People v. Kaszuba , 2021 IL App (1st) 181341-U ( 2021 )

2021 IL App (1st) 181341-UNo. 1-18-1341
Order filed October 25, 2021
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 4770
)
JOSHUA KASZUBA, ) Honorable
) Kevin Michael Sheehan,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Pucinski and Coghlan concurred in the judgment.
ORDER
¶1 Held: Reverse and remand post-conviction counsel failed to comply with Illinois
Supreme Court Rule 651(c), where counsel did not examine the trial exhibit
underlying defendant’s claim.
¶2 Joshua Kaszuba appeals from the circuit court’s second-stage dismissal of his petition for
relief under the Post-Conviction Hearing Act. Kaszuba argues that post-conviction counsel did not
provide reasonable assistance where she failed to review a trial exhibit underlying one of his claims
and failed to amend his petition to present two other claims. We agree that post-conviction counsel
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provided unreasonable assistance by not examining the exhibit and, so, need not discuss Kaszuba’s
additional claims. Accordingly, we vacate and remand.
¶3 Background
¶4 A jury convicted Kaszuba of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) for
the shooting death of Eric Cocchia. The trial court imposed the minimum term of 20 years’
imprisonment, plus a mandatory 25-year enhancement for personally discharging a firearm which
proximately caused Cocchia’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004)). We recount the
facts to the extent necessary to resolve the issues in this appeal.
¶5 The State’s pretrial answer to discovery provided that any “lineup photographs” or
photographs “used in connection with any photographic identification” would be made available
to the defense for inspection.
¶6 Before trial, Kaszuba filed a motion to suppress his inculpatory statements to police as
involuntary because of his intoxication from cocaine. At the suppression hearing, Kaszuba testified
that he secreted cocaine and marijuana into the interrogation room. Officers caught him smoking
the marijuana but did not discover the cocaine he ingested on about 20 occasions in the
interrogation room and bathroom before giving inculpatory statements, including a videotaped
statement. The court denied the motion.
¶7 At trial, Kevin Jeffrey and Jose Rodriguez testified that on the evening of January 23, 2004,
they drove to a gas station with Cocchia in Cocchia’s car. There, Cocchia conversed with a man
wearing a white winter coat and blue jeans, whom Jeffrey identified in court as Kaszuba. Kaszuba
then entered a red Chevy Lumina driven by a dark-skinned man in a black coat.
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¶8 Jeffrey drove Jose and Cocchia to his apartment, about half a block from the gas station.
(Because Jose Rodriguez and another witness, Daniel Rodriguez, share a surname, we use their
first names.) Jose left in a friend’s car. Jeffrey saw the same red Lumina pass as he and Cocchia
walked to Jeffrey’s building. Cocchia used the restroom in Jeffrey’s second-story apartment and
left. A moment later, Jeffrey heard four or five gunshots and looked out a window toward a school
parking lot. Kaszuba, wearing the same coat, stood over a body and shot downwards. A dark-
skinned person wearing a dark coat with a hood and black hat was also there. Jeffrey ran outside
and saw Cocchia on the ground, covered in blood. Kaszuba and the other person were gone.
¶9 Around 3:30 a.m., Jeffrey identified Kaszuba to police in a photo array as the shooter and
the person he saw at the gas station. He later identified Kaszuba in a lineup as the shooter and
identified a photograph of the lineup at trial, which the trial court admitted into evidence.
¶ 10 Francisco Santiago testified that he and others were drinking in a car in a parking lot on
Noble around 11 p.m. that evening. A man walked behind Santiago’s car, and another man in a
white jacket, whom Santiago identified as Kaszuba, got out of a black Chevy Blazer and
approached the man. Kaszuba searched the man, drew a firearm, and threatened to kill him. The
man begged for his life, and Kaszuba shot him twice. Another person, in a black hoodie, got out
of the Blazer, told Kaszuba to shoot the person in the head to ensure he died, then took the firearm
and shot the person in the head multiple times. Kaszuba and the other shooter returned to the Blazer
and drove away. Santiago called the police and spoke to them when they arrived.
¶ 11 Santiago later identified Kaszuba to police in a lineup. The State introduced a photograph
of the lineup as People’s Exhibit No. 35, and Santiago initialed above the person he identified. The
photograph was admitted into evidence.
