People v. Frey ( 2024 )

2024 IL 128644IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128644)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
RUSSELL A. FREY, Appellee.
Opinion filed January 19, 2024.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Russell A. Frey, was convicted in the circuit court of Lee County of
three counts of predatory criminal sexual assault of a child (720 ILCS 5/11-
1.40(a)(1) (West 2010)). The court sentenced him to consecutive prison terms
totaling 50 years. The appellate court affirmed his conviction and sentence. People
v. Frey, 2018 IL App (2d) 150868-U. Petitioner then filed a pro se postconviction
petition. See 2022 IL App (2d) 210044-U. The trial court appointed counsel for
petitioner when it failed to rule on the petition within 90 days. Id. ¶ 9. Counsel later
moved to withdraw, arguing that petitioner had no meritorious claims. Id. ¶ 10. The
trial court granted the motion to withdraw. Id. ¶ 11. The State moved to dismiss the
petition, adopting counsel’s arguments from the motion to withdraw. Id. ¶ 12. The
trial court granted the motion to dismiss. Id. The appellate court vacated and
remanded with directions, holding that postconviction counsel did not provide
reasonable assistance of counsel when he failed to ascertain one of petitioner’s
claims. Id. ¶ 36. For the reasons that follow, we reverse the judgment of the
appellate court.
¶2 BACKGROUND
¶3 The State charged petitioner with three counts of predatory criminal sexual
assault of a child. The State alleged that petitioner committed three acts of sexual
penetration on his 12-year-old daughter. The cause proceeded to a jury trial.
Approximately two hours into its deliberations, the jury sent a note to the judge
asking whether the burden of proof required physical evidence. The court, with the
consent of the parties, responded, “[y]ou are to decide this case based on the
evidence you have seen and heard together with the instructions I have given you.”
Later that evening, the jury returned a verdict of guilty on all three counts. The court
polled the jurors, and each confirmed that this was his or her verdict. The court
denied petitioner’s motion for a new trial and sentenced him to consecutive prison
terms of 10, 15, and 25 years.
¶4 Petitioner appealed, arguing that the trial court erred in admitting certain
testimony from petitioner’s stepson and a letter that petitioner had written to the
state’s attorney. Frey, 2018 IL App (2d) 150868-U, ¶ 47. The appellate court held
that the trial court did not abuse its discretion in admitting the testimony from
petitioner’s stepson. Id. ¶ 57. As for the letter, the court concluded that its probative
value outweighed any prejudice to petitioner. Id. ¶ 61. However, the court then
explained that, even if it were to agree with petitioner that the prejudice arising
from the letter outweighed its probative value, any error in admitting it was
harmless. Id. ¶ 62. In arguing against the error being harmless, petitioner contended
that it was a close case. Id. ¶ 63. He relied on the note from the jury asking whether
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physical evidence was required for the State to meet its burden of proof. Id.
Petitioner also relied on a second jury note explaining that the jurors were initially
deadlocked. Id. ¶ 63 n.2. However, the appellate court concluded that this note was
not sent to the trial court:
“The defendant also points out that the record contains a second note
apparently written by the jury, which reads, ‘Please advise—We have 10 guilty
(all 3 counts) 2 not guilty all 3 counts. The 2 not guilty are firm that the State
did not prove guilt on all the counts.’ However, there is absolutely no indication
in the record as to the source of this note. The trial transcript reflects that the
jury retired to deliberate about 4 p.m. About 6 p.m., it sent out the note regarding
physical evidence, and the trial court called the attorneys back to discuss the
appropriate response, which it then delivered to the jury. The bailiff notified the
court that the jury had reached a verdict shortly before 10 p.m. There is no
mention whatsoever of the second note regarding the 10-2 split in the jury, and
no explanation for its presence in the common law record. Accordingly, we
have difficulty in determining what weight, if any, should be placed on the
second note. Ordinarily, when the record is silent on a point, we must presume
that the trial court acted in conformity with the law. In re Estate of Cargola,
2017 IL App (1st) 151823, ¶ 17. A trial court generally must address on the
record any notes it receives from the jury. See People v. Childs, 159 Ill. 2d 217,
228-29 (1994). We presume that the trial court’s failure to address the second
note on the record indicates that the jury ultimately chose not to send out the
second note. This presumption is buttressed by the fact that the trial court took
great pains to properly address the note it received about physical evidence.”
