People v. Turner

2023 IL App (1st) 191503No. 1-19-1503
Opinion filed March 27, 2023.
First Division
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 24881
)
DEVOIS TURNER, ) The Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justice Coghlan concurred in the judgment and opinion.
Justice Pucinski dissented, with opinion.
OPINION
¶1 Defendant Devois Turner appeals from the trial court’s order granting the State’s motion
to dismiss his petition filed under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1
et seq. (West 2018). On appeal, defendant asserts that postconviction counsel failed to provide
reasonable assistance. For the following reasons, we affirm the trial court’s judgment.
No. 1-19-1503
¶2 I. BACKGROUND
¶3 A. Trial
¶4 Defendant was charged with the first degree murder of 87-year-old Joe Miller, as well as
home invasion, armed robbery, and residential burglary. Defendant’s girlfriend, Malia Nelson,
was charged as an accomplice and subsequently agreed to testify against him pursuant to a plea
agreement.
¶5 Briefly stated, Nelson, who was serving a 17-year prison term for this offense, testified
that on the day in question, Miller was living in a senior citizen apartment near 13th Street and
Harding Avenue. She and Miller were friends, but their relationship was “semi-sexual.” She was
unemployed and would clean his apartment or have sex with him for money. In addition, Nelson
knew that Miller kept money and a gun in a locked cabinet in his bedroom. About one month
before this incident, she had taken the cabinet keys and approximately $3500, while he slept.
¶6 On September 22, 2017, Nelson and defendant, whom she was dating at the time,
discussed a plan to steal money from Miller to buy drugs, but ultimately agreed that Nelson
would simply ask Miller for the money. Defendant, against Nelson’s wishes, wanted to
accompany her in case they needed to scare Miller. When Nelson ultimately told defendant she
had changed her mind, he accused her of trying to hide something and dragged her toward
Miller’s building, where she reiterated that she would “handle this by [her]self.” Defendant,
however, forcibly accompanied her inside. She signed into the visitors log as “L. Lewis.”
¶7 When the pair arrived at Miller’s apartment, he initially told Nelson to return the
following day but then allowed her to use the bathroom. Afterward, Nelson saw defendant
standing behind Miller, who was sitting in a chair. Defendant had one arm around Miller’s neck
and held a gun to the right of it. Nelson asked what defendant was doing but he told her to “shut
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the fuck up, [and] let [him] handle it.” Upon defendant’s inquiry, Miller said he had no money in
the apartment. A struggle then ensued. In addition, defendant directed Nelson to look for Miller’s
money. Unable to find the key to the cabinet, Nelson unsuccessfully tried to open the cabinet
with a kitchen knife, cutting herself in the process. Miller, sounding frightened, called her name
during this time.
¶8 In the kitchen, Nelson saw defendant force Miller to the floor. Miller’s eyes were closed,
and he was unresponsive when Nelson shook him. Although Nelson thought that he was dead,
defendant said he would be fine and ordered Nelson to bind his hands, threatening to shoot
Nelson if she did not. Nelson did so with a phone cord and subsequently gained entry to the
cabinet. She later learned that defendant had taken money, a gun, and a Crown Royal bag filled
with coins. They used the money to buy drugs and, two weeks later, defendant sold the gun for
$150. Nelson acknowledged that she had a 25-year history of substance abuse, had used cocaine
on the day in question and had seven prior narcotics convictions.
¶9 Leroy Miller, the victim’s son, testified that after being unable to reach his father, a
security guard let him into the apartment, where his father lay dead on the kitchen floor with his
hands bound above his head. He later recognized Nelson from surveillance footage, although he
could not remember her name. He also discovered that some coins and a handgun were missing
from the cabinet.
¶ 10 The police confirmed that the logbook was signed by “L. Lewis” and “M. Partee.” In
addition, the police learned Nelson’s name and arrested her. Miller’s son identified her from a
lineup, and her DNA was found on the phone cord, as well as on three of the four knives
recovered from the apartment. After interviewing Nelson, the police were looking for defendant,
who was arrested the following day. He gave a videotaped interview discussing the events
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culminating in Miller’s death and claimed that the robbery was Nelson’s idea. He denied that he
used a weapon against Miller or that Miller struggled. Furthermore, Miller was alive when
defendant left.
¶ 11 Dr. Valerie Arangelovich, a pathologist, opined that Miller died from stress due to
restraint and robbery but identified coronary atherosclerosis as a contributing factor. She ruled
his death a homicide.
¶ 12 The defense presented no witnesses and defendant chose not to testify. Upon the court’s
inquiry, defendant confirmed his understanding that he had a right to testify and that, after
speaking with his attorneys, he did not want to do so. Defendant also confirmed that no one was
forcing or coercing him not to testify and that he was exercising his own free will.
¶ 13 The jury found defendant guilty of first degree murder and he was sentenced to 27 years
in prison.