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¶ 12 On cross-examination, Santiago testified that he did not drink or smoke marijuana the night
of the shooting. Santiago initially denied telling the police that the men who wore ski masks and
the first person who got out of the Blazer wore a beige jacket, but later confirmed that he told the
police that the man wore a beige jacket. Kaszuba was the only person in the lineup with a shaved
head, blue jeans, or a white shirt. When asked if Kaszuba looked “fairly unique,” Santiago
responded, “It’s like he was there.” Santiago had not seen a photograph of Kaszuba before viewing
the lineup.
¶ 13 Daniel Rodriguez testified that he drank and smoked marijuana with Santiago and saw two
men get out of a black SUV. One wore a white jacket, and the other wore a black hoodie. They
approached another man and searched him. The man in the white jacket then shot four times.
Daniel ducked and heard two more shots. On cross-examination, Daniel testified that he told police
officers the shooter wore a light beige, white, or pearl-white jacket, and something covered his
face.
¶ 14 Theophil David Encalado, Kaszuba’s cousin, testified that the night of the shooting, he
picked up Kaszuba and Kaszuba’s friend, Mickey Pack, in his black Chevy Blazer and drove to a
parking lot near Noble. Kaszuba wore a white coat, and Pack wore a black coat. Kaszuba told him
that he saw a friend with whom he needed to talk and went over to speak with a man. Encalado
denied seeing Kaszuba with a weapon or searching the other person. Pack left the car, and Encalado
drove away. About two minutes later, Encalado heard gunshots and returned. Kaszuba and Pack
reentered the Blazer, and Encalado dropped them off at a house down the street.
¶ 15 The State impeached Encalado with his grand jury testimony. At that time, Encalado
testified that when Kaszuba got out of the Blazer to speak to his friend, he drew a weapon and
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searched the friend’s jacket, and when Kaszuba reentered, he held a bag of marijuana. Encalado
also gave the police a handwritten statement providing that he saw Kaszuba grab the person’s
jacket with one hand and point a firearm at him with the other hand. On cross-examination,
Encalado testified that he had never seen Kaszuba with a firearm.
¶ 16 Eric Arduini, Heidi Anderson, and Ben Vantil testified they lived in apartments near the
shooting, heard gunshots, and looked out their windows. Each saw two people wearing coats, one
light and one dark. Arduini testified the person in the lighter-colored coat held a firearm pointed
downward, and he heard more gunshots as he called the police. In addition, Anderson testified the
person in the darker-colored coat fired toward the ground, and Vantil could not say who had the
weapon. Arduini and Vantil testified that they could not see their faces.
¶ 17 Angeleta Crespo, the mother of Kaszuba’s child, testified that, after midnight on the night
of the shooting, Kaszuba showed her a bag of marijuana and said someone had been killed for it.
Police officers arrested Kaszuba at Crespo’s home around 2 p.m. the next day. On cross-
examination, Crespo testified that Kaszuba stated he was joking when he said someone had been
killed for the marijuana.
¶ 18 The autopsy showed that Cocchia died of homicide from five gunshot wounds to his head
and torso. The parties stipulated that four bullets were recovered from Cocchia’s body, and a
forensic firearms expert would testify the bullets were fired from the same firearm. The parties
further stipulated that officers recovered a white jacket and a bag of suspect cannabis from the
apartment where they arrested Kaszuba, and the bag’s contents were positive for cannabis. An
expert in trace evidence analysis and gunshot residue testing testified that he tested the jacket’s
sleeves and could not identify the three “unique” particles necessary for a positive gunshot residue
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test but identified particles “consistent” with gunshot residue. He further testified that it is possible
to discharge a firearm while wearing a jacket without the unique particles present on the jacket
when tested.
¶ 19 Detective Raymond Schalk testified that after Kaszuba’s arrest and transfer to the police
station, Schalk advised Kaszuba of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Kaszuba agreed to speak and denied involvement in Cocchia’s shooting.
¶ 20 Later that same day, Jeffrey identified Kaszuba in a lineup. Schalk re-Mirandized Kaszuba,
who again denied involvement.
