People v. Simpson , 2024 IL App (4th) 230888-U ( 2024 )

NOTICE 2024 IL App (4th) 230888-UThis Order was filed under
FILED
Supreme Court Rule 23 and is November 4, 2024
NO. 4-23-0888 Carla Bender
not precedent except in the
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McDonough County
JOSEPH K. SIMPSON, ) No. 20CF56
Defendant-Appellant. )
) Honorable
) Curtis S. Lane,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Justices Zenoff and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding defendant failed to rebut the presumption of
reasonable assistance established by postconviction counsel’s facially valid
Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) certificate.
¶2 Following a bench trial, defendant, Joseph K. Simpson, was found guilty of
unlawful restraint (720 ILCS 5/10-3 (West 2020)) and domestic battery (720 ILCS 5/12-3.2(a)(1)
(West 2020)). The trial court sentenced him to terms of four years and one year in prison,
respectively. Defendant’s convictions were affirmed on direct appeal. People v. Simpson, No. 4-
22-0251 (Nov. 14, 2022) (unpublished order under Illinois Supreme Court Rule 23(c)).
¶3 While his direct appeal was pending, defendant filed a pro se petition seeking
relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). The
trial court advanced defendant’s petition to the second stage of postconviction proceedings and
appointed counsel to represent him. The court subsequently granted the State’s motion to dismiss
the petition. Defendant appeals, arguing this matter must be remanded for further proceedings
because his appointed counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff.
July 1, 2017). For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 In August 2021, defendant was charged in an amended information with one
count of unlawful restraint (720 ILCS 5/10-3 (West 2020)) and one count of domestic battery
(720 ILCS 5/12-3.2(a)(1) (West 2020)).
¶6 At defendant’s bench trial, Rachele Simpson testified she and defendant were
married. On February 24, 2020, they began drinking “[p]robably as soon as [they] woke up” and,
when they got hungry, defendant drove them to a Hardee’s restaurant in Bushnell, Illinois. They
had been arguing on the way to the restaurant. After they purchased food and while they were
inside the car in the parking lot, defendant punched her in the face. When she tried to get out of
the car, defendant pulled her back inside by her shirt. She screamed for help, but defendant
continued hitting her as he drove out of the parking lot. Defendant stopped hitting her when she
took the keys from the ignition and threw them out of the car.
¶7 After the car stopped, Rachele got out and ran toward a house. She was not
wearing a shirt because defendant had pulled it off when she was exiting the car. She ran to a
nearby house where a woman answered the door, let her inside, gave her a sweatshirt, and called
the police. The police arrived and arrested defendant. Rachele testified she suffered a bruised
face and a “busted” mouth in the incident.
¶8 Kesia Lynch testified she was sitting at a drive-through window at a restaurant
across the street from Hardee’s when she heard a scream and observed two people fighting inside
a car. The passenger-side door of the car was open and a woman had partially exited before being
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pulled back inside by a man, who was driving. Lynch observed the occupants of the car hitting
each other as the car proceeded out of the parking lot and down the street with the passenger-side
door still open.
¶9 Joanne Dahmm testified she was on her porch when she saw a young woman
screaming for help inside a moving car with the front passenger-side door open. When the car
stopped, the woman got out, came toward her, and stated “he had hit her in the face.” The woman
was crying and the left side of her face was red. Dahmm took the woman into her house and gave
her a sweatshirt before the police arrived.
¶ 10 Bushnell police officer Justin Hood testified Rachele was very upset when he
arrived and spoke with her. Hood observed bruises on Rachele’s forehead and on one of her eyes
or her cheek. She also had a cut on the inside of her lip, but it had stopped bleeding. Hood
arrested defendant. He also took two photographs of Rachele’s face, which were admitted into
evidence without objection.
¶ 11 Defendant testified he and Rachele went to Bushnell to run errands. They only
began arguing when they arrived at Hardee’s and Rachele became angry because defendant said
they could not visit some people at their apartment. At that point, defendant drove away from
Hardee’s without getting food and Rachele attempted to jump out of the car. Defendant tried to
pull Rachele back into the car by her shirt. She then took her shirt off and threw it in the back
seat of the car. Eventually, she took the keys from the ignition. After the car stopped, Rachele got
out, walked up to a house, and spoke to a woman on the porch. Defendant denied drinking or
hitting Rachele.
