipt lying near the cases.
    ¶ 10   Two children answered the door for Officer Callaway. Callaway talked to the two
    children—the defendant’s brother and sister—on the front porch of the Washington Park house.
    The children advised Callaway that the defendant was not at home but was at a friend’s house.
    Officers Callaway and Langan then contacted the Washington Park Police Department and asked
    for assistance.
    ¶ 11   Officer Clinton McCorkle from the Washington Park Police Department testified that on
    July 10, 1996, at approximately 2:15 p.m., he went to the defendant’s house. Upon arrival,
    Officers Callaway and Langan introduced themselves and told McCorkle that they were
    investigating a missing person report. Then, Callaway and Langan showed McCorkle the items
    they found on the side of the defendant’s house. McCorkle testified that he looked in a vacant
    field adjacent to the defendant’s house searching for a body, but instead he found additional
    documents bearing Hetlage’s name, including a vehicle registration. McCorkle also spoke with a
    neighbor, who informed him that the defendant had been recently released from prison.
    ¶ 12   Then, Callaway informed McCorkle that the defendant’s siblings indicated that they
    knew where to find the defendant. McCorkle asked the defendant’s brother if he would take them
    to the defendant. The defendant’s brother agreed. He took them to another house, where the
    4
    officers found the defendant. They asked the defendant to return to his house so that they could
    talk with him. McCorkle did not inform the defendant about the anticipated subject matter of this
    discussion, and the defendant then refused to speak with the officers or to return to his house
    with them. The defendant advised the officers that he would go nowhere with them unless he
    was placed under arrest. Thereafter, McCorkle placed the defendant in handcuffs and transported
    him back to the defendant’s house. McCorkle read the defendant his Miranda rights. The
    defendant responded by informing McCorkle that he did not understand the Miranda rights
    because he was illiterate.
    ¶ 13   McCorkle then contacted the Illinois State Police. Illinois State Police Special Agent
    Clarence Banks arrived at the defendant’s house and told McCorkle to transport the defendant to
    the police station. Upon arrival at the police station, an inventory of the defendant’s personal
    items was conducted. Among the inventoried items was a watch, which Diane Hetlage
    subsequently identified at trial. She testified that the watch belonged to Hetlage and that it had
    been given to him by his employer on the anniversary of his 10 years of service.
    ¶ 14   Officers Callaway, Langan, and McCorkle testified that at the time of the defendant’s
    arrest, they had a reasonable belief that there was probable cause to arrest the defendant, even
    though they were unaware of any specific crime that he may have committed because Hetlage’s
    body and car had not been discovered. Thereafter, on July 10, 1996, between 5 and 6 p.m.,
    Hetlage’s body was discovered in an East St. Louis alley. Hetlage’s body was nude except for
    socks. Hetlage’s car was discovered the next day at approximately 8 a.m. in Washington Park.
    ¶ 15   The defendant’s friend, Ricky Jenkins, also testified at trial. He testified that he went with
    the defendant to meet Hetlage on July 8, 1996, in St. Louis. When the meeting concluded, the
    defendant convinced Hetlage to provide the defendant and Jenkins with a ride back to Illinois.
    5
    Jenkins testified that Hetlage allowed the defendant to drive his car back to Illinois because
    Hetlage was unfamiliar with Illinois. When they were in East St. Louis, the defendant pulled out
    a gun and made Hetlage get out of the vehicle and step into an alley. He testified that the
    defendant ordered Hetlage to take off his clothes and lie down on the ground. Jenkins stated that
    the defendant shot Hetlage in the back of his head. He testified that prior to the shooting, Hetlage
    asked the defendant for mercy and reminded him that he had a disabled wife and three young
    children. When the defendant got back into Hetlage’s car, the defendant had Hetlage’s watch,
    which he put into his pocket.
    ¶ 16     Jenkins testified that the defendant drove Hetlage’s car back to the defendant’s house.
    Upon arrival, he directed Jenkins to remove three cases from the car and to empty the glove box.
    Jenkins stated that he placed the three cases along the side of the defendant’s house. Jenkins
    assisted the defendant in removing an electric motor scooter from Hetlage’s car—identified at
    trial as one that was used by Diane Hetlage and that was kept in Hetlage’s car. The scooter was
    placed at the back door of the defendant’s house which served as access to the basement of the
    house.
    ¶ 17     On cross-examination, Jenkins acknowledged that on this same night, his cousin, Aaron
    Thomas, rode over to Jenkins’s mother’s house in the backseat of Hetlage’s car. On redirect
    examination, Jenkins testified that he and the defendant were also in the car.
    ¶ 18     Dorothy Jenkins (Jenkins’s mother) and Sharon Funches, who was living at Dorothy’s
    house in July 1996, both testified at trial about Hetlage’s car. Both testified that they saw
    Hetlage’s car at Dorothy’s house in July 1996 and that the defendant was the driver of the car.
    They recognized the car as the same one that was later found in Washington Park on July 11,
    1996, as it had Missouri disabled license plates.
    6
    ¶ 19   The pathologist provided medical testimony at trial that established that Hetlage was shot
    six times in the back of his head. The pathologist testified that two of the wounds were “loose
    contact wounds,” meaning that the gun was fired from less than one half of an inch from
    Hetlage’s head, and that the other four wounds were “distant wounds,” meaning that the gun was
    fired from a distance of at least two feet from Hetlage’s head.
    ¶ 20   Forensic evidence submitted at trial established that the defendant’s fingerprints were
    found both on and inside Hetlage’s car and its trunk and on an envelope that contained
    documents belonging to Hetlage found near the defendant’s house. Additionally, evidence
    established that Diane Hetlage’s electric motor scooter was recovered from the basement of the
    defendant’s house.
    ¶ 21   At trial, the defendant testified in his own defense. He stated that he met the Hetlage
    family when he was working at the Chesterfield Mall. Hetlage gave him his business card and
    then later met with the defendant about working for Amway. Hetlage provided the defendant
    with manuals and reading material. The defendant testified that he decided that he was not
    interested in working for Amway and that he talked about Amway while at Jenkins’s home.
    Jenkins’s mom, Dorothy, suggested that Jenkins needed a job and could possibly work for
    Amway. Thereafter, the defendant testified that he set up a second meeting with Hetlage at St.
    Louis Centre. He and Jenkins went to this meeting.
    ¶ 22   The defendant testified that St. Louis Centre was closed at the time of the meeting, so he,
    Jenkins, and Hetlage walked to Hetlage’s car to talk. The defendant told Hetlage that he was not
    interested in selling Amway, but he introduced Hetlage to Jenkins. The defendant testified that
    Hetlage then dropped him back off at St. Louis Centre and the defendant took a bus back to
    Washington Park. Before he exited Hetlage’s car, the defendant testified that Hetlage told him
    7
    that he and Jenkins were headed to the Casino Queen. The defendant testified that he never saw
    Hetlage again. He denied that he drove Hetlage across the river. He denied unloading items from
    Hetlage’s car at his house.
    ¶ 23     The defendant also testified that on the date of his arrest, Jenkins’s cousin, Aaron
    Thomas, picked him up and drove him over to Jenkins’s house. Thomas gave the defendant a
    watch.
    ¶ 24     Lanaya White, the defendant’s sister, briefly testified at trial. She testified that Ricky
    Jenkins was her boyfriend. She denied seeing Jenkins unload items from a car or seeing any
    items outside of the house before the police asked her about them.
    ¶ 25     At the conclusion of the trial, the jury found the defendant guilty of first degree murder.
    ¶ 26     The State sought the death penalty and argued that the defendant was eligible because he
    was at least 18 years of age at the time of the murder and because the murder was committed
    during an armed robbery. The jury concluded that the defendant was eligible for the death
    penalty. In the second stage of the death penalty proceedings, the defendant’s trial attorney
    argued that the death penalty was inappropriate because of the defendant’s young age of 20 and
    his rehabilitative potential. The defendant’s attorney did not introduce any mitigating evidence
    regarding the defendant’s upbringing, background, or education. At the conclusion of the next
    stage of proceedings, the jury determined that the trial court should not sentence the defendant to
    death.
    ¶ 27     At sentencing, the State asked the trial court to impose a discretionary natural-life
    sentence, arguing that the crime was senseless; that the defendant was dangerous; that he would
    likely commit murder again considering his criminal record and the evidence in this case; and
    that the defendant lacked remorse. In response, the defendant’s attorney asked the trial court to
    8
    exercise its discretion to sentence the defendant to a term of years, arguing that although the
    defendant was incarcerated for armed robbery when he just 17 years of age, he had learned from
    his prison experience; that this offense occurred when the defendant was just 20 years of age;
    and that the defendant was not lacking in remorse, but was proclaiming his innocence. The
    defendant claimed in allocution that he was not violent, that he was not involved in the armed
    robberies committed in 1993, and that he did not commit the murder for which he was convicted.
    He also stated that he took advantage of available educational opportunities while he was
    incarcerated and since he had been released on parole.
    ¶ 28    The presentence investigation (PSI) report showed that the defendant had been
    adjudicated delinquent for several juvenile offenses. The defendant reported that he had received
    his GED and completed seven hours of college classes while imprisoned, that he had been
    involved in a group therapy intervention while incarcerated, and that his only employment
    history was his job at Chesterfield Mall. The officer who prepared the PSI report had requested
    records from the correctional institutions where the defendant had been incarcerated but had not
    received any records by the date of the report. Consequently, the sentencing court was unable to
    confirm the defendant’s educational efforts or determine the nature and extent of the group
    therapy he received while incarcerated.
    ¶ 29    The trial court sentenced the defendant to natural life in prison. The trial court noted that
    the defendant had been released on parole only 49 days before this murder was committed. The
    trial court stated:
    “I believe in all my heart that [the defendant] is a—is a threat to anybody he
    encounters, *** the type of defendant who has the potential to kill anybody for any
    reason and in fact society has a right to be protected from [the defendant] and people like
    [the defendant]. *** I want to make it clear that I think [the defendant] is a threat to each
    and every one of us, that he is the type of individual *** he doesn’t learn at all and in fact
    we must be protected from [the defendant].”
    9
    The trial court considered that the defendant’s age at sentencing was “only 21” but concluded
    that the nature of the crime warranted the natural-life sentence.