¶ 21 The next day, Schalk again Mirandized Kaszuba and showed him signed statements
officers had obtained from Crespo and Encalado. Kaszuba explained he and Pack were in Pack’s
red Chevy Lumina the night of the shooting. At a gas station, Kaszuba saw Cocchia, whom
Kaszuba knew, and Kaszuba and Pack decided to rob him. They called Encalado, who picked up
Kaszuba and Pack in his black Chevy Blazer. They drove around until they saw Cocchia’s car. As
Cocchia walked toward it, Kaszuba and Pack got out of the Blazer, and Pack handed Kaszuba a
firearm. They approached Cocchia, and Kaszuba pointed the firearm at Cocchia and asked what
he had. Cocchia replied “some weed,” and Kaszuba handed the firearm to Pack, took a bag of
cannabis from Cocchia’s pocket, and walked away. Pack then shot Cocchia about five times, and
he and Kaszuba ran back to Encalado’s Blazer. Kaszuba acknowledged wearing the white jacket,
and the cannabis recovered was the same he took from Cocchia.
¶ 22 Santiago also identified Kaszuba as one of the shooters. Schalk then again met with
Kaszuba and an assistant state’s attorney. The ASA Mirandized Kaszuba, who repeated what he
told Schalk about the shooting and gave a videotaped statement.
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¶ 23 On cross-examination, Schalk testified that the original case report reflected that an officer
interviewed Santiago and another witness, who stated that one of the offenders wore a beige coat,
black hoodie, and ski mask and did not mention a white coat.
¶ 24 The ASA testified and identified Kaszuba’s videotaped statement, which was published
and admitted into evidence. The videotaped statement comports with Kaszuba’s statement to
Schalk. In the video, Kaszuba also corrects the ASA that Pack did not shoot Cocchia until Kaszuba
walked away, they did not plan to shoot Cocchia, and he did not want to come off as a “killer.”
When Pack shot Cocchia, Kaszuba asked Pack what he was doing and yelled at him to stop.
Kaszuba further noted that Pack bullied him when they were younger, and they used Encalado’s
car because Encalado was “legit,” with a license and insurance.
¶ 25 The jury found Kaszuba guilty of first degree murder, with additional findings that he
discharged a firearm proximately causing Cocchia’s death. After a hearing, the court imposed the
minimum 20 years’ imprisonment plus a mandatory 25-year firearm enhancement.
¶ 26 On direct appeal, Kaszuba argued that the State failed to prove beyond a reasonable doubt
that he discharged a firearm proximately causing Cocchia’s death, and therefore, the 25-year
sentencing enhancement was erroneously applied. We affirmed. People v. Kaszuba, 375 Ill. App.
3d 262 (2007).
¶ 27 On June 2, 2008, Kaszuba filed a pro se petition for relief. Kaszuba argued, in relevant
part, that trial counsel was ineffective for failing to obtain a toxicology report supporting
intoxication from cocaine at the time of his inculpatory statement. Kaszuba also argued that
appellate counsel should have raised trial counsel’s ineffectiveness for failing to challenge the out-
of-court identifications of Kaszuba as the shooter, as the lineups were impermissibly suggestive
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and led to the in-court identifications. Specifically, Kaszuba asserted that People’s Exhibit No. 35,
the photograph of the lineup Santiago viewed, showed he “stuck out in the lineup as the person the
police wanted picked out.” No one else had a shaved head, blue jeans, and white shirt, and Santiago
admitted that Kaszuba “stood out” in the lineup.
¶ 28 On July 11, 2008, the circuit court summarily dismissed Kaszuba’s petition. Kaszuba
appealed, arguing that his petition sufficiently alleged his trial counsel’s ineffectiveness for failing
to obtain the toxicology report and challenge the suggestiveness of the lineup identification. In a
March 9, 2010 order, this court held the petition sufficient enough to advance to second-stage
proceedings regarding the toxicology report. Without considering his remaining claims, we
reversed and remanded for second stage proceedings. People v. Kaszuba, No. 1-08-2260 (2010)
(unpublished order under Illinois Supreme Court Rule 23). The record includes an impound order
for the trial exhibits, reflecting that more than 75 photographs were to be impounded.