Id.Finally, the court rejected petitioner’s cumulative error argument. Id. ¶ 64. The
court noted that, even if it viewed the admission of the letter as error, a petitioner
cannot argue cumulative error based on one error. Id.
¶5 Petitioner then filed the pro se postconviction petition that is the subject of this
appeal. See 2022 IL App (2d) 210044-U. In the body of the petition, petitioner
presents two claims for relief: an ineffective assistance of counsel claim and a
proportionate penalties sentencing claim. The petition begins by explaining that
“[t]he main claim is ineffective assistance of counsel.” Over the next two pages,
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petitioner details five specific ways in which he believed that trial counsel was
ineffective. On the next page, he argues that appellate counsel was ineffective for
failing to raise the claims of ineffective assistance of trial counsel. He next alleges
that both trial and appellate counsel “fell short when it comes to the investigation
done in this case.” In the concluding paragraph of the ineffective assistance of
counsel portion of the petition, petitioner quotes Justice Black’s dissent in Betts v.
Brady, 316 U.S. 455, 476 (1942) (Black, J., dissenting, joined by Douglas and
Murphy, JJ.), for the proposition that “[w]hether a man is innocent cannot be
determined from a trial in which, as here, denial of counsel has made it impossible
to conclude, with any satisfactory degree of certainty, that the defendant’s case was
adequately presented.” In the next two sentences, he argues that he is entitled to a
new trial because he has met both prongs of the Strickland test. See Strickland v.
Washington, 466 U.S. 668 (1984). The concluding sentence of this final paragraph
is: “The initial jury could not agree on a guilty verdict in this case, yet the Judge
told them they could not leave that night unless they all agreed on something, being
outnumbered and pressured they took the defendants [sic] freedom!”
¶6 On the next page of the petition, petitioner presents his proportionate penalties
claim. The claim is set forth in a paragraph titled “Constitutional Violation.”
Petitioner begins by noting that he was sentenced to a total of 50 years after a jury
verdict in which two jurors initially voted not guilty. Petitioner asserts that the judge
told the jurors that they should continue deliberating and that they could not leave
until they agree. Petitioner then says that this caused him to be sentenced to a
de facto life sentence and that the court failed to consider his rehabilitative
potential. Petitioner cites the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11) and argues that he will likely not survive
his time in prison. Petitioner argued that the court imposing a sentence that will not
allow him to ever again be a productive citizen disregarded the central goal of our
penal system.
¶7 The next two pages of the petition are petitioner’s “Motion for Appointment of
Counsel.” Petitioner explains that he is without sufficient funds to pay for the costs
of the proceedings or to hire an attorney, that he has a constitutional right to access
to the courts, and that his claims are not frivolous.
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¶8 Petitioner appended to the petition the affidavit of his sister, Roxanne Shaffer.
The affidavit is preceded by a page titled “Newly Discovered Evidence.” In a
paragraph, he explains the significance of Shaffer’s affidavit:
“On July 25, 2019 Roxanne Shaffer made a Sworn Affidavit on behalf of the
defendant which is claiming a violation of the defendants [sic] right to due
process by forcing the jury to come to a unanimous verdict or they were not
allowed to leave that night despite a 10-2 verdict! Failure of trial counsel to
fully depose all witnesses also adds this to the claim for ineffective assistance
of trial counsel.”
¶9 In Shaffer’s affidavit, she says that at approximately 9 p.m. on the date of her
brother’s conviction, the jury sent a note saying that the verdict was 10 to 2.
According to Shaffer, the jurors asked if they could continue the next day, but the
judge denied the request, saying that he had a murder trial beginning the next day
and that he did not want to postpone it. Within half an hour to 45 minutes, the jury
came back with a guilty verdict. Shaffer said that she believed that this took away
petitioner’s right to due process.
¶ 10 On May 13, 2020, the trial court appointed attorney Eric Arnquist to represent
petitioner. The court explained that it was appointing counsel because the 90-day
time frame for entering an order on the petition had elapsed.
