People v. Fathauer , 2019 IL App (4th) 180241 ( 2020 )

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Appellate Court Date: 2020.06.04
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People v. Fathauer, 2019 IL App (4th) 180241
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LYNN A. FATHAUER, Defendant-Appellant.
District & No. Fourth District
No. 4-18-0241
Filed November 15, 2019
Decision Under Appeal from the Circuit Court of Sangamon County, No. 10-CF-340;
Review the Hon. Rudolph M. Braud, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, John M. McCarthy, and Ryan R. Wilson, of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
John C. Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Thomas R. Dodegge, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Presiding Justice Holder White and Justice Knecht concurred in the
judgment and opinion.
OPINION
¶1 In January 2012, a jury convicted defendant, Lynn A. Fathauer, of participation in
methamphetamine manufacturing (720 ILCS 646/15(a)(2)(A) (West 2010)) and obstruction of
justice (720 ILCS 5/31-4(a) (West 2010)). The trial court sentenced defendant to 20 years in
prison for the methamphetamine offense and a concurrent term of 3 years in prison for
obstruction. On direct appeal, this court affirmed defendant’s conviction and sentence. People
v. Fathauer, 2013 IL App (4th) 120424-U, ¶ 2.
¶2 In February 2014, defendant pro se filed a petition for postconviction relief pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Defendant alleged
four grounds for relief, including ineffective assistance of trial counsel. In April 2014, the trial
court appointed counsel to represent defendant on his postconviction petition, and later that
month the State filed a motion to dismiss.
¶3 In August 2015, postconviction counsel filed a motion to withdraw. Citing People v.
Kuehner, 2015 IL 117695, 32 N.E.3d 655, postconviction counsel argued each of defendant’s
pro se claims was in fact frivolous or patently without merit. In May 2016, the trial court
granted counsel’s motion to withdraw over defendant’s objection but did not address the
State’s motion to dismiss.
¶4 Defendant appealed, and this court dismissed the appeal for want of a final order. People
v. Fathauer, 2017 IL App (4th) 160364-U, ¶ 2. On remand, the trial court granted the State’s
motion to dismiss defendant’s postconviction petition.
¶5 Defendant appeals, arguing the trial court erred by granting postconviction counsel’s
motion to withdraw because (1) defendant’s petition stated a claim for ineffective assistance
of counsel and (2) postconviction counsel rendered ineffective assistance by failing to amend
the pro se petition. We disagree and affirm.
¶6 I. BACKGROUND
¶7 A. Procedural History
¶8 In June 2010, the State charged defendant with participation in methamphetamine
manufacturing (720 ILCS 646/15(a)(2)(A) (West 2010)) and obstruction of justice (720 ILCS
5/31-4(a) (West 2010)). The State alleged defendant knowingly participated in the manufacture
of less than 15 grams of methamphetamine or a substance containing methamphetamine on
May 22, 2010. Regarding the obstruction charge, the State alleged defendant knowingly
concealed evidence by throwing a glass jar containing methamphetamine into a grassy area.
¶9 In January 2012, the case proceeded to a jury trial. We need not provide a detailed summary
of the testimony at trial. Such a summary may be found in the direct appeal of defendant’s
conviction. See Fathauer, 2013 IL App (4th) 120424-U. The resolution of defendant’s appeal
largely turns on the testimony of one witness, Daron Trudeau.
¶ 10 1. The Jury Trial
¶ 11 The State’s first witness was Jeffrey Leininger, a Springfield police officer. Leininger was
on duty around noon on May 22, 2010. Because a detective wanted to speak to Trudeau “with
reference to him parting out stolen parts on a stolen car,” Leininger drove to Maaco (an auto
collision repair shop) to search for Trudeau and a Chevy Blazer. When he saw the Blazer,
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Leininger pulled his squad car next to it and asked the driver if they could talk. The driver
responded, “Why?” and drove away. The driver continued even after Leininger exited his
squad car and told him to stop. Leininger followed the Blazer and initiated a traffic stop,
informing the driver, Trudeau, that he was under arrest “for basically obstruction, resisting, for
not listening to [his] commands, and driving away.” Defendant was in the passenger seat. At
some point Leininger observed white spots on defendant’s clothing. He asked Trudeau and
defendant if they had thrown anything from the window. Both denied having done so.