¶ 12 Based on the evidence, the trial court found defendant guilty of both charges.
Defendant subsequently filed a pro se “Motion to Appeal,” alleging he received ineffective
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assistance of counsel at trial. At the pre-Krankel hearing (see People v. Krankel, 102 Ill. 2d 181,
464 N.E.2d 1045 (1984)), defendant asserted his trial counsel only received black and white
photographs of Rachele’s alleged injuries in discovery, and counsel failed to object when the
State sought to admit color photographs showing bruising on Rachele’s cheek at trial. The court
found defendant’s claim lacked merit, explaining the color photographs would have been
admitted into evidence even if counsel had objected. The court, therefore, declined to appoint
defendant a new attorney for a Krankel hearing. Following a sentencing hearing, the court
sentenced defendant to four years’ imprisonment for unlawful restraint and one year of
imprisonment for domestic battery.
¶ 13 On direct appeal, defendant contended (1) his trial counsel was ineffective for
failing to raise a hearsay objection when Dahmm testified Rachele stated defendant hit her in the
face and (2) the trial court failed to conduct an adequate preliminary Krankel inquiry. Simpson,
No. 4-22-0251 (Nov. 14, 2022) (unpublished order under Illinois Supreme Court Rule 23(c)).
This court rejected both of defendant’s claims and affirmed the trial court’s judgment.
¶ 14 While his direct appeal was pending, defendant filed the pro se postconviction
petition at issue in this case. In his petition, defendant alleged his trial counsel was ineffective for
(1) failing to ask for a continuance after discovering the State intended to introduce color
photographs at trial when only black and white photographs were tendered in discovery,
(2) failing to object when the color photographs were admitted into evidence, (3) failing to call
defendant’s father and brother to testify they did not observe any injuries to Rachele after the
incident and failing to obtain camera footage showing she had no facial injuries, and (4) failing
to bring Rachele’s relationships with the State and law enforcement to the trial court’s attention.
Defendant also alleged the State “knowingly withheld the truth to obtain an unfair advantage
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over [him] by altering the photographs to black-and-white” and introduced perjured testimony by
Rachele. Finally, defendant alleged a claim of actual innocence, claiming Rachele “caused the
scene at the Hardee’s parking lot to influence the arrival of police, and than [sic] applied make-
up to her face pretending to be injured.”
¶ 15 The trial court found the claims alleged in defendant’s petition presented an
arguable basis in law and fact. The court, therefore, advanced the petition to the second stage of
postconviction proceedings and appointed counsel to represent defendant.
¶ 16 On May 11, 2023, defendant’s appointed postconviction counsel filed a Rule
651(c) certificate, asserting she had (1) consulted with defendant by telephone and in person to
ascertain his contentions of deprivation of his constitutional rights, (2) examined the record of
proceedings, (3) reviewed the appellate court’s decision on direct appeal, and (4) concluded “no
amendments to [defendant’s] pro se post-conviction petition would result in a post-conviction
petition that would adequately assert a contention of deprivation of [defendant’s] constitutional
rights.”
¶ 17 Along with her Rule 651(c) certificate, counsel filed a motion to withdraw as
postconviction counsel. In her motion, counsel asserted she had determined defendant’s pro se
petition was without merit, she could not identify any nonfrivolous claims, and her ethical
obligations prohibited her from continuing her representation of defendant. Counsel also noted
her communication with defendant had broken down and defendant had “indicated to this Court
and to the Illinois Attorney Registration and Disciplinary Commission (ARDC) that [she] made
certain statements to him during [her] representation of him.”
¶ 18 At the hearing on counsel’s motion to withdraw, the trial court asked defendant
whether he had reported counsel to the ARDC, as alleged in the motion. After defendant
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acknowledged he had done so, the court allowed counsel’s motion to withdraw, stating,
“[C]learly, this would be a conflict.” The court appointed new counsel to represent defendant.
¶ 19 At a subsequent status hearing, defendant’s second appointed counsel stated he
had met with defendant and did not intend to file an amended petition. The State filed a motion
to dismiss the petition, asserting defendant’s allegations of ineffective assistance of counsel were
barred by res judicata because they were addressed on direct appeal and defendant failed to
present newly discovered evidence to support his claim of actual innocence.