    ¶ 30   A new attorney representing the defendant filed a motion to reconsider the sentence on
    his behalf. The attorney asked the court to resentence the defendant to an imprisonment term of
    around 40 years, citing the defendant’s youth. The new attorney noted that the defendant’s trial
    counsel had not presented mitigating evidence during the death penalty phase or at sentencing.
    Although the new attorney intimated that trial counsel should have presented mitigating evidence
    at earlier stages of the proceedings, he did not specify what evidence could have been presented.
    Defense counsel argued that a 40-year sentence would still allow the defendant the opportunity
    to learn from his mistakes and to be released in his 60s, while spending the prime years of his life
    in prison. The trial court denied this motion, stating the murder was brutal and heinous. The trial
    court called the defendant “a cold-blooded killer” and stated that he would probably still commit
    murder even at the age of 60.
    ¶ 31   The defendant appealed his conviction and sentence. In 1998, this court affirmed. People
    v. White, 
    298 Ill. App. 3d 1198
     (1998) (table) (unpublished order under Supreme Court Rule 23).
    In that appeal, this court evaluated the defendant’s sentence and held that the natural-life
    sentence was not excessive. White, slip order at 13-14. We noted that the trial court considered
    the fact that the defendant was 21 years of age at sentencing, that Hetlage was shot “in cold
    blood” six times in the back of the head, and that the murder was committed during an armed
    robbery. Additionally, we stated that the trial court found that Hetlage was unarmed, posed no
    threat to the defendant, and begged the defendant for mercy by reminding the defendant of his
    disabled wife and three young children. This court noted that the trial court had also indicated
    that the defendant made Hetlage remove his clothing to further humiliate him before killing him.
    10
    We found that the trial court had reviewed the defendant’s PSI report and was aware that the
    defendant committed this murder while on parole for four armed robberies committed in 1993.
    We indicated that the trial court also concluded that the seriousness of the crime outweighed any
    rehabilitation potential the defendant possessed, and that the natural-life sentence was necessary
    to protect society from the defendant. We concluded that based on these factors, as well as the
    trial court’s statement that it had considered all the statutory factors, the natural-life sentence did
    not constitute an abuse of discretion.
    ¶ 32   The defendant filed his pro se postconviction petition on June 15, 2017. The defendant
    alleged that his sentence violated the eighth amendment prohibition on cruel and unusual
    punishment. U.S. Const., amend. VIII. He also argued that his sentence would have been
    unconstitutional for a juvenile, and that because of his young adult age and lack of mental
    maturity when the crime was committed, he should have been treated as a juvenile. The
    defendant also argued that his sentence violated the Illinois Constitution’s proportionate
    penalties and rehabilitations clauses “as applied” to him because he was only 20 years old when
    he committed the crime. Ill. Const. 1970, art. I, § 11. In support of his petition, the defendant
    attached six articles discussing the brain development of young adults. He stated that the articles
    supported his argument that the brain of an 18- to 24-year-old individual lacks the maturity of an
    adult, and that the young adult brain is no more developed than a juvenile brain. The defendant
    also provided background information about his childhood and upbringing that included an
    absentee father, an alcoholic and drug-addicted mother, a house with no utilities or running water
    that was infested with roaches and rats, a history of psychiatric treatment since he was 6 years of
    age, and an introduction to the Disciples street gang when he was 10 years of age via his
    mother’s boyfriend. He indicated that most of his life had been spent in juvenile detention and
    11
    adult prison. He stated that he had a job at the time of the crime and had hopes of obtaining a job
    in an area steel mill where his uncle was employed. After reviewing the defendant’s pro se
    petition, the postconviction court concluded that the petition stated the gist of a constitutional
    claim and advanced the petition to the second stage.
    ¶ 33    On September 13, 2017, the postconviction court appointed counsel to represent the
    defendant. Appointed counsel asked the clerk of the court to provide him with pleadings and
    transcripts from the underlying criminal case as well as a copy of the pro se petition. He did not
    ask the clerk of the court to provide him with copies of the trial exhibits.
    ¶ 34    Thereafter, on February 22, 2018, appointed counsel filed an amended petition which
    included the defendant’s affidavit that addressed the timeliness of the petition. He requested that
    the defendant be resentenced because his designation as an adult was arbitrary. He attached the
    same articles that were attached to the defendant’s pro se petition. Appointed counsel alleged
    that the defendant “was denied protection from cruel and unusual punishment as provided by the
    United States Constitution and Illinois Constitution, was denied the protection of the
    proportionate penalties clause of the Illinois Constitution, and was denied the protection of the
    Rehabilitation Clause of the Illinois Constitution.” He did not specifically assert that the sentence
    was unconstitutional “as applied” to the defendant. He also did not include the potentially
    mitigating background facts that had been included in the defendant’s pro se postconviction
    petition.
    ¶ 35    In response, the State filed its motion to dismiss the defendant’s amended postconviction
    petition. The State argued that the petition was not timely due to the defendant’s culpable
    negligence. Alternatively, the State contended that the defendant’s claim was barred by
    res judicata because this court affirmed the trial court’s discretionary life sentence after finding
    12
    that the trial court considered the defendant’s youth and rehabilitative potential. In substantive
    response to the defendant’s arguments, the State argued that his sentence was not
    unconstitutional because he was an adult when he committed the murder, and he received a
    discretionary natural-life sentence. Further, the State contended that no court has accepted the
    research included in the articles the defendant attached to the petition. Finally, the State
    contended that even if the research was accepted, the defendant failed to meet his burden of
    proof that his cognitive function and intellectual development were impacted as discussed in the
    research articles.
    ¶ 36    The postconviction court held its hearing on the defendant’s amended petition. The court
    indicated that it had reviewed the pleadings and the posttrial motion and sentencing hearing
    transcript. The court concluded that the defendant was not culpably negligent for filing his
    petition late. The State argued that, during the sentencing hearing, trial counsel argued that the
    defendant’s youth was a mitigating factor, and the sentencing court considered this factor and
    thereby considered his young adult status. Therefore, the State argued, the defendant was not
    unfairly sentenced. The State also argued that when the sentencing hearing took place, the law
    only applied to a defendant who was under the age of 18 when the crime was committed,
    because there was no case law supporting the applicability of Miller to a young adult 18 years of
    age or older such as the defendant. Finally, the State argued that the defendant’s petition should
    be dismissed because he had not “provided any specific nexus between his own cognitive state
    and the research that he presented, making the research essentially speculative and conclusory.”
    ¶ 37    In response, appointed counsel argued that the articles attached to the amended
    postconviction petition were all dated long after the defendant’s sentencing and thus were not
    considered by the sentencing judge. He argued that articles constituted “new evidence” and that
    13
    the defendant was therefore entitled to a third-stage evidentiary hearing. The postconviction
    court asked appointed counsel to comment on the fact that while the defendant was a young adult
    when he committed the crime, he was certainly not a juvenile. Appointed counsel responded that
    while the defendant was not a juvenile offender, the articles supported the claim that his mental
    state was that of a juvenile.
    ¶ 38   The postconviction court noted that current science finds that a young adult’s brain does
    not fully mature until the age of 25—that young adult decision-making was more impulsive. The
    court referenced the Miller v. Alabama, 
    567 U.S. 460
     (2012), and People v. Holman, 
    2017 IL 120655
    , decisions and stated that those cases required sentencing courts to consider the Miller
    factors—life and upbringing, peer pressure, and possibilities of rehabilitation—if the offender
    was a juvenile. The court inquired about the existence of the defendant’s PSI, noting that
    information concerning the Miller factors is often included in PSI reports. The postconviction
    court then discussed aspects of the sentencing hearing, noting that the defendant maintained his
    innocence and that the sentencing court considered the short period of time between the
    defendant’s release from prison on parole and the murder of Hetlage. The court also mentioned
    the direct appeal and this court’s conclusion that the defendant’s natural-life sentence was not
    excessive because of the facts of the crime and the sentencing court’s consideration of his young
    age and rehabilitative potential.
    ¶ 39   The postconviction court then took the matter under advisement and stated:
    “I do think twenty is a young age, and—but I think the state of the law is probably
    that once you get beyond juvenile status, the concerns reflected in the *** U.S. Supreme
    Court case of Miller and as just reiterated by our own Supreme Court in Holman are
    probably mitigated—certainly mitigated, perhaps abated, meaning no longer the concern.
    Because your sentence was evaluated by the Illinois Appellate Court on grounds
    of whether it was excessive given your age of twenty-one, I don’t get to—I don’t get to
    reverse the Appellate Court. *** But I think going through it, the question is were you
    14
    entitled to a meaningful consideration of those factors that impact a juvenile that we don’t
    consider as impacting an adult.”
    ¶ 40   During the hearing, the postconviction court asked appointed counsel if he had any case
    law supporting the argument that a defendant 18 years of age or older could be treated like a
    juvenile. Counsel indicated that he was not then aware of any cases, but that he would conduct a
    search. Later the postconviction court entered an order indicating its receipt of cases in support
    of the defendant’s postconviction arguments. The State sent a letter to the postconviction court to
    distinguish the two cases provided by appointed counsel: People v. Harris, 
    2016 IL App (1st) 141744
    , ¶¶ 56, 68, rev’d in part, 
    2018 IL 121932
    , and People v. House, 
    2015 IL App (1st) 110580
    , vacated and remanded, No. 122134 (Ill. Nov. 28, 2018) (supervisory order).
    ¶ 41   On June 28, 2018, the postconviction court entered its written order dismissing the
    defendant’s amended postconviction petition, noting that it had reviewed the sentencing hearing
    transcript and believed that the defendant’s youth and rehabilitative potential were adequately
    considered as required by Miller and Holman.
    ¶ 42   Appointed counsel filed three separate certificates pursuant to Illinois Supreme Court
    Rule 651(c) (eff. July 1, 2017) on April 16, 2018, July 3, 2018, and October 29, 2018. Further
    information regarding these certificates will be included in the analysis section of this order.
    ¶ 43   The defendant timely filed his notice of appeal of the postconviction court’s June 28,
    2018, order denying his amended postconviction petition.