¶ 12 Trudeau testified he and defendant had known each other for five to seven years. On May
21, 2010, Trudeau took some methamphetamine he had cooked the day before to defendant’s
Decatur home. The methamphetamine needed further processing. To process the
methamphetamine, Trudeau used a “generator” (a glass jar with a hose connected to it) and
muriatic acid. Trudeau would mix aluminum with the muriatic acid to make smoke.
Methamphetamine would form at the bottom of the jar. At that point, the methamphetamine
would be wet. Trudeau would strain the product through coffee filters and let it dry. At
defendant’s house, Trudeau asked for filters and used them. Once he had the final product,
Trudeau waited for it to dry and then took it with him.
¶ 13 Trudeau testified he and defendant left defendant’s home in Trudeau’s Chevy Blazer.
While in the Blazer, Trudeau cooked more methamphetamine. Defendant assisted by acting as
a lookout and by steadying the generator. The two smoked some of the methamphetamine.
They also went to Trudeau’s sister’s house and then to Springfield. Defendant was with
Trudeau when Trudeau bought lighter fluid. Trudeau obtained the anhydrous ammonia earlier
by stealing it from tanks.
¶ 14 According to Trudeau, he drove to Maaco to pick up his last check from work. As he exited
the Maaco parking lot, a police officer told Trudeau he wanted to talk. Trudeau responded he
had nothing to say and drove away. Trudeau testified he did not stop because he had
methamphetamine in his car. Trudeau handed defendant a mason jar, which contained
methamphetamine, and told defendant to throw it out. Defendant threw the jar and its contents
out of the passenger window. Trudeau stated a bag containing methamphetamine and a pipe
were also thrown from the window. Trudeau believed he disposed of those items. Trudeau then
stopped for the police. An officer removed Trudeau from the Blazer and handcuffed him.
Trudeau was arrested on May 22, 2010, for unlawful participation in methamphetamine
manufacturing.
¶ 15 Trudeau further testified he was interviewed by the police and the state’s attorney’s office.
He testified he was not promised anything for his testimony and that he was facing the same
charges as defendant.
¶ 16 On cross-examination, Trudeau testified his trial for methamphetamine manufacturing was
approaching. Trudeau believed he would get probation for that offense because he had not been
in trouble before. Trudeau agreed he had not been caught stealing anhydrous ammonia. He
denied stealing anything else, including car parts. Trudeau testified he did not know he was
purchasing stolen parts. He bought them because they fit his vehicle. Trudeau was not arrested
for possessing stolen car parts.
¶ 17 Trudeau acknowledged giving three interviews with police and the state’s attorney’s office.
Trudeau did not think he had told police in his first interview that he knew the parts recovered
were stolen. Trudeau admitted he used half a gram to a gram of methamphetamine per day and
denied telling the police officers he used two to three grams per day. Trudeau stated he had
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been making methamphetamine for four to five months and admitted he sold
methamphetamine when he wanted money. All of the items in the truck were thrown out of
the passenger side window. He admitted that each time he manufactured methamphetamine he
had to steal anhydrous ammonia. Trudeau also recruited people to purchase pseudoephedrine
pills.
¶ 18 The jury found defendant guilty of both charged offenses. The trial court sentenced
defendant to concurrent prison terms of 20 years for methamphetamine manufacturing and 3
years for obstruction.
¶ 19 2. The Direct Appeal
¶ 20 On direct appeal, this court summarized defendant’s arguments as follows:
“Defendant argues the State failed to prove him guilty of both offenses beyond a
reasonable doubt. Defendant contends only one witness testified defendant participated
in methamphetamine production and threw the jar from the Blazer. That witness,
Trudeau, was ‘an admitted liar, methamphetamine addict, and drug dealer,’ who had a
motive to testify falsely. Defendant maintains, because of this, Trudeau’s testimony
was unbelievable and his convictions should be overturned.” Fathauer, 2013 IL App
(4th) 120424-U, ¶ 32.