¶ 20 On September 20, 2023, the trial court conducted a hearing on the State’s motion
to dismiss. Defendant’s new counsel provided argument on the claims raised in defendant’s
petition and concluded the petition presented valid claims not barred by res judicata.
¶ 21 In addressing the State’s motion to dismiss, the trial court found a majority of
defendant’s claims were barred by res judicata because they were considered on direct appeal.
The remaining claims in the petition lacked merit. Accordingly, the court granted the State’s
motion to dismiss the petition.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant argues this matter must be remanded for further proceedings
because his appointed postconviction attorneys failed to comply with Rule 651(c). According to
defendant, the presumption of reasonable assistance created by his first appointed counsel’s Rule
651(c) certificate was rebutted or nullified because she was working under a conflict of interest.
Defendant’s second appointed counsel failed to file a Rule 651(c) certificate, and the record does
not otherwise establish his compliance with the rule. Defendant, therefore, contends this case
must be remanded for compliance with Rule 651(c).
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¶ 25 Relying on People v. Smith, 2022 IL 126940, 210 N.E.3d 1240, the State responds
the Rule 651(c) certificate filed by defendant’s first appointed counsel established a presumption
of reasonable assistance, which carries over to any future appointed counsel. After defendant’s
first appointed counsel established presumptively reasonable assistance through compliance with
Rule 651(c), the only remaining requirement was orally arguing defendant’s claims at the hearing
on the State’s motion to dismiss. The State maintains any issue created by the conflict of interest
with defendant’s first appointed counsel was resolved by the appointment of new counsel. The
State argues this court should reject defendant’s argument the conflict of interest rebutted the
presumption of reasonable assistance created by counsel’s facially valid Rule 651(c) certificate.
¶ 26 Under the Act, a criminal defendant may claim, “in the proceedings which
resulted in his or her conviction[,] there was a substantial denial of his or her rights under the
Constitution of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1)
(West 2022). The Act provides a three-stage process for adjudicating postconviction petitions.
People v. Buffer, 2019 IL 122327, ¶ 45, 137 N.E.2d 763. At the first stage, the trial court reviews
the petition independently within 90 days of filing and may summarily dismiss the petition if it is
frivolous or patently without merit. People v. Pendleton, 223 Ill. 2d 458, 472, 861 N.E.2d 999,
1007 (2006). If the petition is not summarily dismissed as frivolous or patently without merit, it
must be docketed for further consideration at the second stage of the proceedings. Pendleton, 223
Ill. 2d at 472.
¶ 27 At the second stage of postconviction proceedings, the trial court may appoint
counsel to represent an indigent defendant, and the State may file responsive pleadings. People v.
House, 2021 IL 125124, ¶ 17, 185 N.E.3d 1234. The defendant’s petition will be dismissed if it
fails to make a substantial showing of a constitutional violation, but when such a showing is
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made, the petition is advanced to a third-stage evidentiary hearing. People v. Johnson, 2018 IL
122227, ¶ 15, 123 N.E.3d 1083.
¶ 28 In postconviction proceedings, criminal defendants do not have a constitutional
right to the assistance of counsel. People v. Custer, 2019 IL 123339, ¶ 30, 155 N.E.3d 374.
Rather, the right to counsel is provided solely by the Act as a matter of “legislative grace.”
People v. Porter, 122 Ill. 2d 64, 72, 521 N.E.2d 1158, 1161 (1988). Under the Act,
postconviction defendants are entitled to a reasonable level of assistance. Johnson, 2018 IL
122227, ¶ 16. To ensure postconviction defendants receive reasonable assistance, Rule 651(c)
provides:
“The record *** shall contain a showing, which may be made by the certificate of
petitioner’s attorney, that the attorney has consulted with petitioner by phone,
mail, electronic means or in person to ascertain his or her contentions of
deprivation of constitutional rights, has examined the record of the proceedings at
the trial, and has made any amendments 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).
¶ 29 Compliance with Rule 651(c) is mandatory, but postconviction counsel’s
certificate of compliance creates a rebuttable presumption of reasonable assistance. People v.
