People v. Coons , 2024 IL App (4th) 230552 ( 2024 )

2024 IL App (4th) 230552FILED
NO. 4-23-0552 July 30, 2024
Carla Bender
IN THE APPELLATE COURT 4 th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
JAMES E. COONS JR., ) No. 13CF19
Defendant-Appellant. )
) Honorable
) Scott Douglas Larson,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Steigmann and DeArmond concurred in the judgment and opinion.
OPINION
¶1 Defendant, James E. Coons Jr., appeals the Adams County circuit court’s denial
of his postconviction petition following a third-stage evidentiary hearing. Defendant argues that
he received an unreasonable level of assistance from his postconviction counsel due to counsel’s
failure to amend his pro se postconviction petition and to present evidence to support some of the
claims in the petition at the evidentiary hearing. We affirm.
¶2 I. BACKGROUND
¶3 In 2013, defendant was charged with predatory criminal sexual assault of a child
(720 ILCS 5/11-1.40(a)(1) (West 2012)), attempted predatory criminal sexual assault of a child
(id. §§ 8-4(a), 11-1.40(a)(1)), aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)), and
sexual exploitation of a child (id. § 11-9.1(a)(1)).
¶4 At a jury trial, the victim testified concerning numerous incidents during which
defendant sexually abused her when she was a child attending an in-home daycare run by
defendant and his wife. Her sister also testified concerning abuse she experienced at the daycare.
The victim testified on cross-examination that she did not like defendant and his wife very much,
she believed they did not properly supervise the children at times, and they did not feed them
appropriate meals. Both the victim and her sister testified that there was a mirror above
defendant’s bed. The victim’s sister testified defendant told her he had this mirror “so he could
watch when you’re having sex and stuff.” Several defense witnesses testified that they had been
in defendant’s bedroom and had never seen such a mirror.
¶5 The jury found defendant guilty of all four counts. The trial court sentenced
defendant to 12 years’ imprisonment for predatory criminal sexual assault of a child, 8 years’
imprisonment for attempted predatory criminal sexual assault of a child, 6 years’ imprisonment
for aggravated criminal sexual abuse, and 364 days in the county jail for sexual exploitation of a
child.
¶6 On direct appeal, we affirmed the judgment of the trial court but remanded the
matter for a preliminary Krankel inquiry (see People v. Krankel, 102 Ill. 2d 181 (1984)) into
posttrial claims of ineffective assistance of counsel raised by defendant. People v. Coons, 2015
IL App (4th) 130885-U, ¶ 40.
¶7 On remand, the trial court held a Krankel inquiry, during which defendant
extensively discussed several claims of ineffective assistance of trial counsel. During the inquiry,
Brett Jansen, defendant’s trial counsel, also discussed the claims. Defendant had discussed,
inter alia, a “police interrogation video” that showed that the victim and her sister “were after
money” and in a “vendetta” against him. Jansen stated he remembered one video of an interview
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with the victim but that he did not use the video at trial because the victim testified consistently
with the statements in the video. Following the Krankel inquiry, the court determined that further
posttrial proceedings were not warranted. Defendant appealed, but his appeal was subsequently
dismissed on his own motion.
¶8 On November 15, 2016, defendant, pro se, filed a postconviction petition, which
alleged several claims of ineffective assistance of trial counsel. First, the petition alleged Jansen
failed to consult with defendant and fully inform him regarding important issues and decisions.
Specifically, the petition alleged Jansen failed to spend “any time” with defendant discussing the
case. The petition also asserted that while Jansen was representing defendant, he interviewed for
and was offered a job in the state’s attorney’s office, which was a conflict of interest that he
failed to disclose.