¶ 11 On October 13, 2020, Arnquist filed a motion to withdraw as counsel for
petitioner. In the motion, Arnquist noted that the petition had not received a first
stage review by the trial court. Arnquist contended that petitioner’s claims lacked
merit and that, pursuant to People v. Kuehner, 2015 IL 117695, he would explain
why. Arnquist then went through petitioner’s claims of ineffective assistance of
trial and appellate counsel and explained why they lacked merit. He next explained
why petitioner’s sentencing claim lacked merit. Arnquist concluded the motion
with a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
Arnquist certified that he had consulted with petitioner to ascertain his contentions
of constitutional rights, had examined the record of proceedings from the trial, and
had made any amendments to the pro se petition that were necessary for an
adequate presentation of petitioner’s contentions.
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¶ 12 At a hearing on the motion, Arnquist said that he reviewed his motion to
withdraw in detail with petitioner. Arnquist further explained that he had reviewed
the record on multiple occasions and had considered every page of it. He also
reviewed everything that petitioner had filed and all correspondence with
petitioner. He also reviewed the appellate court decision in the original appeal.
Arnquist said that petitioner had asked him to reach out to potential witnesses and
that he had done so. However, he was not able to make contact with everyone that
petitioner wanted him to. The court asked petitioner if he had reviewed the motion
to withdraw with Arnquist. Petitioner responded, “Yeah. I object to him
withdrawing.” The court then granted the motion to withdraw, explaining that it
agreed with Arnquist’s assessment of the issues.
¶ 13 The State then asked for leave of court to file a motion to dismiss instanter. The
court granted the motion. In the motion, the State adopted the reasoning and
conclusions of Arnquist’s motion to withdraw. At a hearing on the motion to
dismiss, the State stood on the motion. The court asked petitioner if he had anything
to argue in response to the State’s motion. Petitioner responded that he had asked
Arnquist to make some phone calls and that Arnquist had not made them. The court
then asked petitioner if he had anything to argue in response to the motion to
dismiss. Petitioner responded, “Other than the fact that my trial lawyer didn’t do
everything he could to get me a not-guilty verdict. That’s all I can argue with.” The
court then asked petitioner if he had anything else to argue. Petitioner responded,
“No, Your Honor.” The court granted the motion to dismiss, stating that it agreed
with Arnquist’s assessment that petitioner’s claims lacked merit.
¶ 14 Petitioner appealed, arguing that postconviction counsel did not provide
reasonable assistance under Rule 651(c) because his motion to withdraw failed to
address petitioner’s due process claim concerning the jury note. Accordingly, he
contended that the trial court had abused its discretion in allowing postconviction
counsel to withdraw. 2022 IL App (2d) 210044-U, ¶ 14. The appellate court agreed
with petitioner. Id. ¶ 34.
¶ 15 The court noted that Rule 651(c) prescribes specific duties to ensure that
postconviction petitioners receive a reasonable level of assistance. Id. ¶ 20. If, after
demonstrating compliance with Rule 651(c), counsel determines that the pro se
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petition is frivolous or patently without merit, counsel may move to withdraw. Id.
¶ 21.
¶ 16 The court explained that its review of an order permitting withdrawal differs
based on how the petition arrived at the second stage. Id. ¶ 23. If the petition
advanced to the second stage because the trial court found it potentially meritorious,
then the motion to withdraw must contain at least some explanation as to why all
of the claims set forth in the petition are so lacking in legal and factual support that
withdrawal is allowed. Id. (citing Kuehner, 2015 IL 117695, ¶ 27). If, however, the
petition advanced to the second stage based on trial court inaction, “ ‘judicial
economy sometimes dictates affirming the grant of leave to withdraw even where
the motion to withdraw is deficient.’ ” Id. ¶ 24 (quoting People v. Moore, 2018 IL
App (2d) 170120, ¶ 38). The court noted that, in that situation, withdrawal may be
allowed if counsel complied with Rule 651(c) and the record demonstrates that the
claims in the pro se petition are frivolous or patently without merit. Id. ¶ 26.
However, the court explained it had previously held in Moore that, even when the
petition advances to the second stage based on trial court inaction, appointed
counsel’s motion to withdraw must address the potential merit of all the petition’s
claims. Id. ¶ 27. In the court’s view, the duty of counsel is the same no matter how
the petition advances to the second stage. The difference is that, when the petition
advances to the second stage based on trial court inaction, judicial economy may
sometimes warrant affirming the grant of a motion to withdraw even in the face of
a deficient motion. Id.
¶ 17 The court explained that it held in Moore that, when the motion to withdraw
fails to address one of the pro se petitioner’s claims, the case must be remanded
even when counsel filed a Rule 651(c) certificate. Id. ¶ 28. Moore read People v.
