People v. Tate

2022 IL App (2d) 220046-UNo. 2-22-0046
Order filed November 28, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CF-579
)
MARK A. TATE, ) Honorable
) Joseph C. Pedersen,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Birkett concurred in the judgment.
ORDER
¶1 Held: Appellate counsel’s motion for leave to withdraw is granted because none of the
potential issues raised on appeal have arguable merit; as such, the judgment of the
circuit court is affirmed.
¶2 Defendant appeals the dismissal of his amended postconviction petition raising claims
of (1) ineffective assistance of trial counsel in a variety of respects; (2) ineffective assistance of
counsel on direct appeal, and (3) several violations of due process during the trial and after
sentencing. His appellate counsel has moved to withdraw (Pennsylvania v. Finley, 481 U.S. 551(1987); People v. Lee, 251 Ill. App. 3d 63 (1993)), contending that she read the record and found
2021 IL App (2d) 190670-Uno issue of arguable merit. Counsel supports her motion with a memorandum of law providing a
statement of facts, a list of potential issues, and arguments why those issues lack arguable merit.
Counsel served defendant with a copy of the motion and memorandum. Defendant was given 30
days to file a response, and he did so. We conclude that this appeal lacks arguable merit based on
the reasons set forth in counsel’s memorandum. Therefore, we grant counsel’s motion and affirm
the trial court’s judgment.
¶3 I. BACKGROUND
¶4 After a jury trial, defendant, Mark A. Tate, was found guilty of one count of aggravated
criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2010)), six counts of criminal sexual assault
of a family member who was under 18 years old (id. § 12-13(a)(3)) and seven counts of aggravated
criminal sexual abuse (id. § 12-16(b)). The victim of these offenses, K.R., was the daughter of
defendant’s wife, Cynthia T. Defendant filed (1) a posttrial motion through counsel and (2) a
pro se motion alleging that trial counsel had rendered ineffective assistance and requesting the
appointment of an attorney to address the pro se allegations (see People v. Krankel, 102 Ill. 2d 181(1984)). The trial court denied both motions and then sentenced defendant to a 30-year prison
term for aggravated criminal sexual assault, to run consecutively to the remaining concurrent
sentences of 4 years for each conviction of criminal sexual assault and 5 years for each conviction
of aggravated criminal sexual abuse. Defendant appealed. The trial court appointed the Office of
the State Appellate Defender to represent him. Appellate counsel moved to withdraw because
there were no arguably meritorious issues on appeal. See Anders v. California, 386 U.S. 738(1967); People v. Jones, 38 Ill. 2d 384 (1967). We granted the motion and affirmed the judgment.
People v. Tate, 2015 IL App (2d) 130733-U.
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2021 IL App (2d) 190670-U¶5 In 2016, defendant filed a pro se petition for relief under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2016)), raising numerous claims of ineffective assistance
of trial and appellate counsel and various trial errors. The trial court appointed the public defender,
who withdrew. The court appointed Daniel Transier (hereinafter “postconviction counsel”) as
conflict counsel. In 2017, Transier filed a “supplemental” postconviction petition raising several
additional claims and also stated that he was adopting defendant’s pro se claims. On June 14,
2019, the State moved to dismiss the combined pro se and supplemental petitions. At a hearing
on October 15, 2019, the State contended in part that defendant had no right to hybrid
representation.
¶6 On November 12, 2020, however, postconviction counsel filed an amended postconviction
petition raising claims of (1) ineffective assistance of trial counsel in a variety of respects;
(2) ineffective assistance of counsel on direct appeal, and (3) several violations of due process
during the trial and after sentencing. We shall detail these claims in our discussion below.
¶7 On April 12, 2021, defendant filed a pro se “revised petition.” The State moved to strike
the revised petition, contending that defendant could not both have counsel and proceed pro se.
On June 9, 2021, defendant’s case was reassigned from Judge Robbin Stuckert to Judge Joseph C.
Pedersen, due to Judge Stuckert’s recent retirement. On October 15, 2021, the trial court
essentially agreed with the State’s motion to strike the revised petition. The court gave defendant
a choice between (1) retaining postconviction counsel and limiting the proceeding to the amended
petition and (2) discharging counsel and proceeding pro se. Defendant chose the former.
¶8 On January 4, 2022, on the State’s motion, the trial court dismissed the amended petition.