¶9 Next, the petition alleged that Jansen failed to conduct an adequate pretrial
investigation. Specifically, the petition alleged that Jansen was ineffective for failing to call the
victim’s “step uncle,” Wayne Miller, as a witness to testify to the victim’s reputation for
untruthfulness. The petition stated that it did not include Miller’s affidavit because defendant had
been unable to locate him. The petition also alleged Jansen should have introduced Illinois
Department of Children and Family Services (DCFS) records from an unrelated matter in which
the victim falsely accused someone of physical abuse. The petition also stated that Jansen told
defendant that he had viewed the victim’s DCFS interview in the instant case and “you could tell
from watching the video the [victim] was lieing [sic] and trying to exstort [sic] money.”
¶ 10 The petition also alleged that Jansen “intentionally used trickery to cause
petitioner to forfeit his right to plea negotiations.” The petition stated that Jansen advised
defendant on the day of trial that he had turned down a plea bargain offer, “believing [defendant]
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was not going to plead guilty, and the fact he had the case beat.” The petition alleged Jansen
made no attempt to advise defendant of the plea offer before turning it down.
¶ 11 The petition also alleged Jansen failed to interview “crucial defense witnesses,”
who could have testified that “the kids were always fed, took places, and, that, there was no
ceiling mirror in [defendant’s] house.” These witnesses included Devon Wombles, Becky
Moffitt, Elizabeth Mahsman, and Miller. The petition alleged that Miller would have also
testified that he observed the victim and her sister engaged in a sexual act with their brother and
that the girls and their mother stated “a stepson” was involved instead to “keep [the girls’
brother] *** out of trouble.”
¶ 12 An affidavit from Moffitt was attached to the petition, in which Moffitt stated she
had observed the children at the daycare, including the victim, and they were always fed and well
cared for. She did not observe the children ever act scared or ill at ease. Moffitt also indicated
defendant never had a mirror on the ceiling of his bedroom. The petition indicated no affidavits
were attached from Miller, Mahsman, or Devon Wombles because defendant was unable to
locate them.
¶ 13 On January 17, 2017, defendant, pro se, filed an amended postconviction petition,
which added two issues related to fines and fees but otherwise incorporated by reference his
initial petition.
¶ 14 On April 12, 2017, the trial court entered an order appointing counsel to represent
defendant in the postconviction proceedings and docketing the petition for further consideration.
Postconviction counsel requested continuances over the next three years. He indicated at several
status hearings that he had been conferring with defendant, reading the record, and working on
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an amended petition. In December 2018, counsel indicated he was “ready to start making an
amended petition.”
¶ 15 On June 18, 2020, the State filed a motion to dismiss the claims in defendant’s
initial pro se postconviction petition and an answer to the fines and fees issues in the pro se
amended postconviction petition. On September 16, 2021, postconviction counsel filed a
certificate of compliance pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
Counsel subsequently indicated he would not be filing an amended petition. The trial court
denied the State’s motion to dismiss, and the State filed an answer to the petition. The parties
agreed to an order disposing of the fines and fees issues, and the court entered an order
advancing the remaining issues to a third-stage evidentiary hearing.
¶ 16 On May 27, 2022, the trial court held a third-stage evidentiary hearing. Defendant
testified that Jansen met with him three or four times before his jury trial and that none of these
meetings lasted longer than 10 minutes. Defendant stated Jansen never presented him with any
plea offers from the State. Defendant indicated that he would have considered a plea offer if one
had been presented to him. He stated he told Jansen he did not want to plead guilty, but he never
said he would not do it. Defendant stated there was a video showing “the children was just
mainly after [his] money” and Jansen told him he had nothing to worry about.
¶ 17 On cross-examination, the State asked defendant about the video he had
referenced. Defendant said he had viewed the video one time with Jansen, though he had not
seen “that much of the video to know that much about it.” Defendant stated that Jansen told him
there was nothing incriminating on the video and it appeared that “all they want is money.”
Defendant indicated he believed Jansen should have shown this video in court.