¶ 21 This court affirmed the conviction and sentence. Id. ¶ 2. In doing so, we noted as follows:
“The jury was informed of Trudeau’s conduct and pending methamphetamine-related
charges, as well as Trudeau’s alleged purchase of stolen auto parts. Defense counsel
cross-examined Trudeau regarding his motive to lie and of his anticipation of receiving
probation for the offense. The jury, who heard Trudeau and the other witnesses testify,
apparently believed Trudeau, in spite of his alleged motive to lie and his
methamphetamine addiction. This determination lies within the role of the jury.
[Citation.] The record does not establish this decision was unreasonable or unreliable.”
Id. ¶ 38.
¶ 22 B. The Postconviction Petition
¶ 23 At some point following defendant’s conviction and sentence, the judge assigned to
defendant’s case retired, and a new judge was assigned for all further proceedings.
¶ 24 In February 2014, defendant pro se filed a postconviction petition in which he alleged he
was denied (1) a fair trial, (2) due process, (3) effective assistance of trial counsel, and
(4) effective assistance of appellate counsel. In his first claim, defendant argued he was
convicted by Trudeau’s allegedly false testimony. Defendant cited inconsistencies between the
statements Trudeau made while talking to the police and his testimony at trial.
¶ 25 Defendant attached to his petition selected transcripts of Trudeau’s trial testimony and
transcripts from the May 22, 2010, interviews by Shane Overby, a detective with the
Springfield Police Department. During his first interview, Trudeau told Overby he left items
at Maaco when he was fired. These items included parts taken from a Chevy S10. Trudeau
stated he saw the parts and purchased them because he could get rid of them or “use them on
some other things.” When asked why he would risk purchasing stolen property, Trudeau
responded he “didn’t think it that big a deal.” When Overby asked if any parts were purchased
and put on his car or truck, Trudeau said no. Trudeau stated he did not manufacture
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methamphetamine for sale, only for his own use. The following questioning occurred regarding
the amount consumed around the time of the arrest:
“[Detective Overby (DO)]: *** When’s the last time you cooked I should say that?
Cause you smoked this morning so—
[Daron Trudeau (DT)]: Probably 150 pills I think.
DO: Okay[,] and about how much is that?
DT: Probably[—]three grams probably.
DO: Okay, alright, anybody else doing it with you?
DT: Nope[,] just myself.
DO: Okay—Nick [(defendant)] obviously[.]
DT: Nick[,] yea[h].”
¶ 26 Trudeau told Overby he had been cooking methamphetamine for “[m]aybe a month or
two.” Trudeau reported defendant threw the “pipe and bag” from the Blazer. Trudeau did not
know a jar had been thrown out. Trudeau denied throwing anything from the vehicle but then
stated he threw out a pipe. Defendant also attached specific pages of Trudeau’s trial testimony.
¶ 27 Regarding ineffective assistance of trial counsel, defendant argued that counsel failed to
scientifically test spots on his clothing. (At trial, the State presented evidence that defendant
had spots on his shirt and pants and the spot on the pants tested positive for methamphetamine.)
Defendant further asserted that “[t]rial counsel’s lack of pretrial investigation deprived [him]
of a potential defense. [Citation.] In the case at bar, had trial counsel properly prepared for trial
by investigating [Trudeau’s] initial interview given [on] May 22, 2010, and had the interview
been presented at trial, [defendant] would not have been convicted through false testimony by
the State.”
¶ 28 Defendant’s other claims are not at issue in this appeal.
¶ 29 In April 2014, the trial court advanced defendant’s petition to the second stage of
postconviction proceedings by appointing counsel to represent defendant. Later that month,
the State filed a motion to dismiss, arguing that defendant’s claims were (1) barred by
res judicata, (2) insufficiently pleaded, and (3) unsupported by the record.
¶ 30 C. The Motion to Withdraw
¶ 31 In August 2015, defendant’s appointed counsel filed a motion to withdraw as counsel. In
his motion, counsel cited Kuehner, 2015 IL 117695, ¶ 21, and explained that counsel appointed
at the second stage of postconviction proceedings must “set forth some explanation as to why
the petition is in fact without merit” and must do so for each of defendant’s pro se claims
before a trial court can permit counsel to withdraw.