Addison, 2023 IL 127119, ¶ 21, 217 N.E.3d 1011. The defendant bears the burden of rebutting
the presumption of reasonable assistance by showing postconviction counsel did not
substantially comply with the requirements of the rule. Addison, 2023 IL 127119, ¶ 21. We
review de novo whether postconviction counsel complied with Rule 651(c). People v. Mason,
2016 IL App (4th) 140517, ¶ 19, 56 N.E.3d 1141.
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¶ 30 Citing Smith, the State contends the Rule 651(c) certificate filed by defendant’s
first appointed counsel established a presumption of reasonable assistance, and his second
appointed counsel was not also required to comply with the rule. In Smith, an assistant public
defender was appointed to represent the defendant after his pro se petition was advanced to the
second stage of postconviction proceedings. Smith, 2022 IL 126940, ¶ 6. Counsel filed a Rule
651(c) certificate asserting she had complied with the rule and a supplemental petition was not
necessary for presentation of the defendant’s claims. Smith, 2022 IL 126940, ¶ 6. The State filed
a motion to dismiss, and counsel filed a response to the motion. Smith, 2022 IL 126940, ¶¶ 7-8.
Before the hearing on the motion to dismiss, counsel left the public defender’s office, and
another assistant public defender was appointed to represent the defendant. Smith, 2022 IL
126940, ¶ 8. Following a hearing, the trial court granted the State’s motion to dismiss the
defendant’s petition. Smith, 2022 IL 126940, ¶ 8.
¶ 31 On appeal, the supreme court considered whether the defendant’s second
postconviction counsel was required to independently demonstrate compliance with Rule 651(c),
after the defendant’s first postconviction counsel had filed a valid Rule 651(c) certificate
establishing a presumption of compliance with the rule. Smith, 2022 IL 126940, ¶ 12. The court
held, because the defendant’s first appointed counsel had already met the requirements of Rule
651(c), the only task left for his second appointed counsel was to orally argue the defendant’s
position at the hearing on the State’s motion to dismiss. Smith, 2022 IL 126940, ¶ 30. The court,
therefore, rejected the defendant’s claim his second appointed counsel was also required to
independently demonstrate compliance with Rule 651(c). Smith, 2022 IL 126940, ¶ 38.
¶ 32 In accordance with Smith, although defendant’s second appointed counsel did not
independently demonstrate compliance with Rule 651(c) in this case, compliance may be
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established based on the Rule 651(c) certificate filed by defendant’s first appointed counsel. It is
well-established “ ‘[t]he filing of a facially valid Rule 651(c) certificate creates a rebuttable
presumption that counsel acted reasonably and complied with the rule.’ ” People v. Beasley, 2017
IL App (4th) 150291, ¶ 39, 85 N.E.3d 568 (quoting People v. Wallace, 2016 IL App (1st) 142758,
¶ 25, 67 N.E.3d 976). The Rule 651(c) certificate filed by defendant’s first appointed counsel
was facially valid and satisfied all the requirements of the rule.
¶ 33 Defendant acknowledges the Rule 651(c) certificate filed by his first appointed
counsel established a rebuttable presumption of reasonable assistance, but he argues the
presumption was nullified or rebutted because his complaint to the ARDC created a conflict of
interest with counsel. Defendant argues Smith is distinguishable because that case involved an
attorney withdrawing because she left the public defender’s office, not because of a conflict of
interest. Citing People v. Hardin, 217 Ill. 2d 289, 300, 840 N.E.2d 1205, 1212 (2005), defendant
notes, “The right to reasonable assistance of postconviction counsel includes the correlative right
to conflict-free representation.” Defendant insists his second appointed attorney was required to
independently demonstrate compliance with Rule 651(c) because his first appointed counsel was
acting under a conflict of interest.
¶ 34 Contrary to defendant’s argument, we do not believe any conflict of interest
created by defendant’s complaint to the ARDC rebuts the presumption of reasonable assistance
and compliance with Rule 651(c) in this case. A careful reading of counsel’s motion to withdraw
as postconviction counsel reveals it was not based on defendant’s report to the ARDC. In her
motion, counsel provided a thorough explanation of defendant’s claims, and she concluded the
claims were frivolous. It is only in a paragraph at the end of her motion, labeled
“Communication breakdown,” where counsel asserted defendant “indicated to [the trial court and
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the ARDC] that [she] made certain statements to him during [her] representation of him;
[defendant’s] claims about what [she] has said are inaccurate.” From this, counsel concluded she
“has been unable to effectively communicate to [defendant her] assessment of his case, despite
two lengthy attempts to do so.”