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¶ 18 On cross-examination, defendant also testified he believed Jansen had a conflict
of interest in representing him because he had agreed to accept a job at the state’s attorney’s
office, though he did not know if this occurred while Jansen was representing him. Defendant
stated he believed that Jansen conspired with the state’s attorney’s office because defendant told
Jansen that the events described by the victim could not have happened the way she initially
described, and the victim changed her story after that. Defendant believed Jansen told the State
about their private conversation, and this prompted the victim to change her story. Defendant
indicated he believed Jansen was actively trying to get a job with the state’s attorney’s office
while representing him.
¶ 19 The State called Jansen as a witness. Jansen testified that he was currently
working as an assistant state’s attorney, but he had been a public defender at the time he
represented defendant. Jansen indicated he started working for the state’s attorney’s office
approximately one year after his representation of defendant ended. He stated he was not in the
process of applying for a job there at the time he represented defendant, though working for the
state’s attorney’s office was a “long term goal” for him at the time. Jansen stated he had a couple
of meetings with defendant that each lasted longer than 30 minutes and he also had several
shorter meetings with defendant.
¶ 20 The State presented Jansen with a document it had marked as People’s exhibit 1.
Jansen indicated it was an offer letter from the state’s attorney’s office directed to him in regard
to defendant’s case. Jansen did not independently recall the specifics of the offer, but he testified
he remembered receiving a written offer and communicating the offer to defendant. Jansen stated
defendant told him he “would not plead guilty to any offense where he was going to say he did
do something to that girl.” People’s exhibit 1 was not admitted into evidence.
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¶ 21 The State asked Jansen if he knew what defendant was talking about with regard
to the video of the victim defendant claimed should have been presented at trial. Jansen stated he
did not remember such a video. Jansen stated he never shared confidential client communications
with the state’s attorney’s office while representing defendant.
¶ 22 During arguments, postconviction counsel stated: “Your Honor, while
[defendant’s] original petition included additional allegations, I believe there’s only a handful
that are really relevant here today.” Counsel stated the “primary issue” was whether a plea offer
from the State was ever communicated to defendant and argued defendant had consistently
denied ever having been informed of such an offer. Counsel noted defendant’s testimony that
Jansen had spent less than an hour meeting with him prior to trial. Counsel also stated that while
the dates of Jansen’s “actual employment with the State’s Attorney’s Office” did not “match up,”
he had testified that he was interested in working for the state’s attorney’s office the entire time
he was a public defender. Counsel argued that, if Jansen did not represent his clients to the fullest
of his ability due to this interest, it would be a conflict of interest.
¶ 23 The State argued that Jansen’s testimony showed he communicated the plea offer
to defendant and defendant was not interested in accepting it. The State also argued Jansen’s
long-term goal of working for the state’s attorney’s office did not create a conflict of interest.
The State then asserted that defendant had raised numerous issues in the postconviction petition
that were not addressed at the hearing, such as witnesses not being called to testify. The State
argued that those issues were addressed in the prior Krankel inquiry and the trial court had
previously found Jansen did not provide ineffective assistance.
¶ 24 The trial court took the matter under advisement and subsequently entered an
order denying the petition. This appeal followed.
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¶ 25 II. ANALYSIS
¶ 26 On appeal, defendant argues that his postconviction counsel provided an
unreasonable level of assistance because he failed to amend the pro se postconviction petition
“and/or present evidence to support the claims in the pro se postconviction petition at the
evidentiary hearing.” Defendant contends that his postconviction counsel offered evidence on
only one of his claims—that Jansen failed to present him with a plea offer. With regard to this
claim, defendant argues postconviction counsel acted unreasonably in failing to have People’s
exhibit 1, a plea offer letter to defendant, admitted for the purpose of showing it had never been
presented to defendant. Defendant also argues that his postconviction counsel acted unreasonably
by failing to present any evidence in support of his remaining claims. Defendant argues that,
because postconviction counsel did not withdraw any of his pro se claims at the second stage on
the basis that they lacked merit, counsel was required to provide evidentiary support for each of
the claims at the third-stage hearing. Defendant contends that counsel’s failure to present
sufficient evidence in support of his claims at the third-stage hearing demonstrates counsel failed
to substantially comply with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) and argues
the matter must be remanded for further postconviction proceedings regardless of the merit of his
underlying claims.