Defendant timely appealed.
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2021 IL App (2d) 190670-U¶9 Per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63(1993), the appellate defender moves to withdraw as counsel. In her motion, counsel states that
she read the record and found no issue of arguable merit. Counsel further states that she advised
defendant of her opinion. Counsel supports her motion with a memorandum of law providing a
statement of facts, a list of potential issues, and arguments why those issues lack arguable merit.
We advised defendant that he had 30 days to respond to the motion. Defendant has responded.
¶ 10 II. ANALYSIS
¶ 11 On appeal, counsel suggests six potential issues with numerous sub issues: (1) whether
defendant’s trial counsel was ineffective for (a) failing to object to allegedly incomplete jury
instructions on the terms “sexual conduct,” “sexual penetration,” and “family member”; (b) failing
to request a jury instruction on the requisite mental state of knowledge or intent for offenses
allegedly committed by force or the threat of force; (c) requesting that the court provide the
indictment to the jury during its deliberations; (d) failing to investigate letters K.R. allegedly wrote
that praised defendant, as these letters could have been used for impeachment at trial; (e) failing
to consult with a DNA expert; (f) failing to consult with an expert on the variety of ways a woman
may become pregnant; (g) being inattentive and chewing on a pen at trial; (h) failing to investigate
whether the State had not disclosed exculpatory evidence to the defense (see Brady v. Maryland,
373 U.S. 83 (1963)); (i) failing to file motions to compel the State to provide specific times and
dates for the charged offenses; and (j) failing to review discovery with defendant before trial,
prepare him to testify at trial, or investigate and call potential defense witnesses; (2) whether
appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel;
(3) whether defendant’s original postconviction attorney failed to fulfill his duties to defendant;
(4) whether defendant was denied due process at his trial when jurors saw him being transported
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2021 IL App (2d) 190670-Uin the back of a marked police car; (5) whether defendant was denied due process when, after trial
and sentencing, the State moved to dismiss some of the charges; and (6) whether postconviction
counsel failed to provide reasonable assistance in that he did not support several conclusional
claims in the amended postconviction petition. However, counsel concludes that none of these
claims has arguable merit. Defendant has filed a lengthy response that includes both (1) cognizable
arguments against counsel’s motion to withdraw and (2) legally irrelevant matters, matters outside
the record, personal attacks on several people, and, finally, some portions that are simply
incomprehensible.
¶ 12 We explain why we agree with appellate counsel that none of the potential issues on appeal
have arguable merit. In the course of doing so, we shall address defendant’s arguments to the
contrary as regards each claim, but we shall disregard matters in his response that are legally
irrelevant, not based on the record, or incomprehensible.
¶ 13 First, we set out the basic principles of review. To survive a motion to dismiss, a
postconviction petition must make a substantial showing of a constitutional violation. People v.
Coleman, 183 Ill. 2d 366, 381 (1998). In assessing whether the petition has done so, the trial court
must accept all well-pleaded factual allegations and any accompanying affidavits as true unless
they are refuted by the record. People v. Domagala, 2013 IL 113688, ¶ 35. However, nonfactual
and nonspecific assertions that merely amount to conclusions are not sufficient to require a hearing
under the Act. People v. West, 187 Ill. 2d 418, 425-26 (2010). Claims that were raised and decided
on direct review are barred by res judicata; claims that could have been raised on direct review,
but were not, are forfeited. People v. Taylor, 237 Ill. 2d 356, 372 (2010). Our review is de novo.
West, 187 Ill. 2d at 426.
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2021 IL App (2d) 190670-U¶ 14 We start with the allegations of ineffective assistance of trial counsel. To establish
ineffective assistance, a defendant must show that (1) counsel’s performance was objectively
unreasonable and (2) it is reasonably probable that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland v. Washington, 46 U.S. 668, 688,
694 (1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984).
¶ 15 Counsel first addresses the claim that defendant’s trial counsel was ineffective for failing
to object to allegedly incomplete jury instructions on the terms “sexual conduct,” “sexual
penetration,” and “family member.” The amended petition contended that the definitions that the
jury received were Illinois pattern instructions with some verbiage omitted. Counsel notes that the
instructions excluded only portions of the definitions that were irrelevant to the facts of defendant’s
case. For example, the definition of “sexual conduct,” which was given in regard to the charges
alleging that defendant committed aggravated sexual abuse by touching the breast of the victim,
tracked the pattern instruction but omitted the bracketed words “sex organ” and “anus.” See
Illinois Pattern Jury Instructions, Criminal, No. 11.65D (4th ed. 2000). Counsel reasons that trial
counsel did not perform unreasonably and that defendant could not have been prejudiced by the
omission of the uncharged bases for findings of guilt. We agree.