¶ 35 According to counsel’s motion, her primary reason for withdrawing was her
assessment defendant’s petition lacked any arguable merit and she was unable to communicate
with him, not any potential conflict of interest. Counsel noted defendant’s report to the ARDC to
emphasize the breakdown in communication between herself and defendant.
¶ 36 Importantly, counsel’s Rule 651(c) certificate satisfies all the requirements of the
rule. Counsel asserted she “consulted with [defendant] by telephone and in person for a total of
at least three hours to ascertain his contentions of deprivation of constitutional rights,” examined
the record of proceedings, and concluded no amendments would result in a meritorious
constitutional claim. Defendant does not claim the Rule 651(c) certificate was deficient in any
way. Defendant’s complaint to the ARDC, whenever it occurred, does not undermine counsel’s
certification that she completed the requirements of the rule.
¶ 37 Further, the record suggests defendant’s complaint to the ARDC may have been
calculated to obtain new counsel by creating a conflict of interest. The record shows, at the first
appearance after she was appointed, counsel informed the trial court she and defendant had a
“difference of opinion,” and he had asked her to withdraw. The court informed defendant it
would not appoint another attorney if counsel withdrew but, instead, defendant would have to
hire an attorney or represent himself. At some point following the first appearance, defendant
created the conflict by filing a complaint with the ARDC. After the conflict of interest was
discussed at the subsequent hearing where counsel sought to withdraw, the court elected to
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appoint another attorney for defendant. It is not unreasonable for us to conclude, given his
understanding a new attorney would not likely be appointed absent changed circumstances,
defendant may have filed the ARDC complaint in an attempt to replace an attorney who found
his claims to be baseless and was ethically bound to say so. In any event, based on the facts of
this case, we find any conflict of interest created solely by defendant’s actions did not rebut or
nullify the presumption of reasonable assistance established by his first appointed counsel’s
facially valid Rule 651(c) certificate.
¶ 38 Smith tells us, after a presumption of compliance has been established by
postconviction counsel’s valid Rule 651(c) certificate, subsequently appointed attorneys are not
required to repeat compliance with the rule. Smith, 2022 IL 126940, ¶¶ 30, 38. Here, we find a
facially valid Rule 651(c) certificate filed by his first appointed counsel satisfied the
requirements of the rule and established a presumption of reasonable assistance. As we noted
above, defendant does not point to any deficiency in the certificate, but simply contends a second
certificate was required. Based on this record, we find defendant has failed to rebut the
presumption created by the facially valid Rule 651(c) certificate filed by his first appointed
counsel.
¶ 39 Of course, defendant was still entitled to reasonable assistance after the trial court
appointed a replacement to represent him. See People v. Urzua, 2023 IL 127789, ¶ 57, 226
N.E.3d 1182 (“[A]t all stages of postconviction proceedings, defendants are entitled to a
reasonable level of attorney assistance.”). Defendant did not object when his second appointed
counsel expressed his intention to file no amendments to the petition but planned to respond to
the State’s motion to dismiss at the hearing. At the hearing, defendant’s counsel provided
substantial argument on defendant’s claims, including arguing they were not barred by
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res judicata. Defendant has expressed no dissatisfaction with the representation provided by his
second appointed counsel at the hearing on the State’s motion to dismiss or outlined any claims
or issues counsel should have better addressed. “Moreover, ‘[p]ost-conviction counsel is only
required to investigate and properly present the petitioner’s claims.’ ” (Emphasis in original.)
Smith, 2022 IL 126940, ¶ 29.
¶ 40 Under the Act, postconviction petitioners are only entitled to a reasonable level of
assistance, “a standard that is significantly lower than the one mandated at trial by our state and
federal constitutions.” Custer, 2019 IL 123339, ¶ 30. The totality of the circumstances may be
considered when evaluating the reasonableness of postconviction counsel’s representation.
People v. Turner, 187 Ill. 2d 406, 414, 719 N.E.2d 725, 730 (1999). In this case, the facially valid
Rule 651(c) certificate filed by defendant’s first appointed counsel established a rebuttable
presumption of reasonable assistance and compliance with the rule. Based on the totality of the
circumstances, we conclude defendant has failed to carry his burden of rebutting the
presumption.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment.
¶ 43 Affirmed.
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