Greer, 212 Ill. 2d 192 (2004), to hold that “ ‘the reviewing court cannot relieve
counsel of his or her duty under Rule 651(c) to ascertain the petitioner’s claims.’ ”
(Emphasis in original.) 2022 IL App (2d) 210044-U, ¶ 27 (quoting Moore, 2018 IL
App (2d) 170120, ¶ 43). The court explained that Moore stands for the proposition
that, if counsel does not address one of the pro se petition’s claims in the motion to
withdraw, then counsel has not fulfilled his or her duty under Rule 651(c) to
ascertain the petitioner’s claims. Id. ¶ 28.
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¶ 18 The court then held that the present case is governed by Moore. The court noted
that counsel’s motion to withdraw did not mention “the claim based on the second
jury note or any of the circumstances surrounding the claim.” Id. ¶ 29. The court
rejected the State’s argument that, when a petition advances to the second stage
based on trial court inaction, the filing of a Rule 651(c) certificate is sufficient to
raise a presumption that counsel complied with the rule. Id. ¶ 30. The court
explained that it would not “presume compliance when the record suggests
otherwise.” Id. ¶ 31. The court believed that the petition, liberally construed, set
forth a due process claim based on the second jury note. Id. ¶ 32. The court rejected
the State’s assertion that petitioner had forfeited the claim by not raising the issue
pro se at the hearing on the motion to dismiss. Id. The court noted that the State had
failed to cite any authority for applying forfeiture in such a manner as to excuse an
attorney’s lack of compliance with Rule 651(c). Id. Moreover, the court held that
petitioner’s statement at the hearing that his counsel did not make requested phone
calls and did not “ ‘do everything he could to get [defendant] a not-guilty verdict’ ”
fairly encompassed a due process claim based on the second jury note. Id.
Accordingly, as it had done in Moore, the court vacated the orders allowing the
motion to withdraw and dismissing the petition and remanded the cause with
directions to appoint new postconviction counsel for petitioner. Id. ¶ 34.
¶ 19 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
Oct. 1, 2021).
¶ 20 ANALYSIS
¶ 21 On appeal, the State argues that the appellate court improperly applied the
Kuehner standard, which requires appointed counsel moving to withdraw to explain
why each of the claims in the pro se petition lacks merit. Because this petition
advanced to the second stage based on trial court inaction, the State argues that it
is governed by Greer. According to the State, the relevant inquiry under Greer is
whether (1) counsel complied with Rule 651(c) and (2) the petition’s claims lack
merit. The State contends that counsel complied with Rule 651(c) and that a due
process claim based on the second jury note is frivolous and patently without merit.
Both the scope of an attorney’s duties under Rule 651(c) and an attorney’s
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compliance with that rule are reviewed de novo. See People v. Smith, 2020 IL App
(1st) 181220, ¶ 13.
¶ 22 The Post-Conviction Hearing Act (Act) provides a mechanism for a criminal
defendant to assert that “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
2018). At the first stage of postconviction proceedings, the circuit court must
independently review the postconviction petition and shall dismiss it if it is
“frivolous or is patently without merit.” Id. § 122-2.1(a)(2). The petition advances
to the second stage if (1) the court fails to rule on the petition within 90 days,
regardless of the petition’s merit, or (2) the facts alleged in the petition state an
arguable claim of constitutional deprivation. People v. Urzua, 2023 IL 127789,
¶ 32.
¶ 23 At the second stage, counsel may be appointed to assist an indigent defendant.
Id. ¶ 33. In a postconviction proceeding, there is no constitutional right to the
assistance of counsel. People v. Custer, 2019 IL 123339, ¶ 30. Rather, the right to
counsel is a matter of “legislative grace.” People v. Porter, 122 Ill. 2d 64, 73 (1988).
A postconviction petitioner is entitled only to the level of assistance granted by the
Act, which this court has determined to be a “ ‘reasonable’ level of assistance”
(People v. Flores, 153 Ill. 2d 264, 276 (1992)), which is less than that afforded by
the federal and state constitutions at trial (People v. Pendleton, 223 Ill. 2d 458, 472
(2006)).
¶ 24 Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), which governs the
appointment of counsel in postconviction proceedings provides, in part, as follows:
“The record filed in that court 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.”