¶ 27 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))
provides a method by which imprisoned persons may claim that there was a substantial denial of
their constitutional rights in the proceedings which resulted in their convictions. People v.
Johnson, 2021 IL 125738, ¶ 22. Proceedings under the Act have three stages. Id. ¶ 24. At the
first stage, the trial court may summarily dismiss a postconviction petition that it determines to
be frivolous or patently without merit. Id. If the petition is not dismissed at the first stage, it
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advances to the second stage, where counsel may be appointed to assist an indigent defendant.
People v. Domagala, 2013 IL 113688, ¶ 33. At this stage, the State may file a motion to dismiss
or an answer to the petition. Id. The court must determine whether the allegations in the petition,
taken as true, and any accompanying documentation make a substantial showing of a
constitutional violation. Id. If the court determines at the second stage that the petitioner has
made the requisite substantial showing, the matter advances to a third-stage evidentiary hearing,
where the court determines, based on the evidence presented, whether the petitioner is in fact
entitled to relief. Id. ¶ 34.
¶ 28 There is no constitutional right to counsel during postconviction proceedings.
People v. Cotto, 2016 IL 119006, ¶ 29. Rather, “[t]he right to assistance of counsel in
postconviction proceedings is a matter of legislative grace, and a defendant is guaranteed only
the level of assistance provided by [the Act].” People v. Hardin, 217 Ill. 2d 289, 299 (2005). Our
supreme court has held that the Act affords postconviction petitioners the right to a reasonable
level of assistance of counsel, which is “less than that afforded by the federal or state
constitutions.” People v. Pendleton, 223 Ill. 2d 458, 472 (2006); see Cotto, 2016 IL 119006,
¶¶ 30, 45.
¶ 29 At the second stage of postconviction proceedings, postconviction counsel’s
duties are prescribed by Rule 651(c). People v. Addison, 2023 IL 127119, ¶ 37. Rule 651(c)
provides a “vehicle for ensuring a reasonable level of assistance.” (Internal quotation marks
omitted.) Cotto, 2016 IL 119006, ¶ 41. Rule 651(c) provides, in relevant part, that postconviction
counsel must certify that he or she (1) “has consulted with petitioner by phone, mail, electronic
means or in person to ascertain his or her contentions of deprivation of constitutional rights”;
(2) “has examined the record of the proceedings at the trial”; and (3) “has made any amendments
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to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s
contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
¶ 30 Counsel’s certification that he or she has complied with the duties set forth in
Rule 651(c) creates a rebuttable presumption that counsel provided the petitioner with a
reasonable level of assistance. People v. Urzua, 2023 IL 127789, ¶ 54. Counsel must comply
with Rule 651(c) regardless of whether the claims in the pro se petition are viable. Addison, 2023
IL 127119, ¶ 35. When compliance with Rule 651(c) is not shown at the second stage, harmless
error analysis is inapplicable. Id. Rather, a defendant is entitled to a remand for his attorney to
“comply with the limited duties required by Rule 651(c),” even if the claims raised in the petition
lack merit. Id. ¶ 37.
¶ 31 While postconviction counsel’s duties are prescribed by Rule 651(c) at the second
stage, our supreme court “has not prescribed by rule specific duties that counsel must perform at
the third stage.” Id. ¶ 38. Once a petition advances to a third-stage evidentiary hearing, Rule
651(c) no longer applies. People v. Pabello, 2019 IL App (2d) 170867, ¶ 28; see People v.
Marshall, 375 Ill. App. 3d 670, 683 (2007) (“Third-stage counsel does not, as Rule 651(c)
requires, examine the record or amend the petition further.”). Instead, courts have recognized
that the only standard for assessing postconviction counsel’s performance at a third-stage hearing
is that of “general reasonableness.” Pabello, 2019 IL App (2d) 170867, ¶ 29; see People v.