¶ 32 In his motion, postconviction counsel listed each of defendant’s claims and explained why
they were in fact meritless. Postconviction counsel further addressed defendant’s assertion that
he was denied the effective assistance of trial counsel when trial counsel failed to conduct a
pretrial investigation of Trudeau’s interview, as follows:
“Petitioner also asserts that trial counsel’s lack of pretrial investigation deprived
him of a potential defense. Specifically, Petitioner argues that if trial counsel had
investigated the initial interview Trudeau gave on May 22, 2010, and presented this
interview at trial, then Petitioner would not have been convicted by false testimony.
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There is no evidence that appears from the record to support the conclusion that
Trudeau gave false testimony at trial. Trial counsel had the opportunity to
cross[-]examine Trudeau about the interviews he gave and the veracity of the
statements he made to the police during his interviews on May 22, 2010. In fact, trial
counsel did cross[-]examine Trudeau on these matters. [Record citation.] Therefore,
Petitioner has not demonstrated a deficient performance by trial counsel that caused
him prejudice.”
Postconviction counsel also noted that “[t]rial counsel effectively cross[-]examined five of the
State’s nine witnesses.” Regarding defendant’s claim that he was convicted by false testimony,
postconviction counsel explained that the issue was argued and rejected on direct appeal and
was therefore barred by res judicata. Counsel attached an affidavit averring he complied with
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
¶ 33 D. The Trial Court’s Rulings
¶ 34 In May 2016, the trial court conducted a hearing on postconviction counsel’s motion to
withdraw. Counsel noted that he had met with defendant and explained to defendant why
counsel believed the claims were meritless. Defendant objected to counsel’s motion to
withdraw. The trial court granted postconviction counsel’s motion but did not rule on the
State’s motion to dismiss. The circuit clerk filed a notice of appeal on defendant’s behalf. This
court concluded the motion to withdraw was not a final order from which defendant could
appeal; accordingly, we lacked jurisdiction to review defendant’s claim. Fathauer, 2017 IL
App (4th) 160364-U, ¶ 18. We remanded the case for further proceedings. Id. ¶ 20.
¶ 35 In March 2018, the trial court granted the State’s motion to dismiss.
¶ 36 This appeal followed.
¶ 37 II. ANALYSIS
¶ 38 Defendant appeals, arguing the trial court erred by granting postconviction counsel’s
motion to withdraw because (1) defendant’s petition stated a claim for ineffective assistance
of counsel and (2) postconviction counsel rendered ineffective assistance by failing to amend
the pro se petition. We disagree and affirm.
¶ 39 A. The Applicable Law
¶ 40 The Act provides a criminal defendant the means to redress substantial violations of his
constitutional rights that occurred in his original trial or sentencing. People v. Crenshaw, 2015
IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS 5/122-1 (West 2014). The Act contains
a three-stage procedure for relief. People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615; 725
ILCS 5/122-2.1 (West 2014). Within the first 90 days after the petition is filed and docketed,
the trial court shall dismiss a petition summarily if the court determines it is “frivolous or is
patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). A petition may be dismissed
as frivolous or patently without merit only if the petition has no arguable basis either in law or
in fact. Allen, 2015 IL 113135, ¶ 25. “A petition which lacks an arguable basis either in law or
in fact is one which is based on an indisputably meritless legal theory or a fanciful factual
allegation. An example of an indisputably meritless legal theory is one which is completely
contradicted by the record.” People v. Hodges, 234 Ill. 2d 1, 16, 912 N.E.2d 1204, 1212 (2009).
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Because most postconviction petitions are drafted by pro se defendants, “the threshold for a
petition to survive the first stage of review is low.” Allen, 2015 IL 113135, ¶ 24. If a petition
alleges sufficient facts to state the gist of a constitutional claim, first-stage dismissal is
inappropriate. Id. If the petition is not dismissed as being frivolous or patently without merit,
then the trial court orders the petition to be docketed for further consideration. 725 ILCS 5/122-
2.1(b) (West 2014).
¶ 41 At the second stage, the trial court appoints counsel, who must then investigate defendant’s
claims and make any amendments necessary for an adequate presentation of defendant’s
contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). The State may file a motion to dismiss the
petition, and the petition advances to a third-stage evidentiary hearing only if defendant makes
a “substantial showing of a constitutional violation.” (Internal quotation marks omitted.)
People v. Johnson, 2018 IL App (5th) 140486, ¶ 22, 99 N.E.3d 1.