¶ 16 In his response, defendant appears to argue, here and elsewhere, that by filing a motion to
dismiss the amended petition, the State conceded the merits of his claim. This is mistaken;
defendant confuses the admission of well-pleaded facts with the admission of legal conclusions.
¶ 17 Counsel addresses next the claim that trial counsel was ineffective for failing to request
instructions for the mental state required for the charges that alleged he used force or the threat of
force. Counsel notes first that the State nol-prossed all of the charges that were based on the use
or threat of force. Thus, requesting an instruction on mental state would have made no sense in
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2021 IL App (2d) 190670-Uthis context, and the absence of such an instruction caused no prejudice. Counsel notes second
that, as to the offenses for which defendant was actually tried, instructions on the specific
applicable mental state are not required. See People v. Simms, 192 Ill. 2d 348, 376 (2000)
(aggravated criminal sexual assault). The reason is that proof that the defendant performed the act
necessarily implies that he intended to perform it, as that mental state almost always accompanies
the prohibited act. Id. at 375-76; see People v. Burton, 201 Ill. App. 3d 116, 122 (1990). Thus,
counsel concludes, trial counsel neither performed unreasonably nor prejudiced defendant by
refusing to request an instruction that was not required and would have been superfluous. We
agree.
¶ 18 Defendant responds that, because he was not charged with strict liability offenses, he was
entitled to the instruction on the required mental state for each offense. The case law that we have
cited demonstrates that defendant’s conclusion does not flow from his premise.
¶ 19 Counsel next addresses the claim that trial counsel was ineffective for requesting that the
court provide a copy of the indictment to the jurors to consider during deliberations. Counsel notes
that trial counsel’s strategy included emphasizing that, although the charges were differentiated by
specific time frames (generally different months), K.R. did not testify that any given act by
defendant occurred at a specific time. In making his request, trial counsel explained to the court
that he wanted to ensure that the jury was aware that most charges were tied to a specific window
of time, even though the verdict forms did not distinguish them in this way. For example, although
the indictment specified that each of the six charges of aggravated criminal sexual abuse alleged
conduct that occurred within a particular month (October 2009, November 2009, etc.), the six
pertinent pairs of verdict forms referred only to “aggravated criminal sexual abuse.” Thus, trial
counsel hoped that reading the indictment would remind the jurors that proof of each count
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2021 IL App (2d) 190670-Urequired not only proof of the act but also proof that it happened within a given time window; this
was consistent with counsel’s strategy of emphasizing that K.R. could not give any specific dates
for the alleged acts. Counsel asserts that this was a reasonable strategy designed to promote the
chance of acquittals on at least some of the charges. Thus, she concludes, this claim of
ineffectiveness lacks arguable merit. We agree.
¶ 20 In his response, defendant contends that the indictment was never introduced into evidence.
However, this fact is wholly irrelevant to the issue of counsel’s alleged ineffectiveness. He also
contends that the indictment was void, but we find his argument unsupported by coherent
reasoning of any kind.
¶ 21 Counsel considers next the claim that trial counsel was ineffective for failing to investigate
letters that K.R. allegedly wrote to her biological father, praising defendant. The amended petition
asserted generally that these letters could have been used to impeach K.R. at trial. Counsel
observes that the amended petition did not (1) attach any of the alleged letters or an affidavit as to
their content or (2) even allege when the letters were written or their specific content. Counsel
reasons that such speculative and vague allegations do not make a substantial showing of either
unreasonable performance or prejudice. We agree.
¶ 22 In his response, defendant reasserts his claim that the letters would have helped his defense,
but he provides none of the evidentiary support that was lacking in the amended petition (and, in
any event, it would be too late to do so now.) Defendant does not respond directly to counsel’s
arguments.