¶ 29 The case was docketed on remand on May 13, 2010. Multiple attorneys represented
Kaszuba and he briefly appeared pro se until Margaret Lundahl filed an appearance in March 2014.
On May 6, 2014, Lundahl noted that Kaszuba provided some materials but not the common law
record. The State suggested that she obtain the record from the clerk’s office, as “then she [would]
have everything related to it.”
¶ 30 On May 12, 2015, Lundahl explained that she had not yet prepared an amended petition
because she lacked Kaszuba’s original petition, the record from his appeal of the dismissal of his
petition, affidavits, and “exhibits.” On the next date, Lundahl stated that she had “the original
affidavit and things that I did not have three months ago.” The record includes another impound
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order for the trial exhibits. The order reflects that People’s Exhibits Nos. 23-95, all photographs,
were to be impounded.
¶ 31 On May 30, 2017, Lundahl filed an amended petition, and appended an affidavit averring
that the lineup photograph was “not in any of the items” in her possession. In court that day, the
State noted it would draft an order “for the clerk’s office to get the record,” and Lundahl stated, “I
did return it today.” On August 2, 2017, Lundahl filed a second amended petition.
¶ 32 Both amended petitions argued that appellate counsel was ineffective for failing to
challenge trial counsel’s effectiveness for not moving to suppress Santiago’s and Jeffrey’s out-of-
court identifications of Kaszuba as the shooter. The petitions repeated that Santiago admitted that
Kaszuba “stood out” in the lineup. The petitions further repeated that People’s Exhibit No. 35, the
photograph of the lineup Santiago viewed, “shows that the defendant stuck out in the lineup” and
was the only person of the five men depicted, with a shaved head, white shirt, and blue jeans.
Moreover, Daniel was in the same car as Santiago but could not see the shooter’s face, and Jeffrey
saw the shooting from his apartment, while other witnesses who viewed the shooting from similar
vantage points could not see the shooter’s face.
¶ 33 The second amended petition also asserted that (i) trial counsel was ineffective for failing
to seek a fitness hearing or investigate an insanity defense after being informed that Kaszuba was
prescribed psychotropic medication; (ii) trial counsel was ineffective for failing to corroborate
Kaszuba’s testimony that his statement was involuntary due to his intoxication with medical
records or the testimony of witnesses who contemporaneously observed him; (iii) Kaszuba
involuntarily and unknowingly agreed to the stipulations at trial; (iv) Kaszuba’s right to testify was
violated; (v) Santiago perjured himself at trial, and appellate counsel was ineffective for failing to
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raise the issue; and (vi) the 25-year firearm enhancement to Kaszuba’s sentence was an improper
double enhancement. Lundahl appended numerous documents to support the petition, including
Kaszuba’s affidavit averring that he demanded counsel during his interrogation.
¶ 34 Lundahl also submitted a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1,
2017). It said she consulted with Kaszuba by phone and mail to ascertain his claims, examined
“the court docket, the discovery and pleadings provided by the state and the report of the
proceedings for his trial and sentencing,” and provided the necessary claims and materials to
present Kaszuba’s contentions. In another affidavit, Lundahl said, “In putting together the final
petition I discovered that the lineup photo is not in any of the items I have in my possession.”
¶ 35 On January 16, 2018, the State filed a motion to dismiss, arguing that Kaszuba failed to
make a substantial showing of his claims. Lundahl filed a memorandum in opposition but withdrew
the sentencing claim.
¶ 36 On April 30, 2018, the court heard argument on the State’s motion to dismiss. The State
first argued that Kaszuba provided insufficient documentation that there was a bona fide doubt of
his fitness at the time of trial, then asserted that he did not establish his counsels were ineffective
regarding the lineup identifications. Lundahl responded to the State’s contentions, arguing that the
available materials showed a bona fide doubt of Kaszuba’s fitness, noting her difficulties obtaining
more medical records and then discussing the lineup identifications. Lundahl stated:
“And then so in terms of the time of the trial and what was available [regarding
Kaszuba’s fitness], I have tried to find evidence of that. I subpoenaed records, and I don’t
think I was looking in the right place because I can’t find anything that says that. So that’s
why it’s still not available since that. Then in terms of the motion to suppress identification,
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we did explain why the lineup was suggestive. He was the only person who was bald and
had—I do not have a copy of Exhibit 35 to give to you. I couldn’t find it.”