Beverly, 2022 IL App (4th) 210677-U, ¶¶ 69-70.
¶ 32 A. Standard of Review
¶ 33 Initially, the parties disagree as to the standard of review. Neither party cites
authority that is directly on point, and we are unable to find an opinion discussing the standard of
review to be applied under the circumstances presented in the instant case. Citing People v.
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Suarez, 224 Ill. 2d 37, 41-42 (2007), which involved a claim of unreasonable assistance of
postconviction counsel at the second stage, defendant argues that his claim of unreasonable
assistance of postconviction counsel is subject to de novo review. The State argues that, because
an evidentiary hearing was held where factfinding and credibility determinations were involved,
the manifest error standard applies. See People v. Ortiz, 235 Ill. 2d 319, 333 (2009); People v.
Coleman, 183 Ill. 2d 366, 384-85 (1998) (“The manifestly erroneous standard represents the
typical appellate standard of review for findings of fact made by a trial judge.”).
¶ 34 While the manifest error standard applies to the trial court’s decision to deny a
postconviction petition following an evidentiary hearing (see Ortiz, 235 Ill. 2d at 333), defendant
is not challenging the court’s evaluation of his postconviction claims or its assessment of the
third-stage evidence in this case. Rather, defendant argues the matter should be remanded
because he received an unreasonable level of assistance from postconviction counsel during
third-stage proceedings. This issue was not addressed below, and accordingly, there are no
factual findings or credibility determinations to which we may defer concerning postconviction
counsel’s performance. Accordingly, we find de novo review to be appropriate in this case. See
Coleman, 183 Ill. 2d at 384-85 (holding that the manifestly erroneous standard of review was not
appropriate at the second stage of postconviction proceedings because the trial court had made
no findings of fact or credibility determinations).
¶ 35 B. Applicability of Rule 651(c)
¶ 36 In the instant case, defendant argues throughout his brief that his postconviction
counsel failed to comply with Rule 651(c) by “failing to amend the pro se postconviction
petition and/or present evidence to support claims in the pro se postconviction petition at the
evidentiary hearing.” As we have discussed, Rule 651(c) prescribes the duties of postconviction
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counsel at the second stage of postconviction proceedings, not the third stage. See Addison, 2023
IL 127119, ¶¶ 37-38. Here, postconviction counsel filed a Rule 651(c) certificate during the
second stage of proceedings, creating a rebuttable presumption that he complied with the rule’s
requirements that he consult with defendant about his allegations he was deprived of his
constitutional rights, examine the trial record, and make any necessary amendments to the
petition to adequately present defendant’s claims. See Urzua, 2023 IL 127789, ¶ 54.
¶ 37 In his initial brief, defendant contends only that counsel should have attached
additional evidentiary support to the pro se postconviction petition at the second stage. He does
not otherwise identify any amendments he believes postconviction counsel should have made to
the allegations in the pro se petition. However, “[w]here a petition is not supported by affidavits
or other evidence, a court can ordinarily presume that postconviction counsel made a concerted
effort to obtain such things in support of the defendant’s claims but was unable to do so.” People
v. Turner, 2023 IL App (1st) 191503, ¶ 44; see People v. Johnson, 154 Ill. 2d 227, 241 (1993)
(“In the ordinary case, a trial court ruling upon a motion to dismiss a post-conviction petition
which is not supported by affidavits or other documents may reasonably presume that
post-conviction counsel made a concerted effort to obtain affidavits in support of the
post-conviction claims, but was unable to do so.”).
¶ 38 Here, there is nothing in the record rebutting the presumption that postconviction
counsel made an effort to obtain additional supporting evidence at the second stage but was
unable to do so. While counsel indicated at times that he would be preparing an amended
petition, the record does not establish that counsel was or could have been in possession of
additional supporting evidence that he failed to attach to the petition. The record is silent as to
counsel’s reasons for ultimately electing not to amend the petition, which may have been
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strategic. Accordingly, nothing in the record rebuts the presumption that counsel complied with
Rule 651(c) at the second stage.