¶ 42 The right to counsel in postconviction proceedings is statutory rather than constitutional,
and therefore a defendant is entitled only to the level of assistance guaranteed by the Act.
People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511, 518-19 (2004). The Illinois Supreme
Court has determined that the Act and Rule 651 require appointed counsel to provide only
reasonable assistance, a lower standard than that which the constitution requires at trial.
Kuehner, 2015 IL 117695, ¶ 15. Rule 651(c) outlines certain duties that postconviction counsel
must perform in order to provide reasonable assistance. Id. Counsel must (1) consult with the
defendant to determine the issues defendant wants to raise, (2) examine the record of the
proceedings in the trial court, and (3) make any amendment to the petition necessary to
adequately preserve defendant’s contentions. Id. However, postconviction counsel is not
required to present frivolous or meritless claims and must withdraw if counsel cannot advance
any arguably meritorious claims. Id.
¶ 43 The requirements postconviction counsel must meet to withdraw vary depending on how
the petition advanced to the second stage. See id. ¶ 19. If the petition advanced by default—
that is, the trial court did not take any action on the petition within 90 days of filing—counsel
“should make some effort to explain why defendant’s claims are frivolous or patently without
merit.” (Emphasis omitted.) Greer, 212 Ill. 2d at 212. However, a trial court may grant a motion
to withdraw in such a case when the record has demonstrated “in fact” that defendant’s claims
are patently without merit and counsel has complied with Rule 651(c). Kuehner, 2015 IL
117695, ¶ 16.
¶ 44 When a trial court advances a petition to the second stage within 90 days, it is presumed
that the court has made a finding that the petition was not frivolous or patently without merit
on its face. Johnson, 2018 IL App (5th) 140486, ¶ 42; Kuehner, 2015 IL 117695, ¶ 20. In this
instance, when postconviction counsel determines a motion to withdraw is necessary, counsel
is essentially filing a motion to reconsider the trial court’s initial ruling. Kuehner, 2015 IL
117695, ¶ 21. As a result, “appointed counsel owes the trial court at least some explanation as
to why, despite its superficial virtue, the pro se petition is in fact frivolous or patently without
merit, and counsel owes this explanation with respect to each of the defendant’s pro se claims.”
(Emphasis in original.) Id. Similar to a motion to reconsider, a motion to withdraw “does not
ask the trial court to conduct its first-stage assessment a second time but rather seeks to bring
to the trial court’s attention information that was not apparent on the face of the pro se petition
at the time such assessment was made.” Id.
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¶ 45 B. The Kuehner Analysis in This Case
¶ 46 Defendant first argues postconviction counsel should not have been permitted to withdraw
because his petition stated the gist of a constitutional claim of ineffective assistance of trial
counsel. Specifically, defendant asserts the petition alleges trial counsel (1) failed to
investigate police interviews of Trudeau and (2) “fail[ed] to effectively cross-examine Trudeau
with his prior inconsistent statements and counsel’s failure to challenge Trudeau’s credibility.”
¶ 47 Kuehner requires a two-step analysis. First, we determine whether the trial court advanced
the petition to the second stage on the merits based upon its conclusion that the petition stated
the gist of a constitutional claim. See id. ¶¶ 18-20. Second, we evaluate whether postconviction
counsel provided “at least some explanation as to why, despite its superficial virtue, the pro se
petition [was] in fact frivolous or patently without merit *** with respect to each of the
defendant’s pro se claims.” (Emphasis in original.) Id. ¶ 21.
¶ 48 Here, the State does not argue that the petition was not advanced to the second stage on the
merits, and the record demonstrates that the trial court appointed counsel well within the 90-
day time limit. Because the court advanced the petition to the second stage, we presume that
the trial court made an initial determination that defendant’s petition stated the gist of a
constitutional claim. Appointing counsel is all that the Act requires to advance a petition to the
second stage, and the trial court need not comment on the potential merit of a defendant’s
pro se claims.
¶ 49 Regarding the second step, defendant raised four issues in his petition, and postconviction
counsel addressed each of those four issues in his motion to withdraw. Before this court,
defendant does not argue that postconviction counsel failed to procedurally comply with
Kuehner. Instead, defendant argues the trial court’s decision to allow postconviction counsel
to withdraw was incorrect on the merits because his petition stated the gist of a constitutional
claim of ineffectiveness of trial counsel.