¶ 37 The court granted the State’s motion to dismiss, finding that Kaszuba failed to show that a
motion to suppress identification would have succeeded, and, thus, failed to show that trial and
appellate counsels were ineffective regarding trial counsel’s failure to file the motion.
¶ 38 Analysis
¶ 39 Kaszuba appeals, asserting first that Lundahl provided unreasonable assistance by failing
to review People’s Exhibit No. 35, the photograph of the lineup Santiago viewed. Kaszuba argues
(i) the photograph was relevant to the claim in his pro se petition, which Lundahl also asserted in
the amended petitions, and (ii) appellate counsel should have challenged trial counsel’s
effectiveness for not seeking to suppress the lineup identifications. Kaszuba notes that the
photograph was impounded with the other trial exhibits, all of which the circuit court clerk
transmitted to this court. The State contends that Lundahl presumptively and substantially
complied with the requirement of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) that she
review the record, where she submitted a certificate of compliance and explained that she could
not locate the photograph. The State further argues that the photograph would not have advanced
Kaszuba’s claim.
¶ 40 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) provides a
statutory remedy for criminal defendants who claim that they suffered substantial violations of
their constitutional rights at trial. People v. Edwards, 2012 IL 111711, ¶ 21. The Act provides for
three stages of review. People v. Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court
may summarily dismiss petitions which are frivolous or patently without merit. Id.; see also 725
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ILCS 5/122-2.1(a)(2) (West 2008). At the second stage, counsel may be appointed if the defendant
is indigent and may amend the petition, and the State may move to dismiss the petition. People v.
Cotto, 2016 IL 119006, ¶ 27 (citing 725 ILCS 5/122-4, 122-5 (West 2008)). The court then
determines whether the petition and accompanying documentation make a substantial showing of
a constitutional violation. Id. ¶ 28.
¶ 41 There is no constitutional right to the assistance of counsel during post-conviction
proceedings. People v. Custer, 2019 IL 123339, ¶ 30. As a matter of legislative grace, however,
the Act provides a right to a “reasonable level” of assistance. Id. A “reasonable level *** is
significantly lower than the one mandated at trial by our state and federal constitutions.” (Internal
quotation marks omitted.) Id.¶ 42 To guarantee a reasonable level of assistance, post-conviction counsel must (i) consult with
the defendant to ascertain his contentions; (ii) examine the record of the trial proceedings; and (iii)
make amendments to the pro se petition necessary for an adequate presentation of the defendant’s
contentions. Id.; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017). The “record of proceedings at
trial” comprises (i) the common law record, (ii) the report of proceedings, and (iii) the trial exhibits.
See People v. Blanchard, 2015 IL App (1st) 132281, ¶ 18; see also Ill. S. Ct. R. 324 (eff. July 1,
2017) (record on appeal shall be arranged as common law record, report of proceedings, and trial
exhibits); Ill. S. Ct. R. 612(b)(4) (eff. July 1, 2017) (making Rule 324 applicable to criminal
appeals). Rule 651(c) “requires post-conviction counsel to examine as much of the record as is
necessary to adequately present and support those constitutional claims raised by the petitioner.”
(Internal quotation marks omitted.) People v. Collins, 2021 IL App (1st) 170597, ¶ 34. Substantial
compliance with the rule is sufficient. Id. ¶ 30.
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¶ 43 When post-conviction counsel files a certificate attesting that they have performed the
duties required by Rule 651(c), the certificate creates a rebuttable presumption counsel provided
the reasonable level of assistance the Act guarantees. Id. ¶ 31. The defendant then bears the burden
of overcoming that presumption by demonstrating counsel failed to substantially comply with the
rule. Id. We review de novo whether counsel substantially complied with Rule 651(c). Id.