¶ 39 Defendant cites People v. Thompson, 2016 IL App (3d) 150644, in support of the
proposition that postconviction counsel’s failure to attach evidentiary support to a petition can
rebut the presumption created by the filing of a Rule 651(c) certificate. However, we find
Thompson to be distinguishable. The Thompson court found that postconviction counsel’s failure
to obtain and review the defendant’s mental health records rebutted the presumption created by
counsel’s Rule 651(c) certificate that he took the steps necessary to adequately present the
defendant’s claim. Id. ¶ 23. However, in Thompson, the record established that the mental health
records existed but that postconviction counsel failed to attach them to the petition. Id. ¶¶ 8-9;
see Johnson, 154 Ill. 2d at 241 (holding the record rebutted the presumption that postconviction
counsel made an effort to obtain affidavits or other evidence where counsel submitted an
affidavit on appeal establishing that counsel made no efforts to investigate the claims raised in
the pro se petition or obtain affidavits). In the instant case, however, the record does not establish
that additional evidentiary support existed or that counsel failed to make a concerted effort to
obtain additional support.
¶ 40 C. Reasonableness of Postconviction Counsel at the Third Stage
¶ 41 Once defendant’s postconviction petition advanced to the third stage, “general
reasonableness” was the relevant standard for assessing postconviction counsel’s performance
rather than the duties required by Rule 651(c). See Pabello, 2019 IL App (2d) 170867, ¶ 29.
While the Act does not require that a postconviction petitioner receive the level of assistance
required by Strickland v. Washington, 466 U.S. 668 (1984), the Strickland test is an “essential
standard for comparison” when assessing general reasonableness at the third stage. (Internal
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quotation marks omitted.) Pabello, 2019 IL App (2d) 170867, ¶ 36. This is because, if counsel’s
performance is acceptable under the higher Strickland standard, it necessarily meets the lower
standard of reasonableness under the Act. Id. ¶¶ 36-37.
¶ 42 To prevail on a claim of ineffective assistance of counsel under Strickland, a
defendant must show that his counsel’s performance was deficient and that he was prejudiced by
the deficiency. Strickland, 466 U.S. at 687. To show prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “[A] defendant’s failure to satisfy either part
of the Strickland test will defeat a claim of ineffective assistance ***.” People v. Edwards, 195
Ill. 2d 142, 163 (2001).
¶ 43 We first address defendant’s argument that postconviction counsel acted
unreasonably by failing to present People’s exhibit 1—a plea offer letter the State presented to
Jansen at the evidentiary hearing—to establish defendant’s lack of knowledge of it and to have
the exhibit admitted. We find defendant was not prejudiced by counsel’s failure to have this
exhibit admitted into evidence. Defendant testified that his trial counsel never presented him with
any plea offers. However, Jansen testified that he did communicate a plea offer to defendant. The
trial court apparently found Jansen’s testimony on this point to be more credible than
defendant’s. A reasonable probability does not exist that the court’s credibility determination
would have been different if People’s exhibit 1 had been admitted and defendant had testified
that he had not seen the specific written plea offer set forth in People’s exhibit 1. Such evidence
would have been cumulative of defendant’s testimony that he was never presented with any plea
offer.
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¶ 44 Defendant also argues it was unreasonable for counsel to effectively abandon the
remaining claims in the petition at the third-stage hearing by failing to present evidence or
argument on them. Specifically, defendant argues that counsel should have presented Miller’s
testimony, evidence in addition to Moffitt’s affidavit showing that none of the children attending
the daycare were mistreated, “evidence from a DCFS investigation with the victim that showed
she lied” (though defendant asserts it is unclear from the allegations in the petition what matter
this investigation related to), and a video of an interview of the victim showing she was lying and
interested in money. Defendant argues that because counsel failed to withdraw any of the claims
asserted in the pro se petition at the second stage of proceedings, we may presume that he found
all the claims in the petition to be grounded in fact and warranted by the existing law. Defendant
contends counsel was “required to provide evidentiary support for each of what must have been
meritorious claims.”