¶ 50 Nevertheless, before reaching the merits, we need to address postconviction counsel’s
compliance with Kuehner. The Illinois Supreme Court clearly stated in Kuehner that, “if we
were willing to say in Greer that a motion to withdraw should include such explanations when
the petition advances to stage two by default, we are now prepared to say that such a motion
must include such explanations when the petition advances to the second stage by affirmative
judicial action.” (Emphases in original.) Id. “[T]he burden for establishing that [the petition’s
claims in fact lack merit] rests squarely on appointed counsel,” and counsel must “make that
case with respect to each and every pro se claim asserted.” Id. ¶ 22. Counsel is required to
“reduce his or her findings to writing and to include them in the motion to withdraw so that
both the trial court and the reviewing courts have a basis for evaluating counsel’s conclusion.”
Id. The court “h[e]ld that, where appointed counsel is either unable or unwilling to make that
case with respect to each of the pro se claims contained in the petition, appointed counsel’s
motion to withdraw must be denied.” (Emphasis added.) Id. Accordingly, we must address
whether postconviction counsel (1) provided some information that was not apparent on the
face of the petition that (2) demonstrated each of defendant’s pro se claims was in fact
frivolous and patently without merit.
¶ 51 1. Information Not on the Face of the Petition
¶ 52 In Kuehner, the supreme court explained that postconviction counsel’s responsibility was
not to “evaluat[e] the facial sufficiency of defendant’s pro se petition” because the trial court
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had already made the determination that the petition “on its face *** was neither frivolous nor
patently without merit.” Id. ¶ 20. Thus, the court concluded that a motion to withdraw, similar
to a motion to reconsider, “does not ask the trial court to conduct its first-stage assessment a
second time but rather seeks to bring to the trial court’s attention information that was not
apparent on the face of the pro se petition at the time such assessment was made.” Id. ¶ 21.
¶ 53 The information that was not apparent on the face of defendant’s pro se petition included
(1) the full trial transcript of Trudeau’s testimony and (2) this court’s decision on direct appeal.
We conclude that these types of information are consistent with what the supreme court had in
mind when it referenced “information that was not apparent on the face of the pro se petition.”
Id.
¶ 54 Defendant’s pro se petition made four different claims of a constitutional deprivation. In
support of those claims, he attached transcripts of Trudeau’s interviews and select portions of
Trudeau’s testimony at trial. Given that the trial court had nothing else to consider when it
evaluated defendant’s pro se petition at the first stage, the court concluded that defendant’s
pro se petition met the low threshold of stating the gist of a constitutional claim. However,
when postconviction counsel provided the trial court with the full transcript of Trudeau’s
testimony and this court’s decision on direct appeal, counsel was calling the court’s attention
to information that was not apparent at the time the court assessed the facial validity of
defendant’s pro se petition as contemplated by Kuehner. Counsel’s doing so met Kuehner’s
requirement that, in support of counsel’s motion to withdraw, counsel must provide “at least
some explanation as to why *** the pro se petition is in fact frivolous or patently without
merit.” (Emphasis in original.) Id.
¶ 55 In this case, the judge that had presided over defendant’s trial retired before defendant filed
his postconviction petition. Because the judge who reviewed the postconviction petition was
different from the judge who conducted the trial, it is likely that the judge only reviewed the
facial validity of the petition and did not comb through the record. However, even a judge that
conducted a defendant’s trial would not be expected to remember the prior proceedings without
assistance.
¶ 56 The Illinois Supreme Court has stated that, when reviewing a pro se postconviction petition
at the first stage, “[t]he court is further foreclosed from engaging in any fact-finding or any
review of matters beyond the allegations of the petition.” People v. Boclair, 202 Ill. 2d 89, 99,
789 N.E.2d 734, 741 (2002). However, it has also noted that section 122-2.1(c) of the Act
states a trial court “may examine the court file of the proceeding in which the petitioner was
convicted, any action taken by an appellate court in such proceeding and any transcripts of
such proceeding.” (Emphasis added.) 725 ILCS 5/122-2.1(c) (West 2002); People v. Blair, 215
Ill. 2d 427, 446, 831 N.E.2d 604, 616 (2005). The trial court may also look to these sources to
determine if the petition’s factual or legal allegations are rebutted. Blair, 215 Ill. 2d at 446.