    ¶ 44                                     II. ANALYSIS
    ¶ 45   On appeal, the defendant claims that appointed counsel provided unreasonable assistance
    in amending his petition because he did not adequately frame the defendant’s constitutional
    arguments as “as-applied” challenges, he did not cite supporting case law and background facts,
    and he did not review the PSI.
    15
    ¶ 46   An individual who has been convicted and is serving an Illinois criminal sentence can file
    a petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
    2016)) to allege that their Illinois and federal constitutional rights were denied. People v.
    Coleman, 
    183 Ill. 2d 366
    , 378-79 (1998). A proceeding under the Act has three stages. People v.
    Gaultney, 
    174 Ill. 2d 410
    , 418-19 (1996). Here, the postconviction court dismissed this case at
    the second stage. At the second stage, the postconviction court appoints an attorney to represent
    the defendant. 725 ILCS 5/122-4 (West 2016). The State must file an answer or file a motion to
    dismiss. 
    Id.
     § 122-5. Then, the postconviction court must determine if the defendant has made a
    substantial showing of a constitutional violation. People v. Edwards, 
    197 Ill. 2d 239
    , 246 (2001).
    The postconviction court must accept all well-pleaded factual allegations as true, and the court
    must not engage in any fact-finding or credibility determinations. Coleman, 
    183 Ill. 2d at 385
    .
    The trial court must dismiss the petition if the defendant has not made the required substantial
    showing. People v. Ward, 
    187 Ill. 2d 249
    , 255 (1999). The postconviction court will hold an
    evidentiary hearing if the defendant gets past this second stage to the third stage. 725 ILCS
    5/122-6 (West 2016).
    ¶ 47   We next turn to the level of legal assistance required in a postconviction process.
    Initially, we note that the right to counsel in postconviction proceedings is based in statute—not
    the federal and state constitutions. See 
    id.
     § 122-4. Therefore, postconviction petitioners are only
    guaranteed the level of legal assistance required by the Act. People v. Owens, 
    139 Ill. 2d 351
    ,
    364 (1990). While a reasonable level of assistance is required by section 122-4 of the Act (725
    ILCS 5/122-4 (West 2016)) and Illinois Supreme Court Rule 651(c) (eff. July 1, 2017),
    defendants are not guaranteed the same level of legal assistance constitutionally guaranteed to
    16
    defendants at trial. People v. Pendleton, 
    223 Ill. 2d 458
    , 472 (2006); People v. Greer, 
    212 Ill. 2d 192
    , 204 (2004); Owens, 
    139 Ill. 2d at 364
    .
    ¶ 48   The Act does not require that appointed counsel provide more than “reasonable
    assistance,” and thus, any constitutional claim of ineffective assistance of appointed counsel is
    outside of the scope of the Act and is not allowed. People v. Pinkonsly, 
    207 Ill. 2d 555
    , 567
    (2003) (citing People v. Wright, 
    149 Ill. 2d 36
    , 64 (1992)); Ill. S. Ct. R. 651(c). “A defendant
    may not properly assert a constitutional claim of ineffective assistance of postconviction counsel
    [citation] because a postconviction petitioner is guaranteed only the level of assistance provided
    by the *** Act.” Pinkonsly, 
    207 Ill. 2d at 567
    ; People v. Davis, 
    156 Ill. 2d 149
    , 158-59 (1993)
    (citing People v. Flores, 
    153 Ill. 2d 264
    , 276 (1992)).
    ¶ 49   Supreme Court Rule 651(c) provides the foundation for our appellate review. To ensure
    reasonable assistance, Rule 651(c) requires that the record in postconviction proceedings
    demonstrate that postconviction counsel meet three specific obligations. People v. Lander, 
    215 Ill. 2d 577
    , 584 (2005). Counsel must (1) consult with the defendant to ascertain his claims of
    error, (2) examine the trial court record, and (3) make any amendments to the petition that are
    necessary to adequately present the defendant’s claims to the postconviction court. Ill. S. Ct. R.
    651(c). The duty to amend the petition requires postconviction counsel to “shape[ ] the
    petitioner’s claims into proper legal form.” People v. Perkins, 
    229 Ill. 2d 34
    , 43-44 (2007).
    Appointed counsel must make amendments deemed necessary to “adequately” present the claims
    the defendant raised in the pro se petition. People v. Wallace, 
    2018 IL App (5th) 140385
    , ¶ 30
    (citing People v. Turner, 
    187 Ill. 2d 406
    , 412 (1999)). However, appointed counsel is not
    required to file an amended petition if the claims raised by the defendant lack merit. Id.; Davis,
    
    156 Ill. 2d at 164
    . Similarly, the Rule 651(c) requirement that appointed counsel must examine
    17
    the record only requires that counsel “examine as much of the [record] as is necessary to
    adequately present and support those constitutional claims raised by the petitioner.” Davis, 
    156 Ill. 2d at 164
    .
    ¶ 50    One aspect of “reasonable assistance” is compliance with Supreme Court Rule 651(c). Ill.
    S. Ct. R. 651(c); People v. Daniels, 
    388 Ill. App. 3d 952
    , 960 (2009) (citing People v. Bashaw,
    
    361 Ill. App. 3d 963
    , 967 (2005)). A Rule 651(c) certificate filed by appointed counsel presents a
    rebuttable presumption that counsel provided reasonable assistance. People v. Profit, 
    2012 IL App (1st) 101307
    , ¶ 19. The defendant has the burden to overcome this presumption by
    establishing that his or her appointed counsel did not comply with the mandatory Rule 651(c)
    duties. 
    Id.
     The question of whether the defendant was provided with a reasonable level of
    assistance is reviewed de novo. Wallace, 
    2018 IL App (5th) 140385
    , ¶ 31. When a defendant
    claims that appointed counsel deficiently performed his or her duties or in some other way failed
    to provide reasonable assistance, “the defendant must show not only how the attorney’s
    performance was deficient or unreasonable but also what prejudice resulted from that
    deficiency.” People v. Landa, 
    2020 IL App (1st) 170851
    , ¶ 58.
    ¶ 51    Before we review the specific claims raised by the defendant on appeal, we will review
    the three obligations imposed upon appointed counsel by Supreme Court Rule 651(c) to
    determine in a general sense whether appointed counsel’s actions and filings complied with the
    Rule 651(c) obligations. We start with the three Rule 651(c) certificates filed with the court.
    ¶ 52    In the first certificate of compliance filed on April 16, 2018, appointed counsel stated that
    he consulted with the defendant to ascertain his contentions of deprivation of constitutional
    rights on five occasions: December 4, 2017 (in person), October 17, 2017 (correspondence),
    December 6, 2017 (correspondence), December 21, 2017 (correspondence), and January 29,
    18
    2017. 1 In addition, appointed counsel stated that he reviewed correspondence he received from
    the defendant dated December 18, 2017, and February 12, 2018. Appointed counsel stated that
    he “examined the entire record of the proceedings of trial.” Finally, counsel stated that he made
    amendments to the defendant’s pro se petition necessary for an adequate presentation of the
    defendant’s claims.
    ¶ 53    In the July 3, 2018, certificate of compliance, appointed counsel stated that he consulted
    with the defendant to ascertain his contentions of deprivation of constitutional rights. In addition
    to dates listed in the April 16, 2018, certificate, he listed additional correspondence he sent to the
    defendant on April 19, 2018, and May 18, 2018. Counsel also stated that he reviewed additional
    correspondence he received from the defendant on March 13, 2018, and April 25, 2018. Finally,
    he met with the defendant a second time on April 16, 2018. Appointed counsel stated that he
    reviewed the entire record of the proceedings at trial and that he amended the pro se petition as
    necessary to adequately present the defendant’s claims.
    ¶ 54    Finally, in the October 29, 2018, certificate of compliance, appointed counsel indicated
    that he consulted with the defendant, that he examined the entire trial record, and that he made
    any amendments necessary for adequate presentation of the defendant’s claims.
    ¶ 55    Before considering whether counsel met these obligations, it would be helpful to review
    the relevant case law that provides the foundation for the defendant’s argument on appeal. In
    2012, the United States Supreme Court handed down its opinion in Miller v. Alabama. There,
    two 14-year-old offenders were convicted of murder and sentenced to life without the possibility
    of parole. Miller, 
    567 U.S. 460
    . In both cases, the sentencing courts had no discretion to impose
    a lesser punishment. 
    Id.
     The Court explained that:
    1
    Given the sequence of the dates in this certificate, we believe that this was a typographical error
    and that appointed counsel intended the date to be January 29, 2018—not January 29, 2017.
    19
    “Mandatory life without parole for a juvenile precludes consideration of his
    chronological age and its hallmark features—among them, immaturity, impetuosity, and
    failure to appreciate risks and consequences. It prevents taking into account the family
    and home environment that surrounds him—and from which he cannot usually extricate
    himself—no matter how brutal or dysfunctional. It neglects the circumstances of the
    homicide offense, including the extent of his participation in the conduct and the way
    familial and peer pressures may have affected him. Indeed, it ignores that he might have
    been charged and convicted of a lesser offense if not for incompetencies associated with
    youth—for example, his inability to deal with police officers or prosecutors (including on
    a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally,
    this mandatory punishment disregards the possibility of rehabilitation even when the
    circumstances most suggest it.” 
    Id. at 477-78
    .
    Ultimately, the United States Supreme Court held that “the Eighth Amendment forbids a
    sentencing scheme that mandates life in prison without possibility of parole for juvenile
    offenders.” 
    Id. at 479
    . In 2016, the United States Supreme Court stated in Montgomery v.
    Louisiana, 
    577 U.S. 190
    , 212 (2016), that Miller stated a substantive rule of constitutional law,
    and its “conclusion that the sentence of life without parole is disproportionate for the vast
    majority of juvenile offenders raises a grave risk that many are being held in violation of the
    Constitution.” Montgomery established that Miller was to be construed retroactively. 
    Id.