¶ 45 We find defendant cannot establish that he was prejudiced by postconviction
counsel’s failure to present the evidence he contends should have been presented because the
record does not establish that such evidence existed or was available to postconviction counsel.
Counsel may have been unable to locate the witnesses, video, and other evidence alluded to in
the petition after conducting a reasonable investigation. It is also possible that postconviction
counsel spoke to witnesses identified by defendant and learned their testimony would not support
the allegations in the petition. Similarly, counsel may have obtained the video of the victim’s
interview and determined it did not support the allegations in the petition that it showed the
victim was only interested in money. Notably, Jansen indicated during the Krankel inquiry that
he only remembered viewing one video recording of the victim being interviewed and that her
statements in this video were largely consistent with her trial testimony.
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¶ 46 Even assuming that postconviction counsel could have located the witnesses
identified in the petition and that they would have testified consistently with the allegations in
the petition, it is not clear their testimony could have supported a viable claim of ineffective
assistance of trial counsel. Three of the witnesses identified by defendant—Devon Wombles,
Becky Moffitt, and Elizabeth Mahsman—would have testified that defendant did not have a
mirror on his bedroom ceiling and the children at the daycare were “never mistreated, always
fed, and took places.” At most, such testimony would have impeached the victim’s testimony on
relatively minor points concerning the existence of a ceiling mirror in defendant’s bedroom and
her belief that defendant and his wife did not serve the children appropriate meals or care for
them properly at times.
¶ 47 The petition also alleged Miller would testify that the victim was untruthful, he
observed her engaged in a sexual act with her brother, and she and her mother stated “a stepson”
was involved in the sexual act to keep her brother out of trouble. However, Miller’s alleged
observation of the victim engaged in a sexual act with her brother was not relevant to whether
defendant sexually assaulted the victim. Moreover, evidence of the victim’s prior sexual activity
was likely inadmissible at trial pursuant to section 115-7 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115-7 (West 2012)) unless defendant could somehow establish the admission
of such evidence was constitutionally required.
¶ 48 While defendant argues that postconviction counsel should have explained the
absence of the witness testimony, video of the victim’s interview, and other evidence at the
evidentiary hearing, he cites no authority for the proposition that counsel was required to do so.
The Act requires that a postconviction petition include attached affidavits or other evidence
supporting its allegations or explain why these items are not attached (see 725 ILCS 5/122-2
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(West 2016)), but it does not contain a similar requirement for evidence presented at a third-stage
evidentiary hearing (see id. § 122-6).
¶ 49 Notably, a third-stage postconviction proceeding differs substantially from
proceedings at the earlier stages. At the first and second stages, postconviction counsel need
merely make assertions of what evidence he will present in support of the postconviction claims
and attach to the petition affidavits or other supporting evidence. The third stage requires counsel
to actually present the supporting evidence in court, whether it be testimony from witnesses or
various exhibits. In preparing for a third-stage hearing, postconviction counsel must determine
whether he can actually secure the presence in court of witnesses whose affidavits he relied on at
the first and second stages and, if so, whether the witnesses’ testimony will be the same as that
contained in the affidavits they signed. If counsel determines he cannot secure the presence of
these witnesses or that their testimony will deviate substantially from their affidavits such that it
will no longer support the allegations in the postconviction petition, then counsel will not present
the testimony of such witnesses. If counsel fails to present the testimony of a witness for either of
these reasons, the law does not—and should not—require counsel at the third-stage proceeding
to explain the witness’s absence.