¶ 57 Although a trial court may examine the record, including any appeal and transcripts of
proceedings, the court is not required to do so at the first stage, and it is certainly not required
to scour the record to determine the petition’s merit. Review of a defendant’s pro se petition is
meant to be quick; the trial court has just 90 days to determine if a petition is frivolous or
patently without merit. Experience shows that trial courts frequently rely only on the pro se
petition itself, and this is to be expected. In short, a trial court at the first stage is not expected
or required to review the common-law record or the report of proceedings.
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¶ 58 Here, postconviction counsel may have realized that the judge evaluating the pro se
petition was unfamiliar with defendant’s case, and counsel may have found it appropriate to
simply point out that defendant’s pro se arguments (1) were contradicted by the record and
(2) had been raised on direct appeal and rejected by this court. But even if that had not been
the case, if after reviewing the record and speaking with the defendant, postconviction counsel
determines that all of defendant’s claims are barred by res judicata or contradicted by the
record, counsel has an ethical obligation to move to withdraw if he reasonably believes that
the trial court erred when it found defendant’s petition had facial merit. Kuehner, 2015 IL
117695, ¶ 22.
¶ 59 2. Explanation That Each Claim Is in Fact Meritless
¶ 60 Having determined that counsel properly moved to withdraw based on information that
was not apparent on the face of the pro se petition, we now address whether counsel provided
at least some explanation as to why each pro se claim lacked merit. As we noted earlier,
defendant does not argue on appeal that postconviction counsel failed to address each claim,
and our review of the record confirms that counsel addressed all of the claims raised in
defendant’s petition. Instead, defendant argues that postconviction counsel should have
recognized that defendant had stated a meritorious claim that trial counsel provided ineffective
assistance. Namely, trial counsel was ineffective for failing to “effectively” cross-examine
Trudeau to “destroy” his credibility. Defendant points out several differences between
Trudeau’s answers in the interview transcripts and his trial testimony, and defendant suggests
that, had trial counsel impeached Trudeau with those differences, there is a reasonable
probability of a different outcome.
¶ 61 In his motion, postconviction counsel addressed this claim and demonstrated it was in fact
contradicted by the record. See Hodges, 234 Ill. 2d at 16 (“An example of an indisputably
meritless legal theory is one which is completely contradicted by the record.”). In his motion
to withdraw, postconviction counsel stated as follows:
“Petitioner also asserts that trial counsel’s lack of pretrial investigation deprived
him of a potential defense. Specifically, Petitioner argues that if trial counsel had
investigated the initial interview Trudeau gave on May 22, 2010, and presented this
interview at trial, then Petition[er] would not have been convicted by false testimony.
There is no evidence that appears from the record to support the conclusion that
Trudeau gave false testimony at trial. Trial counsel had the opportunity to
cross[-]examine Trudeau about the interviews he gave and the veracity of the
statements he made to the police during his interviews on May 22, 2010. In fact, trial
counsel did cross[-]examine Trudeau on these matters. [Citation.] Therefore, Petitioner
has not demonstrated a deficient performance by trial counsel that caused him
prejudice.” (Emphasis added.)
¶ 62 Our review of the trial testimony confirms postconviction counsel’s assertions. Trial
counsel was in fact aware of all three of Trudeau’s interviews and specifically cross-examined
Trudeau regarding his prior statements in those interviews. Trial counsel even went so far as
to read directly from portions of the interview transcripts in an effort to confront Trudeau with
his inconsistent statements. “Generally, the decision whether or not to cross-examine or
impeach a witness is a matter of trial strategy which will not support a claim of ineffective
assistance of counsel.” People v. Pecoraro, 175 Ill. 2d 294, 326, 677 N.E.2d 875, 891 (1997).
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“Defendant can only prevail on an ineffectiveness claim by showing that counsel’s approach
to cross-examination was objectively unreasonable.” Id. at 327. Accordingly, in his motion to
withdraw, postconviction counsel presented the record, which contradicted defendant’s
allegations, and provided an explanation that defendant’s postconviction petition was in fact
meritless because Trudeau was in fact cross-examined. Although cross-examination could
have been done differently, defendant’s claims that (1) trial counsel’s cross-examination was
so deficient that it caused defendant prejudice or (2) the cross-examination was anything other
than the product of trial strategy are completely without merit.