¶ 44 Here, Kaszuba argued in his pro se petition that appellate counsel was ineffective for not
arguing that trial counsel was ineffective for failing to file a motion to suppress the identifications
of him as Cocchia’s shooter. Kaszuba alleged that the lineup was highly suggestive and led to his
in-court identification, Santiago admitted that Kaszuba “stood out” in the lineup, People’s Exhibit
No. 35 “shows that [he] stuck out in the lineup as the person the police wanted picked out,” and
he was the only one with a shaved head, white shirt, and blue jeans. Lundahl repeated those
allegations in the amended petitions. The State does not dispute that the relevance of the exhibit to
Kaszuba’s claim. Indeed, Rule 651(c) mandated Lundahl examine, or attempt to examine, People’s
Exhibit No. 35. See id. ¶ 34 (post-conviction counsel must examine as much of record as necessary
to adequately present and support petitioner’s claims); see also People v. Johnson, 154 Ill. 2d 227,
245 (1993) (“At a minimum, counsel had an obligation to attempt to obtain evidentiary support for
claims raised in the post-conviction petition.”).
¶ 45 Lundahl’s certificate provided that she examined “the court docket, the discovery, and
pleadings provided by the state and the report of the proceedings for [Kaszuba’s] trial and
sentencing.” The certificate does not provide that Lundahl examined the trial exhibits. Instead,
Lundahl’s affidavit stated, “In putting together the final petition I discovered that the lineup photo
is not in any of the items I have in my possession.” Then, when arguing the State’s motion to
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dismiss, Lundahl admitted to the court that she did not possess a copy of the photograph because
she “couldn’t find it.” Notably, though, People’s Exhibit No. 35 is included with the remainder of
the trial exhibits transmitted to this court by the circuit court clerk.
¶ 46 We find Blanchard instructive. There, following an armed robbery conviction, the
defendant’s pro se post-conviction alleged, among other claims, that he was identified in a
suggestive lineup, and the State introduced false evidence regarding a credit card the defendant
allegedly took from the victim. Blanchard, 2015 IL App (1st) 132281, ¶ 7. The petition included
a photocopy of a lineup photograph. Id. Post-conviction counsel declined to amend the petition,
explained to the defendant that the credit card had been returned to the victim, and filed a Rule
651(c) certificate. Id. ¶ 8 According to the certificate, counsel had examined the transcripts,
common law record, appellate briefs, the order on direct appeal, and the defendant’s petition. Id.About one month later, counsel filed a supplemental post-conviction petition and another Rule
651(c) certificate, indicating counsel examined the transcripts, common law record, appellate
briefs, order from direct appeal, and defendant’s petition, and investigated his claims. Id. ¶ 9.
Defendant then filed a pro se motion for leave to amend his post-conviction petition, raising issues
with the chain of custody of the credit card, which defendant noted was submitted as an exhibit at
trial. Id. ¶ 10.
¶ 47 On appeal from the petition’s dismissal, we found that counsel’s Rule 651(c) certificates
did not reflect whether counsel examined the trial exhibits, which included the lineup photograph
and the credit card. Id. ¶ 18. We did not presume counsel failed to review or consider the exhibits
because she failed to mention them in her certificates. Id. Rather, we remanded for compliance
with Rule 651(c) and the subsequent reconsideration of the petition, explaining:
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“[W]e are unable to determine from counsel’s certificates if she examined Blanchard’s trial
exhibits. This is especially so because our de novo review shows that the lineup exhibit and
the victim’s credit card are in fact present in the record on appeal. Thus, while nothing in
Rule 651(c) suggests that the certificate is intended to be a comprehensive recounting of
all of an attorney’s post-conviction efforts [citation], where, as here, the post-conviction
petition identifies specific exhibits as a basis for the petition, good practice and
completeness calls for the Rule 651 (c) certification to address the exhibits in order for the
presumption of compliance to be invoked and for a proper review of defendant’s claims by
this court.” Id.
¶ 48 Similarly, in People v. Jackson, 2021 IL App (1st) 190263, the defendant’s pro se post-
conviction petition alleged that trial counsel was ineffective for failing to introduce the clothes he
wore on the night of his armed habitual criminal offense. He alleged his clothes were so baggy that
no one could have seen a firearm bulge in his pocket. Jackson, 2021 IL App (1st) 190263, ¶¶ 3-4,
21. Post-conviction counsel’s Rule 651(c) certificate indicated that counsel examined the common
law record, report of proceedings, exhibits, trial court file, and trial counsel’s file and spoken with
both trial attorneys. Id. ¶ 22. On appeal from second-stage dismissal, we found that the record did
not reflect what efforts, “one way or the other,” post-conviction counsel took to obtain evidence
of his clothing. Id. ¶ 44. Again, we could not find that counsel was unreasonable and remanded for
counsel to develop the record concerning compliance with Rule 651(c) regarding the evidence. Id.