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Postconviction counsel’s obligation is to investigate and properly present the claims
raised by the petitioner. Pendleton, 223 Ill. 2d at 472. Counsel may, but is not
required to, raise additional claims on the petitioner’s behalf. Id. at 476. If counsel
files a certificate pursuant to Rule 651(c), a rebuttable presumption arises that the
petitioner received the reasonable assistance of counsel. People v. Addison, 2023
IL 127119, ¶ 21.
¶ 25 In Greer, this court explained that, when appointed counsel determines that the
claims in the petition lack merit and moves to withdraw, counsel “should make
some effort to explain why defendant’s claims are frivolous or patently without
merit.” (Emphasis in original.) Greer, 212 Ill. 2d at 212. In that case, postconviction
counsel asserted that he could not “ ‘properly substantiate’ ” the petitioner’s claim.
Id. at 200. Although this court cautioned that whether postconviction counsel can
properly substantiate a petitioner’s claim is not the standard by which counsel
should be judging a petitioner’s postconviction claim, this court stated that it would
not reverse the granting of the motion to withdraw when counsel fulfilled his Rule
651(c) duties and the record demonstrated that the petitioner’s claims were
frivolous and without merit. Id. at 212.
¶ 26 In Kuehner, this court was again faced with a situation in which appointed
counsel moved to withdraw but did not explain why each of the petitioner’s issues
lacked merit. Kuehner, 2015 IL 117695, ¶ 9. Counsel argued in her motion that the
petitioner’s claims lacked merit. She filed a supporting brief that addressed in detail
her reasons for concluding that two of the petitioner’s claims lacked merit. Counsel,
however, failed to address or even acknowledge one of the petitioner’s claims. Id.This court explained that the case was in a different procedural posture than Greer.
Id. ¶ 18. In Greer, the petition had advanced to the second stage when the court
failed to rule on the petition within 90 days. Id. ¶ 19. In Kuehner, the petition
advanced to the second stage because the trial court determined that it was not
frivolous or patently without merit. Id. ¶ 20. This court concluded that, when an
attorney moves to withdraw in that situation, he or she “may not simply move to
withdraw on the grounds that the pro se claims are frivolous or patently without
merit, as the trial court already has ruled expressly to the contrary.” Id. ¶ 21. Rather,
counsel must demonstrate, with respect to each of the pro se claims, “why the trial
court’s initial assessment was incorrect.” Id. In other words, the court explained:
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“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.”
(Emphasis in original.) Id.
¶ 27 Taken together, Greer and Kuehner establish that, whether a petition advances
to the second stage based on judicial inaction or because the trial court found
potential merit to the claims, a properly filed motion to withdraw is one that sets
forth why the claims lack merit. This is confirmed by this court’s recent decision in
Urzua, 2023 IL 127789. In that case, the petition advanced to the second stage
because of trial court inaction. Id. ¶ 9. In setting forth the governing law, this court
cited Kuehner for the proposition that, when counsel determines that he is ethically
obligated to withdraw, “appointed counsel must explain why each of the
petitioner’s pro se claims lacks merit.” Id. ¶ 33.
¶ 28 Thus, although counsel’s obligation is the same in either scenario, the
consequences of filing a defective motion are potentially different. Kuehner
establishes a rule of automatic reversal if the petition has advanced based on a trial
court finding that the claims are potentially meritorious but counsel fails to address
one of those claims in the motion to withdraw. Kuehner, 2015 IL 117695, ¶¶ 22-
24. In a case in which the petition has advanced based on trial court inaction, this
court has recognized that, in certain circumstances, reversal is not required. In
Greer, this court chose not to reverse when it appeared that counsel had fulfilled
his duties under Rule 651(c) and the record showed that the petition was frivolous
and without merit. Greer, 212 Ill. 2d at 212. In other words, as the appellate court
has recognized, Greer stands for the proposition that “judicial economy sometimes
dictates affirming the grant of leave to withdraw even where the motion to withdraw
is deficient.” Moore, 2018 IL App (2d) 170120, ¶ 38.
¶ 29 In this case, the appellate court adopted an approach that largely collapsed the
above framework. Although the court acknowledged and accepted the difference
between Kuehner and Greer (2022 IL App (2d) 210044-U, ¶¶ 24-26), it then
adopted a framework that would require automatic reversal whenever a claim is not
addressed in the motion to withdraw. The court determined that, liberally construed,
petitioner’s petition contained a due process claim based on the second jury note.