¶ 63 Moreover, this court’s prior decision on defendant’s direct appeal confirms that Trudeau
was “effectively” cross-examined. We noted that “Trudeau admitted his testimony differed
from what he initially told the police during his three interviews.” Fathauer, 2013 IL App (4th)
120424-U, ¶ 20. We further noted as follows:
“The jury was informed of Trudeau’s conduct and pending methamphetamine-related
charges, as well as Trudeau’s alleged purchase of stolen auto parts. Defense counsel
cross-examined Trudeau regarding his motive to lie and of his anticipation of receiving
probation for the offense. The jury, who heard Trudeau and the other witnesses testify,
apparently believed Trudeau, in spite of his alleged motive to lie and his
methamphetamine addiction. This determination lies within the role of the jury.
[Citation.] The record does not establish this decision was unreasonable or unreliable.”
Id. ¶ 38.
¶ 64 Despite defendant’s claims, postconviction counsel was therefore correct when he stated
that “[t]rial counsel effectively cross[-]examined five of the State’s nine witnesses” and
“[defendant] has not demonstrated a deficient performance by trial counsel that caused him
prejudice.” Accordingly, postconviction counsel’s motion to withdraw (1) brought “to the trial
court’s attention information that was not apparent on the face of the pro se petition at the
time” the court determined it had merit and (2) explained “why, despite its superficial virtue,
the pro se petition [was] in fact frivolous or patently without merit” as to each and every claim.
(Emphasis in original.) Kuehner, 2015 IL 117695, ¶ 21.
¶ 65 We note that postconviction counsel cited Kuehner in his motion to withdraw, and at the
hearing on his motion, counsel reiterated to the trial court that this court had previously
reviewed defendant’s contentions about the credibility of Trudeau. Citing recent Illinois
Supreme Court precedent directly on point is always a good idea, and we commend
postconviction counsel for doing so. We further note that attorneys appointed in postconviction
proceedings who believe they must withdraw would be well served by making explicit, both
in their motion and at any hearing, the information not apparent on the face of the pro se
petition that counsel is bringing to the trial court’s attention. Additionally, although not
required, trial courts would do well to make an explicit finding that postconviction counsel
complied with Kuehner and set forth on the record (1) the additional information
postconviction counsel brought to the court’s attention and (2) that counsel has addressed each
of defendant’s pro se claims.
¶ 66 C. Ineffective Assistance of Postconviction Counsel
¶ 67 Defendant also asserts he was denied effective assistance of postconviction counsel
because counsel should have amended his pro se petition to demonstrate that trial counsel
failed to effectively cross-examine Trudeau. However, as we have just explained, any such
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argument was contradicted by the record, and “an indisputably meritless legal theory is one
which is completely contradicted by the record.” Hodges, 234 Ill. 2d at 16. Postconviction
counsel could not have been ineffective for failing to assert a meritless claim. Greer, 212 Ill.
2d at 205 (explaining that counsel is not required to advance frivolous claims because such
claims are not “necessary” within the meaning of Rule 651(c)).
¶ 68 Further, we note that the record demonstrates that postconviction counsel complied with
Rule 651(c). In addition to his Rule 651(c) affidavit, at the hearing on his motion to withdraw,
postconviction counsel repeatedly mentioned that he had met with defendant and explained
why he felt he had to withdraw from representation. Defendant acknowledged these efforts but
expressed his disagreement with counsel’s decision. The Act entitles defendant to a reasonable
level of assistance, and a defendant receives such assistance when counsel complies with the
requirements of Rule 651(c). Kuehner, 2015 IL 117695, ¶ 15. Based on our review of the
record, we conclude that postconviction counsel in fact “(1) consulted with the petitioner to
ascertain his allegations of deprivation of constitutional rights; (2) examined the record of
proceedings at trial; and (3) made any amendments to [the] pro se petition[ ] that [were]
necessary to adequately present the petitioner’s allegations.” Id.
¶ 69 III. CONCLUSION
¶ 70 For the reasons stated, we affirm the trial court’s judgment.
¶ 71 Affirmed.
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