¶ 23 Counsel next addresses the amended petition’s claim that trial counsel was ineffective for
failing to move for the appointment of a DNA expert for defendant, who could have found flaws
in the State’s DNA evidence. Counsel notes that the amended petition attached no affidavits or
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2021 IL App (2d) 190670-Uother evidence to support this speculation. Moreover, at the Krankel hearing, the trial court
determined that there were no deficiencies in the DNA evidence. On appeal, we agreed with
counsel that the challenge to the DNA evidence would have been frivolous. The amended petition
raised nothing but hope. We agree with counsel that it would be frivolous to argue that this specific
claim made a substantial showing of ineffective assistance.
¶ 24 In his response, defendant argues that he needed a DNA expert to rebut the State’s DNA
experts, but he offers no affidavits or other evidence that any expert would have found flaws in the
State’s expert testimony.
¶ 25 Counsel next addresses the amended petition’s claim that trial counsel was ineffective
because he “never consulted medical experts regarding the variety of way [sic] a woman can
become pregnant.” We note that this claim can be understood only in the context of the trial and
defendant’s strategy. At trial, defendant essentially admitted that he was the father of K.R.’s baby
(a concession all but necessitated by the DNA evidence), but he contended that this did not prove
that he had had sexual intercourse with K.R. To support his theory, defendant testified that, on
Valentine’s Day 2010, about nine months before K.R. gave birth, he and Cynthia T. had sexual
intercourse and, shortly afterward, K.R. found and put on Cynthia’s semen-stained underwear.
¶ 26 Counsel notes the obvious infirmities in this claim. The amended petition based the claim
on pure speculation, with no evidence that any such expert existed or, indeed, that there was any
scientific support for defendant’s novel theory. We agree with counsel that this claim did not make
a substantial showing of a constitutional violation.
¶ 27 In his response, defendant contends that the State’s DNA evidence was insufficient because
the State never gave his sample a “unique identifier.” He also makes unsupported allegations
about what Cynthia T. told him in telephone conversations after he was jailed on the present
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2021 IL App (2d) 190670-Ucharges. (These conversations were mentioned in the pro se petition but not in the amended
petition, which is the actual subject of this appeal.) Defendant’s rambling discussion of this issue
does not respond to counsel’s observations of the obvious infirmities in contending that trial
counsel should have consulted an expert on how a woman can become pregnant.
¶ 28 Counsel next addresses the amended petition’s claim that trial counsel was ineffective for
being inattentive at times during trial and chewing on a pen. Counsel observes that, at the Krankel
hearing, the trial court heard the same claim and found that it had no merit. Thus, as counsel
concludes, this claim is barred by res judicata. We agree.
¶ 29 In his response, defendant contends that postconviction counsel failed to interview people,
such as jurors and the court reporter, who might have substantiated this claim. Certainly, the
amended petition provided no evidentiary support for this claim. However, this does not mean
that postconviction counsel did not make reasonable efforts to investigate the claim. As counsel
notes, a trial court, in ruling upon a motion to dismiss a postconviction petition that counsel has
not supported by affidavits or other documents, “may reasonably presume that post-conviction
counsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but
was unable to do so.” People v. Johnson, 154 Ill. 2d 227, 241 (1993). Defendant now offers only
speculation that anyone would have corroborated his claim. But postconviction counsel’s duties
do not include “bolstering every claim presented in a petitioner’s pro se post-conviction petition,
regardless of its legal merit.” People v. Custer, 2019 IL 123339, ¶ 38. Finally, defendant does not
respond to counsel’s statement that this issue is barred by res judicata.
¶ 30 Counsel next addresses the amended petition’s claim that trial counsel was ineffective for
failing to investigate any Brady violations. Counsel notes that, like so many other claims in the
amended petition, this claim was purely conclusional: no facts were pleaded even to suggest
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2021 IL App (2d) 190670-Upossible Brady violations, much less to identify specific exculpatory or impeaching evidence or
any possible prejudice. Thus, counsel concludes, this claim was wholly insufficient to make a
substantial showing of a constitutional violation. We agree.
¶ 31 In his response, defendant contends that postconviction counsel failed to fulfill his duties
by supporting the claim with specific evidence of Brady violations. However, defendant’s
argument presupposes that such evidence actually existed, even though he never produced any in
his pro se petition and apparently supplied none to postconviction counsel. As we explained in
our discussion of the previous issue, postconviction counsel was not obligated to bolster a meritless
claim, and his Rule 651(c) certificate raised the presumption, which defendant has not rebutted,
that he attempted to obtain evidentiary support for the claim but was unable to do so.