    ¶ 56   After the Miller and Montgomery decisions, the Illinois legislature enacted section 5-4.5-
    105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West 2016)), which mandated
    that sentencing courts consider the following mitigating factors for offenders who were under the
    age of 18 when they committed an offense:
    “(1) the person’s age, impetuosity, and level of maturity at the time of the offense,
    including the ability to consider risks and consequences of behavior, and the presence of
    cognitive or developmental disability, or both, if any;
    (2) whether the person was subjected to outside pressure, including peer pressure,
    familial pressure, or negative influences;
    (3) the person’s family, home environment, educational and social background,
    including any history of parental neglect, physical abuse, or other childhood trauma;
    (4) the person’s potential for rehabilitation or evidence of rehabilitation, or both;
    20
    (5) the circumstances of the offense;
    (6) the person’s degree of participation and specific role in the offense, including
    the level of planning by the defendant before the offense;
    (7) whether the person was able to meaningfully participate in his or her defense;
    (8) the person’s prior juvenile or criminal history; and
    (9) any other information the court finds relevant and reliable, including an
    expression of remorse, if appropriate. However, if the person, on advice of counsel
    chooses not to make a statement, the court shall not consider a lack of an expression of
    remorse as an aggravating factor.” 
    Id.
    This statute took effect on January 1, 2017.
    ¶ 57   Thereafter, the Illinois Supreme Court delivered its opinion in People v. Holman, 
    2017 IL 120655
    . In that case, the defendant was 17 years old when he committed murder. Id. ¶ 1. The
    court discretionarily sentenced him to life without parole for this 1979 murder. Id. ¶¶ 1, 2. At
    issue was whether his original sentencing hearing complied with Miller v. Alabama. Id. ¶ 1. In
    Holman, the supreme court adopted Miller factors in cases where a court has the discretion to
    sentence a juvenile defendant to life imprisonment without parole, stating that this sentence
    could only be imposed “if the trial court determines that the defendant’s conduct showed
    irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility
    of rehabilitation.” Id. ¶ 46. The supreme court provided directions to courts facing this situation
    as follows:
    “The court may make that decision only after considering the defendant’s youth and its
    attendant characteristics. Those characteristics include, but are not limited to, the
    following factors: (1) the juvenile defendant’s chronological age at the time of the
    offense, and any evidence of his particular immaturity, impetuosity, and failure to
    appreciate risks and consequences; (2) the juvenile defendant’s family and home
    environment; (3) the juvenile defendant’s degree of participation in the homicide and any
    evidence of familial or peer pressures that may have affected him; (4) the juvenile
    defendant’s incompetence, including his inability to deal with police officers or
    21
    prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile
    defendant’s prospects for rehabilitation. Id. (citing Miller, 
    567 U.S. at 477-78
    ).
    ¶ 58   The Holman court noted the difficulty facing courts in situations where the juvenile
    defendant was sentenced before our legislature enacted section 5-4.5-105 of the Unified Code of
    Corrections, stating that “any inquiry into the Miller factors is backwards-looking.” Id. ¶ 47. The
    court confirmed that when revisiting a juvenile’s life-without-parole sentence, the only evidence
    that matters is the evidence of the defendant’s youth and the associated characteristics that
    existed at sentencing. Id. “Whether such evidence exists depends upon the state of the record in
    each case. A court revisiting a discretionary sentence of life without parole must look at the cold
    record to determine if the trial court considered such evidence at the defendant’s original
    sentencing hearing.” Id. The court reviewed the record in Holman and concluded that while the
    sentencing court had no evidence regarding any of the statutory factors in mitigation, and only
    some evidence related to the Miller factors, there was ample evidence in aggravation. Id. ¶ 50.
    The mitigating evidence that was considered by the Holman sentencing court included
    information about the death of the defendant’s father and stepfather while he was a juvenile, his
    limited education, and his neurological and intellectual impairment. Id. ¶¶ 8, 11-12. Considering
    all evidence in mitigation and aggravation, the supreme court concluded that the sentencing
    court’s conclusion that the defendant was beyond rehabilitation passed constitutional muster
    under Miller. Id.
    ¶ 59   We note that in this case the defendant was sentenced on December 19, 1996, long before
    these cases were decided. Our review in this case is similar to the review described in People v.
    Holman. We must look at the cold record to determine if the defendant, who received a natural-
    life sentence for a murder committed when he was 20 years old, is entitled to a new sentencing
    hearing and reversal of the trial court’s order denying his request.
    22
    ¶ 60   In this appeal, the defendant first argues that appointed counsel did not adequately frame
    his constitutional challenge as an “as-applied” challenge. The defendant also alleges that
    appointed counsel did not provide support for his “as-applied” constitutional challenge with case
    law or with the inclusion of supportive information about the defendant’s upbringing and
    background. Finally, the defendant argues that appointed counsel failed to review his PSI report
    as part of his review of the record. He asks this court to remand his case for further second-stage
    proceedings and to direct the postconviction court to appoint new counsel.
    ¶ 61                               A. “As-Applied” Challenge
    ¶ 62   The defendant first argues that his appointed counsel did not adequately present his claim
    that the life sentence was unconstitutional “as applied” to him. He presented an unconstitutional
    “as-applied” claim in his pro se postconviction petition and cited the eighth amendment of the
    United States Constitution (U.S. Const., amend. VIII), which prohibits “cruel and unusual
    punishments,” and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,
    art. I, § 11), which mandates that “[a]ll penalties shall be determined both according to the
    seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
    “A statute may be deemed unconstitutionally disproportionate if (1) the punishment for the
    offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
    sense of the community; (2) similar offenses are compared and the conduct that creates a less
    serious threat to the public health and safety is punished more harshly; or (3) identical offenses
    are given different sentences.” People v. Miller, 
    202 Ill. 2d 328
    , 338 (2002). In People v. Miller,
    the Illinois Supreme Court opted not to define what type of punishment would be deemed cruel,
    degrading, or shockingly disproportionate, stating that “as our society evolves, so too do our
    23
    concepts of elemental decency and fairness which shape the ‘moral sense’ of the community.”
    
    Id. at 339
    .
    ¶ 63    The Illinois Supreme Court has held that sentencing requirements established by the
    United States Supreme Court in Miller v. Alabama do not apply to persons 18 years of age or
    older in a facial constitutional challenge. People v. Harris, 
    2018 IL 121932
    , ¶ 61. We note that
    although the eighth amendment challenge in People v. Harris was a facial challenge and limited
    to those defendants under the age of 18, the Illinois Supreme Court did not expressly state that an
    “as-applied” challenge was unavailable to those defendants 18 years of age or older.
    ¶ 64    The defendant cites to People v. Thompson, 
    2015 IL 118151
    , ¶¶ 36-38, 44, an Illinois
    Supreme Court opinion, for the proposition that a challenge to a life sentence for a young adult
    must be framed as an “as-applied” constitutional challenge. The defendant in Thompson raised
    both a facial constitutional challenge and an as-applied constitutional challenge to the sentencing
    statute. Id. ¶ 17. He argued that the sentencing statute was unconstitutional as applied to him
    because he was 19 years old on the date of the crime, he had no criminal history, and he
    committed the offense after years of parental abuse. Id. The Thompson court distinguished an
    “as-applied” challenge from a facial challenge. The supreme court noted that with a facial
    challenge, the argument presented is that a statute is unconstitutional under “any set of facts, i.e.,
    the specific facts related to the challenging party are irrelevant.” Id. ¶¶ 36-37 (citing People v.
    Garvin, 
    219 Ill. 2d 104
    , 117 (2006)). Conversely, the supreme court noted that an “as-applied”
    challenge claims that a statute is unconstitutional “as it applies to the facts and circumstances of
    the challenging party.” 
    Id.
     “By definition, an as-applied constitutional challenge is dependent on
    the particular circumstances and facts of the individual defendant or petitioner.” 
    Id.
     Although the
    supreme court distinguished the two constitutional challenges, the holding in Thompson was
    24
    simply that a defendant cannot raise an “as-applied” constitutional challenge for the first time on
    appeal, and not that constitutional arguments against excessive sentencing for a young adult must
    be presented as “as-applied” challenges. Id. ¶ 44.
    ¶ 65   Similarly, the defendant cites to Harris, 
    2016 IL App (1st) 141744
    , ¶¶ 56, 68, and House,
    
    2015 IL App (1st) 110580
    , ¶¶ 101-02, to further support his claim “that a young adult’s
    challenge to a life sentence under the proportionate penalties clause of the Illinois Constitution
    should be framed as an ‘as-applied’ challenge.” Both cases involved an “as-applied”
    constitutional challenge. See Harris, 
    2016 IL App (1st) 141744
    , ¶¶ 57-69 (on direct appeal from
    his first degree murder conviction (crime committed at 18 years of age) and 76-year aggregate
    term of imprisonment, the appellate court found that the defendant’s “as-applied” challenge to
    the proportionate penalties clause of the Illinois Constitution had merit due to his youth and his
    rehabilitative potential); House, 
    2015 IL App (1st) 110580
    , ¶¶ 83-102 (on appeal from dismissal
    of the defendant’s second stage postconviction petition, the appellate court affirmed the
    dismissal but vacated the natural-life sentence for two counts of first degree murder on a theory
    of accountability (crimes committed at 19 years of age) and remanded for a new sentencing
    hearing concluding that his sentence violated the proportionate penalties clause of the Illinois
    Constitution based on the defendant’s youth, that he was only a lookout during the commission
    or the crime, that the shooter received the identical sentence, and that he had no history of prior
    violent crimes).
    ¶ 66   There is no question that there is a distinction between a facial and an “as-applied”
    constitutional challenge. Similarly, there is no question that appointed counsel in this case did
    not label the defendant’s constitutional challenges in the amended petition as “as-applied”
    challenges. The 651(c) certificates filed by appointed counsel provide no insight into his decision
    25
    to remove the “as-applied” challenges. Appointed counsel may have believed, after review of the
    case and the pro se petition, that the “as-applied” claims were frivolous, spurious, or
    nonmeritorious. See Greer, 
    212 Ill. 2d at 205
     (stating that postconviction counsel is not required
    “to advance frivolous or spurious claims,” and that doing so would violate counsel’s obligations
    under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994)). It is worth noting that this court has
    been reluctant to extend House and find the protections of Miller applicable in cases involving
    defendants who, like the defendant in this case, were active participants in the offenses and who
    were no longer “on the cusp between a juvenile and adult” (People v. White, 
    2020 IL App (5th) 170345
    , ¶ 28).