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Id. ¶ 32. The court believed that postconviction counsel’s failure to mention this
claim in the motion to withdraw necessarily meant that counsel had failed to
ascertain one of petitioner’s claims. Id. ¶ 29. Thus, because Rule 651(c) requires
counsel to ascertain petitioner’s claims, counsel had violated Rule 651(c) by failing
to address this claim in the motion to withdraw. Id. ¶¶ 28-29. The court
acknowledged that counsel had filed a Rule 651(c) certificate (id. ¶ 10) but
impliedly determined that petitioner had rebutted the presumption of reasonable
assistance arising from the certificate (id. ¶¶ 28-29). And, because Rule 651(c)
violations are not subject to harmless error analysis (id. ¶ 28), reversal and remand
for the appointment of new counsel were required (id. ¶ 34). The framework
adopted by the appellate court necessarily means that anytime a postconviction
petitioner can identify a claim that the petition can be liberally construed to assert,
automatic reversal is required if the claim is not mentioned in counsel’s motion to
withdraw.
¶ 30 The problem with the appellate court’s position is that it is not always possible
to discern what claims a pro se postconviction petitioner is raising. That is why
Rule 651(c) ties the “ascertainment” requirement to a consultation requirement.
The requirement under Rule 651(c) is not merely to ascertain the petitioner’s
claims, as the appellate court stated. See id. ¶ 27. Rather, Rule 651(c) requires
counsel to certify that he or she “consulted with petitioner by phone, mail,
electronic means or in person to ascertain his or her contentions of deprivation of
constitutional rights.” (Emphases added.) Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
Postconviction counsel certified that he did so, following which he filed a motion
to withdraw that addressed petitioner’s ineffective assistance of counsel and
sentencing claims. Because counsel filed a Rule 651(c) certificate, a rebuttable
presumption of reasonable assistance arose. Addison, 2023 IL 127119, ¶ 21.
Petitioner can overcome that presumption by showing that postconviction counsel
did not substantially comply with the strictures of the rule. Id.¶ 31 We hold that petitioner did not rebut the presumption of reasonable assistance.
Nothing in the record establishes that counsel failed to consult with petitioner to
ascertain his claims of a deprivation of constitutional rights. The appellate court
concluded that petitioner rebutted the presumption because the petition could be
liberally construed to assert a due process claim. 2022 IL App (2d) 210044-U, ¶ 32.
However, the petition was, at best, ambiguous on that matter, and postconviction
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counsel certified that he consulted with petitioner to ascertain his claims. Following
that consultation, he filed a motion to withdraw addressing the petition’s ineffective
assistance of counsel and sentencing claims. There is nothing in the record to show
that counsel did not consult with petitioner to ascertain his claims. No one but
petitioner and postconviction counsel knows what was said during those
consultations. If petitioner confirmed that the claims he intended to raise were
ineffective assistance of counsel and a proportionate penalties claim, the record
would look precisely as it does now. Postconviction counsel addressed the merits
of those issues in his motion to withdraw, and he told the court that he went over
the motion in detail with petitioner. The trial court asked petitioner if he had
anything to say in response. Petitioner stated that he objected to counsel
withdrawing, but he did not say that counsel had overlooked any of his claims. At
the hearing on the motion to dismiss the petition, petitioner argued that he asked
postconviction counsel to make some phone calls and that counsel did not do so.
He also argued that he did not believe that trial counsel did everything he could to
obtain a not-guilty verdict. He did not mention a due process claim or state that one
had been overlooked by counsel. In pointing this out we are not, as petitioner
argues, holding that he forfeited a claim by his silence or that we are shifting part
of the burden to him. We are simply acknowledging that there is nothing in the
record to rebut the presumption of reasonable assistance that arose from counsel’s
Rule 651(c) certificate. Moreover, we disagree with the appellate court’s assertion
that petitioner stating that counsel did not make all requested phone calls and that
trial counsel did not do everything he could to get petitioner a not-guilty verdict
“fairly encompassed the due process claim.” See id. We do not see how this can be
understood to be referencing counsel overlooking a due process claim based on the
second jury note.
¶ 32 The most natural way to read the petition is that it raises substantive claims of
ineffective assistance of counsel and a proportionate penalties sentencing claim.