¶ 32 Counsel next addresses the amended petition’s claim that trial counsel was ineffective for
failing to file motions to compel the State to provide specific dates, times, and locations for each
alleged act underlying a charged offense. Counsel notes that these specifics were not elements of
the offenses and the State did not need to prove them at trial. See People v. Letcher, 386 Ill. App.
3d 327, 331-32 (2008). We note that, because K.R.’s testimony did not include specific dates and
times, it is unclear what trial counsel could have gained by moving to require the State to provide
such specific facts before trial. Apparently, they were simply unknown. In any event, we agree
with counsel that this claim does not make a substantial showing of either deficient performance
or prejudice.
¶ 33 In his response, defendant contends that the State’s failure to provide specific times and
dates rendered the indictment void. There is no legal support for this theory.
¶ 34 Counsel next addresses the amended petition’s claim that trial counsel was ineffective for
failing (1) to review discovery with him, (2) to prepare him to testify at trial, and (3) to investigate
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2021 IL App (2d) 190670-Uor call (unspecified) witnesses. Counsel observes that points (1) and (2) are barred by res judicata,
as they were raised during the Krankel hearing and decided adversely to defendant. Counsel
observes further that (3) is unsupported by any specific allegation as to whom he wanted counsel
to investigate and call or what their testimony would have been; thus, the claim was meritless (see
People v. Moore, 189 Ill. 2d 521, 542 (2000)). We agree.
¶ 35 In his response, defendant contends that some of the witnesses were identified in his pro se
petition. But this appeal is from the dismissal of the amended petition at the second stage of the
proceedings, after defendant told the court that he was relying on postconviction counsel’s
representation. Moreover, defendant did not attach to his pro se petition any affidavits or other
evidence in support of any claim that trial counsel was ineffective in declining to call these
witnesses.
¶ 36 In sum, we agree with counsel that it would be frivolous to argue that the trial court erred
in dismissing the amended petition’s claims of ineffective assistance of trial counsel.
¶ 37 We turn to the amended petition’s claim that defendant’s counsel on direct appeal was
ineffective for failing to argue that trial counsel rendered ineffective assistance. Claims of
appellate counsel’s ineffectiveness are governed by the two-pronged Strickland test of deficient
performance and prejudice. People v. Smith, 195 Ill. 2d 179, 187-88 (2000). Counsel notes that it
is not deficient performance for appellate counsel to decline to raise an argument that he or she
believes to be without merit, unless counsel’s appraisal of the merits is patently wrong. People v.
Barnard, 104 Ill. 2d 218, 230-31(1984). Moreover, unless an issue is meritorious, no prejudice
results from appellate counsel’s failure or refusal to raise it. Smith, 195 Ill. 2d at 190. We have
agreed with counsel that there are no sound bases for asserting trial counsel’s ineffectiveness.
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2021 IL App (2d) 190670-UThus, there is no nonfrivolous argument that the trial court erred in dismissing the claim that
appellate counsel was ineffective.
¶ 38 In his response, defendant asserts summarily that appellate counsel failed to investigate all
of the claims he raised in response to the Anders motion and also failed to raise other claims that
defendant raised in his pro se postconviction petition. Defendant offers nothing to convince us of
a potential basis for asserting appellate counsel’s ineffectiveness.
¶ 39 Counsel next addresses the amended petition’s claim that defendant’s originally appointed
postconviction counsel performed deficiently by failing to fulfill various duties. Counsel observes
that defendant’s original postconviction attorney was replaced by Transier, who represented
defendant fully, amended the original petition, and filed a certificate per Illinois Supreme Court
Rule 651(c) (eff. July 1, 2017) stating that he complied with his duties. Counsel also notes that
the amended petition specified neither what original postconviction counsel should have done nor
what prejudice defendant suffered. We agree with counsel that there is no nonfrivolous argument
that the trial court erred in holding that this claim did not make a substantial showing of a
constitutional violation.
¶ 40 In his response, defendant notes that original postconviction counsel told him that his
pro se petition had viable claims and that he should obtain conflict counsel. The pertinence of
these assertions to anything at issue in this appeal is simply unclear.
¶ 41 Counsel next addresses the amended petition’s claim that defendant was denied his right
to a fair and impartial trial when some jurors saw him being transported in a marked police car.