    ¶ 67   It is worth noting that, while appointed counsel did not explicitly frame the constitutional
    claims as “as-applied” challenges, he also did not explicitly frame them from a facial
    perspective—that is, he did not assert that the two provisions were unconstitutional under “any
    set of facts” (Thompson, 
    2015 IL 118151
    , ¶¶ 36-37 (citing Garvin, 
    219 Ill. 2d at 117
    )). Although
    Thompson, House, and Harris did not expressly mandate an “as-applied” presentation of
    constitutional challenges, for a claim such as the defendant’s youth-based sentencing challenge
    to be viable under the current state of the law, the claim must be framed as an “as-applied”
    challenge and supported by factual allegations showing that the Miller factors should be applied
    to the particular young adult defendant. See, e.g., People v. Ross, 
    2020 IL App (1st) 171202
    ,
    ¶ 26; People v. Bland, 
    2020 IL App (3d) 170705
    , ¶ 14; People v. Daniels, 
    2020 IL App (1st) 171738
    , ¶ 34.
    ¶ 68   In this case, as just discussed, the defendant’s claim was not clearly labeled as either an
    “as-applied” challenge or a facial challenge, although, as we will discuss in more detail later, the
    postconviction court appears to have treated it as an “as-applied” challenge. In addition, the facts
    26
    supporting the defendant’s constitutional claims—the facts and legal arguments found by the
    postconviction court to state the gist of a constitutional claim—were not included in the amended
    petition filed by appointed counsel. The only time that these mitigating facts were presented to a
    court of law was in the defendant’s pro se postconviction petition. The defendant’s PSI
    contained no reference to his upbringing other than his juvenile and adult criminal charges. The
    defendant’s trial attorney did not present these facts to the court at his sentencing hearing.
    Posttrial counsel referenced unspecified mitigating facts in noting that the defendant’s trial
    attorney should have presented the mitigating facts to the court at sentencing. However, posttrial
    counsel did not provide the court with any details. The defendant included these “as-applied”
    background facts in his pro se petition. Then, postconviction counsel omitted the mitigating facts
    in amending the petition.
    ¶ 69   The omitted “as-applied” details about the defendant’s childhood and young adulthood
    are as follows: the defendant began psychiatric care at the age of six; the defendant was in and
    out of juvenile detention and the Illinois Department of Corrections; the defendant did what he
    had to do in order to ensure that his two siblings had food to eat; the house where the defendant
    and his siblings lived did not have electricity, gas, or water and was infested with roaches and
    rats; and the defendant’s father was absent. The defendant’s mother began dating an ex-convict
    who was a member of the Gangster Disciples and she encouraged the 10-year-old defendant to
    interact with him; at that same age, the defendant’s mother was addicted to alcohol and crack
    cocaine; each time the defendant was released from detention or prison, his mother had him “go
    out and do things to provide her with drug money”; and after the defendant was released from
    prison, he attempted to break away from his mother, who was still addicted to drugs, but she
    advised him “to let go of the idea of working for a living.”
    27
    ¶ 70   We note that appointed postconviction counsel filed the defendant’s amended petition in
    this case in February of 2018, prior to the issuance of most of the decisions we relied upon in
    concluding that a young adult’s youth-based sentencing challenge is not viable unless framed as
    an “as-applied” challenge and supported by pertinent factual allegations. We also note that
    counsel’s Rule 651(c) certificates establish that he otherwise complied with the rule. Even if we
    were to find—and we do not—that appointed counsel’s representation was deficient in this case,
    that finding would not end our inquiry. The defendant would also need to demonstrate that
    appointed counsel’s failure to properly present his constitutional challenges prejudiced him. See
    Landa, 
    2020 IL App (1st) 170851
    , ¶ 58. As we will explain in more detail, counsel’s framing of
    the issue did not prevent the postconviction court’s consideration of his “as-applied” claims.
    ¶ 71   The defendant’s pro se petition was in the common law record. Attached to the
    defendant’s petition was his affidavit sworn under oath and signed in the presence of a notary
    public. The postconviction court reviewed and considered the defendant’s pro se petition in
    determining that the defendant stated a gist of a constitutional claim warranting the petition’s
    progression to the second stage. The postconviction court’s focused consideration of the issues at
    the hearing on the defendant’s amended postconviction petition displayed the court’s intent to
    provide the defendant with a hearing based on the merits of his claims. In the court’s order
    denying the defendant’s request for a new sentencing hearing, the judge indicated that he had
    “reviewed the file, pleadings of the parties, the transcript of the sentencing hearing, [and] the 5th
    Dist[rict] Appellate Court’s Rule 23 decision.” Although the amended postconviction petition
    contained none of the mitigating background details about the defendant’s family life, education,
    job, and criminal histories, the pro se petition did contain that information. The pro se petition
    was part of the court file reviewed by the postconviction court. Where an original pleading is
    28
    verified, the original pleading remains part of the record even when an amended pleading is
    filed. Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co., 
    401 Ill. App. 3d 83
    , 86
    (2010) (citing Robins v. Lasky, 
    123 Ill. App. 3d 194
    , 198 (1984)).
    ¶ 72    From the transcript of the hearing on the defendant’s amended postconviction petition,
    the postconviction court carefully approached the process as indicated in more detail in
    paragraphs 37 to 39 of this order. The court noted the current science regarding a young adult’s
    brain, cited to the specific standards outlined in Miller v. Alabama and People v. Holman, and
    asked about the PSI report, where there could be additional mitigating background information.
    The postconviction court discussed the sentencing court’s analysis and consideration of factors in
    mitigation and aggravation and this court’s determination that the sentence was not excessive
    despite the defendant’s young adult status. The court noted that the defendant was only 20 years
    old when the crime was committed.
    ¶ 73    The postconviction court also carefully reviewed the sentencing hearing transcript to
    determine if the “cold record” contained sufficient detail to ensure that the sentencing court
    adequately considered the Miller factors. Holman, 
    2017 IL 120655
    , ¶¶ 47, 50. The
    postconviction court concluded that the sentencing court had considered some of the Miller
    factors—the defendant’s young adult status and rehabilitative potential—before sentencing the
    defendant to a natural-life sentence. We note that the postconviction court was aware of the
    sentencing judge’s statements expressly finding that the defendant was likely to remain a danger
    to the public for the remainder of his life. 2 Therefore, implicit in the postconviction court’s
    2
    In Jones v. Mississippi, the United States Supreme Court stated that Miller does not require a
    sentencing court to make an explicit factual finding of permanent incorrigibility before sentencing a
    juvenile murderer under the age of 18 to a life without an opportunity for parole. Jones v. Mississippi, 
    593 U.S. __
    , __, 
    141 S. Ct. 1307
    , 1318-19 (2021). The eighth amendment allows a juvenile offender to be
    sentenced to life without parole if the sentence is not mandatory and the sentencing court has the
    discretion to “ ‘consider the mitigating qualities of youth’ ” and to impose a lesser punishment without a
    29
    conclusion was a finding that even if the sentencing judge had been presented with additional
    mitigating facts, the totality of mitigating factors would not have outweighed the aggravating
    factors present in this case.
    ¶ 74    Despite the presentation of the defendant’s issues in the postconviction petition that did
    not include the “as-applied” language and mitigating background facts to the constitutional
    challenges, we find that the postconviction court provided the defendant with the review he
    sought in his pro se petition. As the defendant received an “as-applied” consideration in
    postconviction court, and because the sentencing court considered some of the Miller factors
    before sentencing the defendant to natural life, postconviction counsel’s framing of the issues did
    not affect the outcome of the case. Therefore, we find that the defendant was not prejudiced by
    counsel’s omissions. Landa, 
    2020 IL App (1st) 170851
    , ¶ 58.
    ¶ 75                  B. Lack of Citation to Case Law in Amended Petition
    ¶ 76    The defendant next contends that appointed counsel provided inadequate representation
    because no cases were cited in the amended petition. We disagree. Although case law is a
    standard basis of support of legal arguments, there is no mandate that appointed counsel cite and
    argue case law. Moreover, while appointed counsel did not cite case law in his amended petition
    and informed the trial judge that he was unaware of case law, the record establishes that he
    subsequently provided cases to the judge—People v. House and People v. Harris, the very cases
    requirement that the court engage in a formal fact finding. 
    Id.
     at ___, 141 S. Ct. at 1314-15 (quoting
    Miller, 
    567 U.S. at 476
    ). As stated by the Illinois Supreme Court in People v. Holman: “Under Miller and
    Montgomery, a juvenile defendant may be sentenced to life imprisonment without parole, but only if the
    trial court determines that the defendant’s conduct showed irretrievable depravity, permanent
    incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 
    2017 IL 120655
    , ¶ 46. Since the United States Supreme Court issued its opinion in Jones v. Mississippi, the
    Illinois Supreme Court has not held that sentencing courts no longer need to make a determination of
    permanent incorrigibility before sentencing a juvenile offender to a life sentence.
    30
    cited by the defendant on appeal. Thus, the trial court was presented with case law supporting the
    defendant’s arguments before the trial court ruled on his amended postconviction petition.
    ¶ 77    Furthermore, Illinois case law involving the constitutionality of young adult sentences
    was limited when the postconviction petition and amended postconviction petition were filed.
    The amended petition was filed on February 22, 2018. At that time, People v. Thompson had
    been decided, but as stated earlier in this order, Thompson did not stand for the proposition that
    constitutional sentencing arguments involving young adults must be composed as “as-applied”
    challenges. Thompson suggested that an “as-applied” challenge was possible but did not set forth
    the parameters of such a claim. See Ross, 
    2020 IL App (1st) 171202
    , ¶ 20. The First District of
    our Illinois Appellate Court had issued People v. House in 2015 and People v. Harris in 2016,
    both analyzing “as-applied” constitutional challenges. However, neither case stood for the
    proposition that the constitutional claims had to be framed as “as-applied” challenges.
    ¶ 78   Finally, the postconviction judge treated this case as if Miller and Holman were
    applicable, and therefore, appointed counsel’s decision to include no case law in the amended
    postconviction petition did not prevent the defendant from presenting his claim to the court. The
    postconviction court reviewed the sentencing hearing and concluded that the sentencing court
    considered some of the Miller factors—defendant’s young adult status and rehabilitative
    potential.