¶ 46. We noted that remand was required regardless of whether the underlying claim had merit.
Id. ¶ 47.
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¶ 49 The record regarding whether Lundahl examined People’s Exhibit No. 35 goes further than
Jackson and Blanchard. Lundahl’s statements in her affidavits and court demonstrate she did not
possess and could not find the exhibit. Nonetheless, the State argues that Lundahl substantially
complied with Rule 651(c) by trying and failing to obtain the exhibit. Specifically, the State quotes
part of Lundahl’s argument to the trial court, where she explained that she “subpoenaed records”
but could not find People’s Exhibit No. 35. The record establishes that the portion of the quote in
which Lundahl discusses issuing a subpoena for records referred to her search for records
potentially showing trial counsel’s ineffectiveness for failing to seek a fitness hearing. She then
transitioned to discussing the lineup identification.
¶ 50 Moreover, the record reflects that Lundahl had access to the exhibit. The exhibits were
impounded in March 2010 following remand of Kaszuba’s petition. On May 6, 2014, the State
suggested that Lundahl obtain the record from the clerk’s office, as “then she [would] have
everything related to it.” On May 12, 2015, Lundahl explained that she did not have the exhibits,
but on August 18, 2015, she stated that she had obtained “things that I did not have three months
ago.”
¶ 51 Another impound order shows the circuit court clerk impounded the exhibits again in
January 2017. On May 30, 2017, when Lundahl filed the first amended petition, the State noted it
would draft an order for the clerk’s office to obtain the record. Lundahl stated, “I did return it
today.” Lundahl filed the second amended petition and her certificate of compliance in August
2017. As noted, the exhibit is included in the trial exhibits the circuit court clerk transmitted to this
court. Thus, the record demonstrates that Lundahl either possessed the exhibit and returned it to
the clerk’s office or could have obtained it from the clerk’s office, at least after January 2017, four
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months before she filed the first amended petition and seven months before she filed the second
amended petition and certificate of compliance.
¶ 52 Consequently, we decline to presume that Lundahl provided reasonable assistance based
on her certificate of compliance. See Blanchard, 2015 IL App (1st) 132291, ¶ 18 (“where, as here,
the post-conviction petition identifies specific exhibits as a basis for the petition, good practice and
completeness calls for the Rule 651 (c) certification to address the exhibits in order for the
presumption of compliance to be invoked”). Moreover, even if the certificate created a
presumption of reasonableness, Kaszuba had rebutted it with affirmative evidence, in the form of
Lundahl’s own statements, that she did not examine the exhibit, despite the record demonstrating
that it was available from the clerk’s office for four months before she filed the first amended
petition, and seven months before she filed the second amended petition and certificate of
compliance. Accordingly, we hold that Lundahl provided unreasonable assistance by not
examining the exhibit.
¶ 53 The State argues that the photograph would not advance Kaszuba’s claim and that Jeffrey
also identified Kaszuba in a lineup, a photograph of which was admitted into evidence but which
is not at issue in this appeal. Kaszuba responds that noncompliance with Rule 651(c) requires
remand without analyzing whether his claim has merit or whether the photograph would have
advanced it. See People v. Suarez, 224 Ill. 2d 37, 47, 52 (2007) (remand required by lack of
compliance with Rule 651(c), which is not subject to harmless-error analysis). In contrast, the State
relies on People v. Wallace, 2016 IL App (1st) 142758, where we held that “[w]ithout any
indication of whether [certain] documents would have actually benefitted defendant’s claim ***,
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No. 1-18-1341
we will not assume that counsel was unreasonable in not attaching them to his petition.” Wallace,