Counsel observes first that, because this alleged error was never raised at trial or on appeal, it was
forfeited. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (The amended petition did not contend
that trial counsel was ineffective for failing to raise the issue.) Further, counsel observes that the
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2021 IL App (2d) 190670-Uclaim was conclusional and established no basis for finding reversible error. See People v.
O’Toole, 226 Ill. App. 3d 974, 985 (1992) (jurors’ accidental viewing of restrained defendant was
not reversible error without an affirmative showing of prejudice); People v. Greene, 102 Ill. App.
3d 933, 936 (1981) (same). We agree with counsel that there is no nonfrivolous argument that the
trial court erred by holding that this claim did not make a substantial showing of a constitutional
violation.
¶ 42 In his response, defendant makes numerous allegations of fact that have no support in the
trial record or in any affidavits or other evidence from the postconviction proceeding. Defendant
does not recognize that a response to a Finley motion is not a proper venue in which to start
litigating a claim of trial error that was never raised before.
¶ 43 Counsel next addresses the amended petition’s claim that defendant was denied due
process when, after trial and sentencing, the State moved to dismiss two counts on which he had
been sentenced in addition to other counts on which he was never tried because the State had
sought to dismiss them before trial. The amended petition alleged, with no citation to authority or
legal argument, that the State’s allegedly tardy motion to dismiss the two counts divested the trial
court of jurisdiction over defendant and therefore required his immediate release. We agree with
counsel that the claim does not allege a deprivation of due process or any prejudice to defendant
from the tardy motion to dismiss and that there is no legal basis to suggest that the action divested
the trial court of jurisdiction over defendant. Thus, there is no nonfrivolous argument that the
court erred in holding that this claim made no substantial showing of a constitutional violation.
¶ 44 In his response, defendant notes some general principles of law, but these have no bearing
on this potential issue. He also repeats arguments on other potential issues with which we have
already dealt. He also contends, with no support, that the trial court acted in collusion with the
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2021 IL App (2d) 190670-Uprosecutor to some nefarious end. Whatever substance there might be to this assertion, it is not
before us now.
¶ 45 Finally, counsel addresses whether postconviction counsel denied defendant his right under
the Act to reasonable representation (see People v. Perkins, 229 Ill. 2d 34, 42 (2007)) by failing to
support any of the conclusional claims in the amended petition with necessary details or evidence.
Counsel notes that, under Rule 651(c), postconviction counsel’s duties include making any
amendments to the petition necessary for an adequate presentation of the petitioner’s contentions.
Counsel notes further that postconviction counsel’s Rule 651(c) certificate created a rebuttable
presumption that he provided reasonable assistance. See People v. Jones, 2011 IL App (1st)
092529, ¶ 23. As noted earlier, counsel’s duties do not include “bolstering every claim presented
in a petitioner’s pro se post-conviction petition, regardless of its legal merit” (Custer, 2019 IL
123339, ¶ 38), and a trial court, in ruling upon a motion to dismiss a postconviction petition that
counsel has not supported by affidavits or other documents, “may reasonably presume that post-
conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction
claims, but was unable to do so” (Johnson, 154 Ill. 2d at 241).
¶ 46 Counsel concludes that the presumption in favor of postconviction counsel’s performance
has not been rebutted. She notes that, at the Krankel hearing, defendant suggested no supporting
evidence for many of his conclusional claims, some of which ended up in the amended petition.
Thus, defendant cannot now claim that postconviction counsel violated his duties by not actively
searching outside the record for evidence that might support general claims raised in a
postconviction petition. See Johnson, 154 Ill. 2d at 247-48.
¶ 47 Counsel also states that she has examined the claims that defendant made in his original
pro se petition and has found no basis on which to argue that the exclusion of some of those claims
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2021 IL App (2d) 190670-Ufrom the amended petition was unreasonable or prejudicial. We have examined those excluded
claims and agree with counsel.
¶ 48 Defendant does not directly respond to counsel on this point. In any event, as this appeal
is from the dismissal of the amended postconviction petition at the second stage of proceedings,
any issues raised in the superseded pro se petition are irrelevant here.
¶ 49 After examining the record, the motion to withdraw, the memorandum of law, and
defendant’s response, we agree with counsel that this appeal presents no issue of arguable merit.
Thus, we grant the motion to withdraw and affirm the judgment of the trial court.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.
¶ 52 Affirmed.
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