    ¶ 79                   C. Lack of Facts Included in Amended Petition
    ¶ 80    The defendant also argues that appointed counsel’s representation was inadequate
    because there were no facts about the defendant’s life included in the amended petition to
    support the claim that the evolving science on juvenile maturity and brain development applied
    to the defendant. As stated earlier in this order, the record contains no information about
    31
    appointed counsel’s rationale for omitting the mitigating facts when amending the petition.
    While the mitigating factors were critical to an “as-applied” consideration of his constitutional
    claims, we find that the absence of the mitigating facts did not prevent the court from
    considering the defendant’s claim as the facts were included in his original pro se petition that
    remained in the record. The postconviction judge concluded that the sentencing judge did
    consider Miller factors in determining the defendant’s sentence. Therefore, the defendant was not
    able to establish that appointed counsel’s omissions in representation prejudiced his case. Landa,
    
    2020 IL App (1st) 170851
    , ¶ 58.
    ¶ 81                   D. Failure to Review the Defendant’s PSI Report
    ¶ 82   Finally, the defendant argues that the record suggests that appointed counsel did not
    examine the defendant’s PSI report. He urges this court to find that appointed counsel was not in
    compliance with the mandate of Supreme Court Rule 651(c) that counsel “examined the record
    of proceedings at the trial.” Ill. S. Ct. R. 651(c). The defendant correctly states that appointed
    counsel is obligated to examine portions of the record “necessary to adequately present and
    support” the defendant’s claims. Davis, 
    156 Ill. 2d at 164-65
    . A criminal record is typically
    divided into three parts—the report of proceedings, the common law record, and exhibits. People
    v. Blanchard, 
    2015 IL App (1st) 132281
    , ¶¶ 18-19 (citing Ill. S. Ct. R. 324 (eff. Feb. 1, 1994)).
    ¶ 83   The defendant bases his argument—that appointed counsel did not review the exhibits,
    and thus, did not examine the defendant’s PSI report—on appointed counsel’s request to the
    clerk of the court asking for copies of the pleadings and transcripts, but not asking for copies of
    the exhibits. The defendant did not provide an affidavit either from appointed counsel or from
    the clerk of the court verifying that appointed counsel did not review the exhibits. However, we
    32
    note that a review of appointed counsel’s Rule 651(c) certificates specifically indicates that he
    reviewed “the entire trial record.”
    ¶ 84   Furthermore, the PSI report contained no mention of the defendant’s allegedly
    dysfunctional and harmful home environment, nor did it reference a history of past and/or
    current mental health issues. The officer who prepared the defendant’s PSI report asked the
    defendant if he or any member of his family had any mental health issues. The defendant
    negatively answered both questions. Thus, the defendant cannot show that the PSI report was a
    portion of the record “necessary to adequately present and support his claims.” Davis, 
    156 Ill. 2d at 164-65
    .
    ¶ 85   Overall, we find that whether appointed counsel reviewed the defendant’s PSI report has
    no bearing on the outcome of the defendant’s amended postconviction petition. On June 28,
    2018, the postconviction judge entered an order denying the defendant’s postconviction request
    for a new sentencing hearing after reviewing and considering the pleadings of the parties, the
    sentencing hearing transcript, this court’s order on the defendant’s direct appeal, and the
    arguments of counsel. The postconviction judge noted that while the sentencing judge did not
    expressly recite and address each factor set forth in Miller and Holman, the sentencing judge had
    sufficiently considered the factors and considered the defendant’s age and his status as a young
    adult, the gravity of the sentence, and the defendant’s potential for rehabilitation.
    ¶ 86                                    III. CONCLUSION
    ¶ 87   We find no basis to conclude that the trial court erred in denying the defendant’s request
    for a new sentencing hearing. We find that the postconviction court analyzed the defendant’s
    constitutional arguments following the “as-applied” framework. See Miller, 
    567 U.S. at 477-78
    ;
    Miller, 
    202 Ill. 2d at 338
    ; Landa, 
    2020 IL App (1st) 170851
    , ¶ 58. Further, after reviewing the
    33
    cold record in this case, we conclude that the sentencing court adequately considered the
    applicable Miller factors—the defendant’s youth and rehabilitative potential—and thus, as the
    supreme court found in Holman, the sentencing court’s determination was constitutionally
    appropriate given the facts of this case. We agree with the postconviction court’s assessment that
    the defendant failed to make a substantial showing of a constitutional violation. Edwards, 
    197 Ill. 2d at 246
    . For the reasons stated in this order, we affirm the June 28, 2018, judgment of the St.
    Clair County circuit court.
    ¶ 88   Affirmed.
    ¶ 89   JUSTICE CATES, specially concurring:
    ¶ 90   I agree with my colleagues’ determination that the defendant’s amended postconviction
    petition was properly dismissed, but I disagree with a portion of their reasoning. I find that
    postconviction counsel adequately framed the defendant’s “as-applied” constitutional challenges
    to his sentence, and that counsel’s decision to exclude the “supportive information” regarding
    defendant’s upbringing and mental health from the amended petition was appropriate where the
    “supportive information” was rebutted by the record. After reviewing the record, including the
    PSI, reports of proceedings, defendant’s pro se postconviction petition, the amended petition,
    and the content of postconviction counsel’s Rule 651(c) certificates, I find that postconviction
    counsel acted reasonably in amending the defendant’s pro se petition and that the postconviction
    court understood the issues presented.
    ¶ 91   On June 15, 2017, the defendant filed his multi-count pro se postconviction petition. The
    defendant first alleged that he was “facially challenging the constitutionality of his sentence” as a
    due process violation under the under the fourteenth amendment to the United States
    34
    Constitution (U.S. Const., amend. XIV). In support of his facial challenge to the constitutionality
    of his sentence, the defendant claimed that setting the age of 18 years old as the bright line
    between a juvenile and an adult was arbitrary. In this section of his petition, the defendant
    outlined the 118-year history regarding the creation of the Juvenile Court, but claimed that he
    “should never have been considered a [sic] adult based on a [sic] ‘arbitrary’ number that the
    judicial system established over 118 years ago.” The defendant went on to point out that several
    European countries treated persons between the ages of 18-25 as juveniles, not as adults.
    ¶ 92   The defendant next alleged that “his equal protection rights were violated under the equal
    protection clause of the 14th Amendment” in that he suffered “extreme prejudice” when he was
    sentenced to life in prison, and not given the same considerations as if he were a juvenile
    offender. The defendant claimed he should have been sentenced as a juvenile because scientific
    evidence in neuroscience proved that the brains of people ages 18-24 “are no more developed
    than a juvenile brain and that the distinctive attributes and characteristics that are in juveniles are
    also in young adults.”
    ¶ 93   The defendant further alleged that his sentence violated the prohibition against cruel and
    unusual punishment under the eighth amendment (U.S. Const., amend. VIII). Again, the
    defendant claimed he suffered “extreme prejudice” when he was sentenced as an adult instead of
    as a juvenile. The defendant also claimed there was scientific evidence that he “was not a [sic]
    adult at the time [he] was charged” with the crime. The defendant relied on Miller v. Alabama,
    
    567 U.S. 460
     (2012), in support of his argument that the eighth amendment required
    “proportionality of punishment.” Additionally, the defendant cited Roper v. Simmons, 
    543 U.S. 551
     (2005), for the proposition that the eighth amendment prohibited the death penalty for
    juvenile offenders. Finally, the defendant relied on Graham v. Florida, 
    560 U.S. 48
     (2010),
    35
    pointing out that juvenile offenders could not be sentenced to life without the possibility of
    parole. The defendant did not make a specific, “as-applied” challenge in this claim.
    ¶ 94   Next, the defendant alleged that his mandatory life sentence was unconstitutional “as
    applied to him” in that it violated the proportionate penalties clause of the Illinois Constitution
    (Ill. Const. 1970, art. I, § 11). Here, the defendant claimed he should have received Miller
    protections, “the same type of protection, treatment and conditions that juveniles receive when
    they are facing a mandatory life sentence.” The defendant reasoned that “newly discovered
    scientific evidence in neuroscience has proven that young adults age 18-24 are no more
    developed than a juvenile brain,” and that the same evidence “has proven that the petitioner
    suffers from the same immaturity and characteristics traits as a juvenile.” The defendant argued
    that his sentence should be vacated because “newly discovered scientific evidence in
    neuroscience proves that people ages 18-24 are not yet fully mature adults and that their brains
    are still developing.” The defendant noted that he included “supporting evidence and research
    articles” supporting his argument.
    ¶ 95   The defendant further argued that article I, section 11 of the Illinois Constitution (Ill.
    Const. 1970, art. I, § 11) included a “rehabilitation clause” which “focuses on the objective of
    rehabilitation.” Because he was a youthful offender, the defendant urged that his rights under this
    clause were violated as well.
    ¶ 96   As noted above, the defendant attached and referenced articles from scientific and
    criminal justice journals that explained the developing science on the maturity (or lack thereof)
    in the brains of juveniles and young adolescents. Those articles discussed issues surrounding the
    decision to draw 18 years of age as the arbitrary line for determining whether criminal acts
    should be deemed juvenile offenses or adult offenses. Relying on those articles, the defendant
    36
    claimed that he suffered from the same immaturity noted by researchers, and that he was entitled
    to the Miller protections. Additionally, the defendant recited his personal history, stating that his
    mother began taking him to a psychiatrist at age six. By age 10, the defendant claimed he was
    introduced to a street gang, the Gangster Disciples, through his mother’s ex-boyfriend.
    Subsequently, the defendant indicated that during his youth, he was held as a juvenile offender in
    a detention center, and then, as an adult, imprisoned in the Illinois Department of Corrections
    (IDOC). Although he had held a job when he was not incarcerated, the defendant claimed he was
    also told, early on, “to let go of the idea of working for a living.”