2016 IL App (1st) 142758, ¶ 27.
¶ 54 Wallace is distinguishable. There, the defendant’s pro se post-conviction petition alleged
that he was unfit to plead guilty, and his trial counsel was ineffective for failing to investigate his
mental health and drug abuse. Id. ¶ 4. Defendant attached affidavits from other people describing
his mental health history. Id. Post-conviction counsel filed a certificate asserting examination of
the report of proceedings and documents relevant to the plea and sentencing, defendant’s petition,
and attached documents. Id. ¶ 5. Counsel further stated that documents in defendant’s file had been
reviewed and attached those relevant to the certificate. Id. Among the documents were orders
directing the release of defendant’s medical records, subpoenas to the hospital and correctional
center, and a transcript reflecting that defendant missed a court date for hospitalization. Id. Counsel
did not amend the defendant’s petition, concluding it adequately presented his claims. Id. The
defendant then attempted to file a pro se amendment alleging trial counsel’s ineffectiveness for
failing to request a fitness hearing, and post-conviction counsel, though aware of the amendment,
having declined to adopt it. Id. ¶ 6. The court granted the State’s motion to dismiss the defendant’s
petition. Id. ¶¶ 7-8.
¶ 55 On appeal, the defendant argued that post-conviction counsel failed to provide reasonable
assistance by failing to examine or attach relevant mental health records to his petition. Id. ¶ 27.
But, we presumed that counsel acted reasonably where the certificate indicated that counsel
examined the record of the proceedings, defendant’s file, his petition, and its attached documents,
and concluded amendment was unnecessary. Id. ¶ 26. Moreover, the assertions were
uncontradicted by the record. Id. Further, defendant noted no evidence in the record that post-
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No. 1-18-1341
conviction counsel did not seek out and examine all available evidence, and we did not know the
substance of the records or whether they supported defendant’s claim that he was unfit to plead
guilty. Id. ¶ 27. We, therefore, declined to assume that counsel was unreasonable in not attaching
the records to the defendant’s petition. Id. We found that the defendant did not overcome the
presumption of reasonableness. Id. We further distinguished the case from People v. Waldrop, 353
Ill. App. 3d 244, 250 (2004), where the record contradicted the presumption that post-conviction
counsel acted reasonably by not seeking an affidavit from a witness identified in defendant’s pro se
petition. Wallace, 2016 IL App (1st) 142758, ¶ 29.
¶ 56 Unlike in Wallace, we cannot presume that Lundahl made a concerted effort to obtain the
exhibit when it was available from the clerk’s office while she prepared the amended petitions.
Instead, as in Waldrop, the record contradicts the presumption Lundahl acted reasonably by not
examining People’s Exhibit No. 35—which Kaszuba specifically identified in his pro se petition
as support for his claim, a contention repeated in the amended petitions—where the record
establishes that Lundahl could have examined the exhibit. Thus, Kaszuba has demonstrated that
Lundahl failed to substantially comply with Rule 651(c).
¶ 57 To resolve the appeal, we need not analyze whether People’s Exhibit No. 35 would help
advance Kaszuba’s claim. Suarez, 224 Ill. 2d at 47, 52 (lack of compliance with Rule 651(c) not
subject to harmless-error analysis); see also People v. Davis, 382 Ill. App. 3d 701, 713 (2008)
(“defendant need not demonstrate prejudice in order to succeed on a claim that post-conviction
counsel violated Rule 651(c)” (citing People v. Lander, 215 Ill. 2d 577, 585 (2005))).
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No. 1-18-1341
¶ 58 Accordingly, we vacate the judgment of the circuit court of Cook County dismissing
Kaszuba’s amended petition and remand for further post-conviction proceedings, where Kaszuba
is entitled to reasonable assistance of counsel. Suarez, 224 Ill. 2d at 47.
¶ 59 Given our conclusion that Lundahl failed to comply with Rule 651(c)’s requirement to
review the record adequately, we need not discuss Kaszuba’s additional claim that Lundahl failed
to comply with the rule’s requirements by not presenting a Miranda claim or proportionate
penalties claim in the second amended petition. See Lander, 215 Ill. 2d at 585 (where counsel
failed to comply with rule’s consultation requirement, reviewing court “need not discuss whether
counsel fulfilled the other duties under Rule 651(c)”); see also People v. Jones, 2016 IL App (3d)
140094, ¶ 34 (declining to reach alternative Rule 651(c) argument given finding that post-
conviction counsel failed to satisfy rule’s requirements in presenting one of defendant’s claims).
¶ 60 Vacated and remanded.
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