¶ 50 Defendant argues that if postconviction counsel found some of the claims in his
petition to be frivolous or unsupportable, he was required pursuant to Rule 651(c) to amend the
petition to eliminate such claims. Defendant contends that, if counsel found amendment to be
impossible, he was required to either withdraw pursuant to People v. Greer, 212 Ill. 2d 192, 211-
12 (2004), or stand on the pro se petition and explain why there were no amendments pursuant to
People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008). We find that Pace and Greer are
inapplicable, as both cases concern counsel’s duties when he or she determines there are no
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meritorious issues in a postconviction petition that may be raised. See Greer, 212 Ill. 2d at
211-12; Pace, 386 Ill. App. 3d at 1062; see also People v. Kuehner, 2015 IL 117695, ¶ 27. Here,
postconviction counsel clearly found at least some of the issues in the petition to be nonfrivolous,
as the record shows he presented evidence and argued in support of defendant’s claims that trial
counsel was ineffective for failing to adequately consult with defendant prior to trial and for
failing to adequately inform him regarding plea negotiations. Neither Greer nor Pace stands for
the proposition that postconviction counsel is required—either at the second stage or the third
stage—to provide the court with an explanation when he or she abandons some, but not all, of
the claims alleged in a pro se petition.
¶ 51 Here, the record does not indicate why counsel failed to present evidence in
support of some of the claims raised in the postconviction petition. If counsel had determined at
some point before the evidentiary hearing that he would not be able to provide evidentiary
support for the remaining claims in the petition or to argue them in good faith, he ideally would
have withdrawn the unsupportable claims. Pursuant to Illinois Supreme Court Rule 137 (eff. Jan.
1, 2018), “both the parties and the attorneys have an affirmative duty to conduct an inquiry of the
facts and the law before filing an action, pleading, or other paper and that the failure to make
such an inquiry could subject them to sanctions.” Rankin v. Heidlebaugh, 321 Ill. App. 3d 255,
259-60 (2001); see Greer, 212 Ill. 2d at 205 (applying Rule 137 to postconviction proceedings);
see also Ill. R. Prof’l Conduct (2010) R. 3.1 (eff. Jan. 1, 2010). This duty “continues after a suit
is filed, and an attorney is professionally obligated to dismiss a baseless suit, even over his or her
client’s objection, when the attorney learns the client no longer has grounds for a case.” Asher
Farm Ltd. Partnership v. Wolsfeld, 2022 IL App (2d) 220072, ¶ 54.
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¶ 52 However, postconviction counsel’s duty to withdraw baseless claims is an ethical
duty owed by counsel, as an officer of the court, to the court and public. See In re Custody of
Caruso, 185 Ill. App. 3d 739, 744-45 (1989); Rankin, 321 Ill. App. 3d at 260 (“The purpose of
Rule 137 is to prevent the abuse of the judicial process by penalizing those who bring vexatious
or harassing actions without sufficient foundation.”). It is not a duty postconviction counsel owes
to a defendant as part of the reasonable assistance required of counsel under the Act. Though
counsel’s practice in this case of effectively abandoning some of the postconviction claims at the
evidentiary hearing was not ideal, the record does not establish whether this was due to counsel’s
failure to investigate and present available evidence on these claims or his failure to formally
abandon unsupportable claims. If it was the latter, defendant was not prejudiced.
¶ 53 As the record does not show the additional evidence defendant claims should have
been presented at the evidentiary hearing existed or was available, defendant cannot show that
his postconviction counsel’s performance was ineffective under Strickland because he cannot
demonstrate prejudice. Accordingly, he also cannot show that counsel failed to meet the lower
standard of providing reasonable assistance under the Act. See Pabello, 2019 IL App (2d)
170867, ¶ 37 (“[W]e will measure counsel’s performance at the third-stage hearing to see if it
passes the higher Strickland standard. If it does, then it necessarily meets the lesser
reasonableness standard.”).
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the trial court’s judgment.
¶ 56 Affirmed.
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People v. Coons, 2024 IL App (4th) 230552Decision Under Review: Appeal from the Circuit Court of Adams County, No. 13-CF-19;
the Hon. Scott Douglas Larson, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Nancy L. Vincent, State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino,
for Edward Psenicka, and Richard S. London, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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