    ¶ 97   Subsequent to the filing of his pro se postconviction petition, postconviction counsel was
    appointed to represent the defendant. On February 22, 2018, postconviction counsel filed an
    “Amended Petition for Post-Conviction Relief.” The allegations in the amended petition
    mirrored the claims raised by the defendant in his pro se petition. Specifically, postconviction
    counsel alleged the following:
    “8.     In his conviction and sentence, Petitioner was denied due process and
    equal protection as provided by the United States Constitution and Illinois
    Constitution, was denied protection from cruel and unusual punishment as
    provided by the United States Constitution and Illinois Constitution, was
    denied the protection of the proportionate penalties clause of the Illinois
    Constitution, and was denied the protection of the Rehabilitation Clause of
    the Illinois Constitution [as] follows:
    a.      Petitioner’s sentence was unconstitutional. At the time of the
    sentencing, Petitioner was 20 years old, and was sentenced as an
    adult. Illinois’ determination that a defendant is an ‘adult’ at the
    age of eighteen (18) is arbitrary and is not supported by science.
    b.      New studies in neuroscience have determined that the brains of
    individuals aged 18-24 are no more developed than juvenile brains.
    Based on this scientific evidence, Petitioner was a juvenile at the
    time of his conviction and sentence, not an adult.
    c.      It was a gross miscarriage of justice to sentence Petitioner as an
    adult and subject him to a mandatory natural life sentence when we
    37
    now have scientific evidence that proves he was not an adult at the
    time he was charged and convicted. This very same scientific
    evidence in neuroscience can and will discredit the judicial system
    theory that a person is a legal adult at the age of 18.”
    ¶ 98   Postconviction counsel attached the same journal articles referenced and incorporated
    into the defendant’s pro se petition as exhibits in support of the amended postconviction petition.
    Postconviction counsel also attached a supporting affidavit from the defendant. In that affidavit,
    the defendant explained that, although he was 20 years old at the time he was convicted, he did
    not believe he should have been treated as an adult. Additionally, the defendant stated that he
    had attached scientific articles to his pro se petition that explained his arguments, and that these
    articles were not available at the time he was convicted.
    ¶ 99   On April 16, 2018, postconviction counsel filed his first certificate of compliance
    pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). In his verified certificate,
    postconviction counsel stated that he had “examined the entire record of the proceedings of
    trial,” and that he had “made any amendments to the Petition for Post-Conviction Relief, filed
    pro se, that were necessary for adequate presentation of Petitioner’s contentions.” Postconviction
    counsel further stated that he met with the defendant personally on December 4, 2017, “to
    ascertain his contentions of deprivation of constitutional rights.” Postconviction counsel also
    indicated that he corresponded with the defendant on October 17, 2017, December 6, 2017,
    December 21, 2017, and January 29, 2017, 3 all “to ascertain his contentions of deprivation of
    constitutional rights.” Moreover, counsel stated that he reviewed correspondence from the
    defendant dated December 18, 2017, and February 12, 2018. Counsel concluded by stating his
    “certificate is in compliance with Supreme Court Rule 651(c).”
    3
    Given the sequence of dates in this certificate, it appears that the January 29, 2017, was a
    typographical error, and that the correct date of that correspondence was January 29, 2018.
    38
    ¶ 100 On July 3, 2018, postconviction counsel filed a second certificate of compliance in
    accordance with Rule 651(c). Counsel again stated that he had made any amendments necessary
    for the “adequate presentation of Petitioner’s contentions” and had met with the defendant-
    petitioner a second time, on April 16, 2018, “to ascertain his contention of deprivation of
    constitutional rights.” Counsel also stated that he had corresponded with the defendant on April
    19, 2018, and May 18, 2018, in addition to the dates mentioned in his first certificate of
    compliance. Counsel indicated he had reviewed correspondence from the defendant dated
    November 2, 2017, December 18, 2017, February 12, 2018, March 13, 2018, and April 25, 2018,
    all “to ascertain his contentions of deprivation of constitutional rights.”
    ¶ 101 On October 29, 2018, postconviction counsel filed a third certificate of compliance. For
    the third time, counsel indicated that he had examined the entire record, met with the defendant,
    and made the necessary amendments to the pro se petition. All of counsel’s averments were
    made under oath and in compliance with Illinois Supreme Court Rule 651(c).
    ¶ 102 The State filed a motion to dismiss the defendant’s amended postconviction petition. The
    State argued, in part, that the defendant offered no evidence of a nexus between his own
    cognitive status and the research articles he referenced in his postconviction petition, and that the
    trial court had taken the defendant’s youth into account when sentencing the defendant.
    ¶ 103 On June 28, 2018, the circuit court made the following findings as to the defendant’s
    postconviction petition:
    “This court finds that while the trial court did not expressly recite and address each of the
    factors set out in Holman, Judge Cueto sufficiently considered the necessary factors when
    sentencing a defendant the age of Mr. White at the relevant times and the gravity of the
    sentence imposed. This court finds the sentence imposed by Judge Cueto and his
    39
    consideration of Mr. White’s young age and potential for rehabilitation met the standards
    set out in Miller and Holman.”
    In accordance with these findings, the circuit court denied the defendant’s postconviction request
    for a new sentencing hearing.
    ¶ 104 On appeal, the defendant asserts that postconviction counsel failed to provide a
    reasonable level of representation as required by Illinois Supreme Court Rule 651(c) (eff. July 1,
    2017), in that counsel failed to raise an “as-applied” constitutional challenge to his sentence of
    natural life based upon emerging science on brain development. The defendant also claims that
    his postconviction counsel failed to cite any case law and failed to provide the court with detail
    on the applicability of the evolving brain science to the defendant. Finally, the defendant claims
    that postconviction counsel did not read the presentence investigation report. The defendant asks
    this court to vacate the order dismissing his petition and to remand the cause for further second-
    stage proceedings with new counsel.
    ¶ 105 The Post-Conviction Hearing Act (Act) provides a means by which a person convicted of
    a criminal offense may assert that his conviction was a result of a substantial denial of a federal
    or state constitutional right. 725 ILCS 5/122-1(a)(1) (West 2018); People v. Coleman, 
    183 Ill. 2d 366
    , 379 (1998). A proceeding brought under the Act is not an appeal of a defendant’s
    underlying judgment, but rather, a collateral attack on that judgment. People v. Evans, 
    186 Ill. 2d 83
    , 89 (1999). The purpose of the proceeding is to permit inquiry into constitutional issues
    relating to the conviction or sentence that were not, and could not have been, determined on
    direct appeal. People v. Barrow, 
    195 Ill. 2d 506
    , 519 (2001). Thus, res judicata bars
    consideration of issues that were raised and decided on direct appeal, and issues that could have
    been presented on direct appeal, but were not, are considered forfeited. 
    Id.
    40
    ¶ 106 The Act provides a three-stage process for adjudicating postconviction petitions. 725
    ILCS 5/122-2.1(b) (West 2018); People v. Hodges, 
    234 Ill. 2d 1
    , 10 (2009). At the first stage, the
    defendant files a pro se petition, and the circuit court has 90 days to determine, without input
    from the State, whether it is frivolous and patently without merit. 725 ILCS 5/122-
    2.1(a)(2) (West 2018). If the court does not summarily dismiss the petition, the case moves to the
    second stage. 
    Id.
     § 122-2.1(b); Hodges, 
    234 Ill. 2d at 11
    . During the second stage of proceedings,
    counsel may be appointed for indigent defendants, and the State is permitted to file an answer or
    a motion to dismiss the petition. Hodges, 
    234 Ill. 2d at 10-11
    . When confronted with a motion to
    dismiss a postconviction petition, “the circuit court is concerned merely with determining
    whether the petition’s allegations sufficiently demonstrate a constitutional infirmity which would
    necessitate relief under the Act.” Coleman, 
    183 Ill. 2d at 380
    . At this stage, the circuit court is
    not to engage in any fact finding as all well-pleaded facts not rebutted by the record are taken as
    true. 
    Id. at 380-81
    . The dismissal of a postconviction petition is warranted at the second stage of
    the proceedings when the allegations in the petition, liberally construed, fail to make a
    substantial showing of a constitutional violation. 
    Id. at 382
    . If, however, the petitioner makes a
    substantial showing of a violation of constitutional rights, a third-stage hearing is required.
    
    Id. at 381
    . The dismissal of a postconviction petition is reviewed de novo. 
    Id. at 388-89
    .
    ¶ 107 The right to assistance of counsel during postconviction proceedings is not a matter of
    constitutional right, but rather a matter of “ ‘legislative grace.’ ” People v. Bell, 
    2014 IL App (3d) 120637
    , ¶ 10 (quoting People v. Pinkonsly, 
    207 Ill. 2d 555
    , 567 (2003)). Thus, a defendant
    in postconviction proceedings is “entitled to only a ‘reasonable’ level of assistance, which is less
    than that afforded by the federal or state constitutions.” People v. Pendleton, 
    223 Ill. 2d 458
    , 472
    (2006).
    41
    ¶ 108 To ensure that defendants are provided the reasonable assistance guaranteed by the Act,
    Supreme Court Rule 651(c) imposes three specific duties on postconviction counsel. Under Rule
    651(c), either the record or a certificate filed by postconviction counsel must show that counsel
    (1) consulted with the defendant by phone, mail, electronic means or in person to ascertain the
    defendant’s contentions of deprivation of constitutional right; (2) examined the record of the
    proceedings at the trial; and (3) made any amendments to the defendant’s pro se petition, if
    necessary, to ensure that defendant’s contentions are adequately presented. Ill. S. Ct. R.
    651(c) (eff. July 1, 2017). Strict compliance with Rule 651(c) is not required, rather substantial
    compliance is sufficient. People v. Richardson, 
    382 Ill. App. 3d 248
    , 257 (2008) (citing People v.
    Wright, 
    149 Ill. 2d 36
    , 63 (1992)).
    ¶ 109 Under Rule 651(c), postconviction counsel’s duty to amend the petition requires
    postconviction counsel to “shape[ ] the petitioner’s claims into proper legal form.” People v.