The petition is divided into three sections: (1) the substantive claims, (2) the motion
for the appointment of counsel, and (3) the supporting documentation. Although
the jury note is mentioned in both sections of the substantive portion of the petition,
it is tied to petitioner’s other claims. There is no due process claim asserted in the
substantive portion of the petition. The only time due process is mentioned is in the
supporting documentation. Petitioner’s sister claimed in her affidavit that the trial
judge denied the jurors’ request to continue their deliberations the next day and that
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she “believe[d] this took away [petitioner’s] right of due process.” On the preceding
page, petitioner described the affidavit and explained why he was attaching it. He
explained that it adds to the claim of ineffective assistance of counsel.
¶ 33 It seems clear that this is how appointed counsel read the petition. He filed a
certificate pursuant to Rule 651(c) in which he stated that he consulted with
petitioner to ascertain his deprivation of constitutional rights. Counsel’s failure to
mention a due process claim based on the second jury note strongly suggests that,
after consulting with petitioner, counsel reasonably ascertained that petitioner was
not asserting a standalone due process claim based on the second jury note. There
is no question that his intent was to address all of petitioner’s claims in his motion
to withdraw. He stated in the motion that it was being filed pursuant to this court’s
holding in Kuehner and that his obligation was to explain why all of the petition’s
claims lack merit. In Kuehner, we held that postconviction counsel’s motion to
withdraw was required to address claims that were “specific, substantial, and
sufficiently present in the petition to warrant appointed counsel’s attention.”
Kuehner, 2015 IL 117695, ¶ 23. Counsel did so by addressing the claims of
ineffective assistance of counsel and sentencing error.
¶ 34 Petitioner relies on Moore, 2018 IL App (2d) 170120, in which the appellate
court held that the petitioner had failed to comply with Rule 651(c) when counsel
filed a motion to withdraw that omitted one of the petitioner’s claims. The case had
proceeded to stage two when the trial court failed to rule on the petition within 90
days. The court held that counsel had failed to ascertain petitioner’s claim that
appellate counsel was ineffective for failing to challenge amendments to the
indictment. Id. ¶ 41. The court acknowledged the pro se petition’s “length and
density” but stated that it could not excuse compliance with Rule 651(c)’s mandate
that counsel ascertain the petitioner’s claims. Id. ¶ 42. The State argues that Moore
was incorrectly decided because (1) it decoupled the ascertainment requirement
from the consultation requirement and (2) the court failed to acknowledge—let
alone apply—the presumption that arises from the filing of a Rule 651(c) certificate.
For purposes of this appeal, we do not need to address the correctness of Moore, as
it is clearly distinguishable. In Moore, there was an omitted claim that was clearly
stated in the petition. See id. ¶ 24. Because we are not faced with that situation, we
have no need to weigh in on the correctness of that decision.
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¶ 35 Petitioner has failed to rebut the presumption of reasonable assistance that arose
from counsel’s Rule 651(c) certificate. We note that, in addition to arguing that
postconviction counsel complied with Rule 651(c), the State also argues that any
due process claim based on the second jury note would lack merit. Because this
case arose from a situation in which the petition proceeded to stage two because of
trial court inaction, the State contends that Greer applies and that the relevant
inquiry is whether counsel complied with Rule 651(c) and whether petitioner’s
claims lack merit. As explained above, however, regardless of how the petition
arrives at the second stage, a proper motion to withdraw should explain why the
petition’s claims lack merit. The separate Greer standard comes into play only
when the court is faced with a deficient motion to withdraw. That is not the situation
here. Petitioner has not established that the motion to withdraw was deficient.
Because petitioner failed to rebut the presumption that arose from counsel’s Rule
651(c) certificate, we presume that the petitioner’s claims are the ones counsel
addressed in the motion to withdraw, and petitioner has not challenged either
postconviction counsel’s or the trial court’s assessment of the merits of those
claims.
¶ 36 CONCLUSION
¶ 37 Petitioner failed to rebut the presumption of reasonable assistance arising from
counsel’s Rule 651(c) certificate. We therefore reverse the appellate court’s
judgment. We affirm the trial court’s orders allowing postconviction counsel to
withdraw and dismissing petitioner’s postconviction petition.
¶ 38 Appellate court judgment reversed.
¶ 39 Circuit court judgment affirmed.
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