    Perkins, 
    229 Ill. 2d 34
    , 44 (2007). However, this does not mean that postconviction counsel must
    file an amended petition in every case. Rule 651(c) does not require counsel to amend the
    defendant’s petition to advance frivolous or nonmeritorious claims. People v. Greer, 
    212 Ill. 2d 192
    , 205 (2004). Rather, counsel must make only those amendments that are necessary to
    adequately present the defendant’s claims. People v. Turner, 
    187 Ill. 2d 406
    , 412 (1999). If
    amendments to a pro se postconviction petition would only advance wholly frivolous or spurious
    claims, the amendments are not “necessary,” and would appear to violate Illinois Supreme Court
    Rule 137 (eff. Jan. 1, 2018), or certain ethical obligations. See Greer, 
    212 Ill. 2d at 205-06
    .
    ¶ 110 Rule 651(c) also provides that the record shall contain a showing that postconviction
    counsel fulfilled these duties, which may be demonstrated by the filing of a certificate of
    compliance. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The filing of a Rule 651(c) certificate gives
    42
    rise to a rebuttable presumption that postconviction counsel provided reasonable assistance as
    required by the rule. People v. Rivera, 
    2016 IL App (1st) 132573
    , ¶ 36. A defendant has the
    burden to overcome the presumption by demonstrating that postconviction counsel failed to
    substantially comply with the duties set forth in Rule 651(c). 
    Id.
     Whether postconviction counsel
    substantially complied with Rule 651(c) is reviewed de novo. People v. Bass, 
    2018 IL App (1st) 152650
    , ¶ 13.
    ¶ 111 Here, postconviction counsel filed a Rule 651(c) certificate and two supplemental
    certificates. In all three certificates, postconviction counsel stated that he had examined the
    record of the proceedings of the trial; that he had consulted personally with the defendant on two
    occasions; that he had corresponded, in writing, on several other occasions; and, that he had
    made amendments to the defendant’s pro se petition that were necessary for the adequate
    presentation of the defendant’s claims. Thus, there was a rebuttable presumption that
    postconviction counsel provided reasonable assistance as required by the rule, and the defendant
    had the burden to overcome the presumption by demonstrating a failure to comply with the
    duties mandated under Rule 651(c). Rivera, 
    2016 IL App (1st) 132573
    , ¶ 36. In this case, the
    defendant’s primary claim of unreasonable assistance relates to postconviction counsel’s duty to
    make necessary amendments to the pro se petition in order to adequately present a defendant’s
    claims.
    ¶ 112 Here, the record demonstrates the amended petition for postconviction relief was filed on
    February 22, 2018, only after multiple meetings and extensive correspondence between
    postconviction counsel and the defendant. In the amended petition, postconviction counsel
    revised the allegations in the defendant’s pro se petition, which contained pages of sprawling
    allegations, with numerous citations to federal case authority, in order to crystallize the
    43
    defendant’s constitutional challenges to his sentence. I find that postconviction counsel did a
    notable job of synthesizing the defendant’s constitutional claims into concise claims, while
    preserving the substance of the allegations set forth in the defendant’s pro se petition. Although
    the specific phrase, “as applied,” did not appear in the amended petition, the allegations in
    subparagraphs 8(b) and 8(c) were essentially “as-applied” challenges to the defendant’s sentence
    under the proportionate penalties clause of the Illinois Constitution. These allegations concisely
    reflected, rather than omitted, those made in the defendant’s pro se petition. Postconviction
    counsel also attached the journal articles referenced in the defendant’s pro se petition, and
    included an affidavit from the defendant asserting that the evolving science on juvenile maturity
    and brain development applied in his circumstances. These allegations clearly referred to the
    defendant and could not have been construed as a facial challenge. 4
    ¶ 113 It is important to point out that when postconviction counsel was appointed in 2017, the
    law in Illinois regarding the applicability of the Miller considerations to “young adults” was just
    beginning to develop, and to date, it remains unsettled. Counsel’s decisions should not be judged
    in hindsight. Moreover, as demonstrated in the record, the defendant’s substantive claims
    regarding violations of his constitutional rights were not lost on the postconviction court. The
    postconviction court denied the defendant’s claim after reviewing the pleadings and arguments
    of the parties, the transcript of the sentencing hearing, and the decision of the appellate court, in
    light of the Miller and Holman decisions.
    ¶ 114 My colleagues have indicated that in amending the pro se petition, postconviction
    counsel omitted information that would have supported the defendant’s claim that his own
    4
    Postconviction counsel also included the defendant’s facial challenge to the arbitrary age
    selection of 18 as the dividing line between juveniles and adults by inserting language claiming that the
    selection of age 18 was “arbitrary” and “not supported by science.”
    44
    circumstances and mental health were so like those of a juvenile that the imposition of his
    sentence, absent the Miller considerations, violated the proportionate penalties clause. This
    position, however, assumes that the information was true and relevant to the sentencing
    proceedings. In this case, however, much of the “supportive” information alleged in the
    defendant’s pro se petition was either refuted by the record or known to the postconviction court.
    ¶ 115 For example, the majority has referenced the defendant’s claim that he had a history of
    psychiatric treatment since he was six years of age. This claim is rebutted by the defendant’s PSI.
    During his PSI interview, the defendant “denied receiving any treatment for any physical or
    mental illness, and stated to the best of his knowledge, no close family member has received
    treatment for a mental illness.” According to the PSI report, the defendant underwent a “45-day
    evaluation” by the Illinois Department of Corrections in 1991, but there is no mention of any
    mental health impairment that precluded the defendant from being placed on regular probation.
    During four encounters with the juvenile court, the defendant was continuously placed on
    probation, with no mention of a mental health impairment or any recommendation for
    counseling.
    ¶ 116 Moreover, the record shows that relevant factors regarding the defendant’s age and
    upbringing were known to the sentencing court, the appellate court on direct review, and the
    postconviction court. It is undisputed that at the time of the offense, the defendant was 20 years
    old, and thus, not a juvenile. The PSI, which was admittedly read by the postconviction court,
    revealed an absentee father. The defendant indicated he lived with his mother, thus suggesting a
    relationship with her. Although the specific facts of the defendant’s home life and his affiliation
    with a gang were not included in the PSI, it was clear that the defendant began his criminal
    endeavors at age 15, when he was first charged in a delinquency petition in the juvenile court.
    45
    Indeed, his juvenile history indicated a string of serious crimes and the use of a weapon on at
    least two occasions. The PSI also reported that the defendant had completed his general
    education diploma (G.E.D.) while incarcerated and that he had taken college courses for which
    he received credit. He had no record of drug abuse, although he had used marijuana in the past
    and occasionally drank alcohol. The PSI reported no difficulty in obtaining information from the
    defendant.
    ¶ 117 As an adult, the defendant was sentenced to the IDOC for armed robbery on August 24,
    1993. While incarcerated, the defendant indicated he participated in “group therapy
    intervention,” although he did not explain what that entailed. Then, only 49 days after his release
    from prison, the defendant obtained a gun and murdered Michael Hetlage. The defendant
    humiliated the victim by forcing him to remove his clothing, and when the victim pleaded for his
    life, the defendant responded by shooting him six times in the head. Based upon the evidence at
    trial, this murder required some aforethought, and was not a spontaneous reaction by an
    impetuous juvenile. Furthermore, the 20-year-old defendant was the sole actor, rather than a
    lookout or accomplice.
    ¶ 118 In addition, the evidence during trial clearly showed that the defendant knew his rights
    and gave a statement to the police. The trial court observed that the defendant was able to assist
    in his own defense at trial, and even testified in his own defense. And the trial court was able to
    observe the defendant speak in his allocution, wherein he claimed his innocence in the murder
    case, and also denied he was guilty of the armed robbery for which he had been convicted
    previously.
    ¶ 119 Simply put, the sentencing court and postconviction court had verifiable information
    regarding the defendant’s youth and attendant characteristics. It revealed a defendant who was
    46
    familiar with the criminal justice system, with no evidence that the defendant had been
    impetuous, immature, or easily led to commit these criminal acts. As acknowledged by the
    majority, the postconviction court ultimately considered the defendant’s constitutional challenges
    raised in the pro se postconviction petition and amended petition as “as-applied” challenges. The
    postconviction court reviewed the record, including the PSI, reports of proceedings, and the
    medical articles and determined that the sentencing court had, in fact, considered the defendant’s
    youth and attendant characteristics. The defendant’s contentions that postconviction counsel
    failed to provide reasonable assistance by omitting the defendant’s “as-applied” challenges and
    his supporting facts are not supported by the record. It bears repeating that the right to counsel in
    postconviction proceedings is wholly statutory, and that the Act provides for a reasonable level
    of assistance of postconviction counsel. Pendleton, 
    223 Ill. 2d at 472
    . After reviewing the record,
    I find that postconviction counsel provided a reasonable level of assistance to the defendant, and
    that the defendant has failed to rebut the presumption of reasonable assistance.
    ¶ 120 Finally, the majority spends a great deal of time referencing Miller and Holman. It is
    indisputable that the defendant was 20 years of age at the time this offense was committed.
    Because he was an adult, the Miller considerations do not apply directly to his circumstances.
    People v. Harris, 
    2018 IL 121932
    , ¶ 45. In the amended petition, the defendant asserted that the
    evolving science on juvenile maturity and brain development applied to his circumstances, but as
    noted above, the evidence in the record rebuts these allegations. The record demonstrates that the
    postconviction court reviewed all of the relevant information surrounding the defendant’s
    constitutional challenges. The postconviction court found that the sentencing court’s
    consideration of the defendant’s young age and his potential for rehabilitation met the standards
    set out in Miller and Holman. The postconviction court also found that the sentencing court
    47
    considered that the defendant had been convicted of a heinous crime and that the defendant’s
    actions indicated that he was likely to remain a danger to the public. Additionally, the
    postconviction court noted that the defendant’s claim that his sentence was excessive was raised
    and addressed in the defendant’s appeal from his conviction. Indeed, the PSI and report of
    proceedings from the sentencing court provided the postconviction court with all of the
    information required to consider the defendant’s “as-applied” challenges based upon Miller and
    Holman. Thus, the postconviction court properly dismissed the defendant’s petition.
    ¶ 121 For the reasons stated herein, I specially concur.
    48
    

Document Info

Docket Number: 5-18-0365

Citation Numbers: 2021 IL App (5th) 180365-U

Filed Date: 10/21/2021

Precedential Status: Non-Precedential

Modified Date: 7/30/2024