¶ 14 B. Direct Appeal
¶ 15 On direct appeal, we rejected defendant’s assertions that the trial court erred by declining
to provide a jury instruction on the lesser offense of involuntary manslaughter and by denying
his request to provide the jury with his proposed non-pattern jury instruction regarding his
addiction to narcotics. We corrected the mittimus to reflect the correct amount of presentencing
custody credit. People v. Turner, 2013 IL App (1st) 111716-U.
¶ 16 C. Postconviction Proceedings
¶ 17 On August 22, 2014, defendant filed a pro se postconviction petition, asserting, among
other things, that trial counsel was ineffective for not “basing a defense on her own reasonable
investigation,” but, instead, relying “exclusively on cross-examination of State witnesses to
discredit the State’s case.” In addition, counsel “impede[d]” his right to testify. Defendant
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“repeatedly told his defense counsel that he wanted to testify as to his version of what
happened,” but counsel threatened to withdraw if he did, stating that his testimony would be
viewed as “self-serving and harmful to the defense.” Furthermore, counsel did not heed
defendant’s request to negotiate an agreement for him to plead guilty to second degree murder.
Instead, counsel said the court would not allow him to plead guilty to that offense. Appellate
counsel was ineffective for failing to raise those claims on direct appeal.
¶ 18 The trial court then appointed postconviction counsel, who subsequently filed a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Jul. 1, 2017). Counsel certified
that (1) he consulted with defendant “by phone, mail, electronics means or in person to ascertain
his contentions of deprivations of constitutional rights,” (2) he “obtained and examined the
record of proceedings at the trial and sentencing in this case,” and (3) he did not prepare a
supplemental postconviction petition “as the petitioner’s previously-filed pro se petition for post-
conviction relief adequately sets forth the petitioner’s claims of deprivation of his constitutional
rights.”
¶ 19 The State moved to dismiss, arguing that defendant’s ineffective assistance of counsel
claims were meritless. Specifically, trial counsel’s decision not to present evidence was a matter
of strategy, and the record rebutted defendant’s claim that trial counsel impeded his desire to
testify. Defendant also failed to show that the result of the proceeding would have been different.
Furthermore, defendant failed to provide any affidavit or supporting documents showing that
counsel did not attempt to negotiate a lesser charge.
¶ 20 At a hearing on the parties’ pleadings, postconviction counsel argued that while the trial
court had admonished defendant about his right to testify, the colloquy between the court and
defendant did “not in any way capture the intimidation that existed at the time of that
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proceeding.” In addition, “when you look at that issue that he raised and combination with others
he’s raised, he’s, in effect, saying that he was intimidated by this trial counsel.” When the
postconviction court asked for proof of this intimidation, counsel argued, “Well, it’s inferred,
Judge, in a s[e]nce that in his pleadings he said that he was [sic] prudently asked his lawyer to
testify. His lawyer continued to sho[o]t him down.” Counsel advocated for a third stage hearing
to “really get to the bottom of it.”
¶ 21 The trial court granted the State’s motion to dismiss. First, the court found that defendant
failed to make a substantial showing to rebut the presumption that trial counsel’s decisions were
a matter of valid strategy. In addition, he did “not show or even allege the existence of any
specific evidence his counsel failed to discover.” The court further found that the record rebutted
defendant’s claim that trial counsel did not allow him to testify. In any event, defendant failed to
state what his testimony would have been, and the jury saw defendant’s videotaped statements in
which he admitted to his involvement in the robbery, notwithstanding that his statements had
minimized his involvement. Moreover, defendant had no constitutional right to a plea bargain,
and there was no evidence that the State made an offer, that defendant would have accepted one,
or that the trial court would have concurred.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant solely assertsthat he did not receive the reasonable assistance of
postconviction counsel. He attacks postconviction counsel’s decision not to amend and support
his claims that trial counsel failed to engage in plea negotiations, impeded his right to testify, and
failed to present a defense based on counsel’s own investigation. We review this issue de novo.
People v. Profit, 2012 IL App (1st) 101307, ¶ 17.
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¶ 24 The Act provides a collateral means for a defendant to challenge a conviction or sentence
for a violation of a constitutional right. People v. Jones, 211 Ill. 2d 140, 143 (2004). At the
second stage of postconviction proceedings, the trial court must determine whether the petition
and accompanying documentation make a substantial showing of a constitutional violation.
People v. Cotto, 2016 IL 119006, ¶ 28. Postconviction counsel may amend the petition, and the
State may move to dismiss it. Id. ¶ 27 (citing 725 ILCS 5/122-4, 122-5 (West 2010)).
¶ 25 The Act provides for a “reasonable” level of assistance from counsel. People v.
Pendleton, 223 Ill. 2d 458, 472 (2006). To assure reasonable assistance, Rule 651(c) imposes
specific duties on postconviction counsel. People v. Turner, 187 Ill. 2d 406, 410 (1999). The
rule’s primary purpose is to ensure that counsel shapes the petition’s claims into proper legal
form and presents them to the court. People v. Kuehner, 2015 IL 117695, ¶ 20.
¶ 26 To that end, Rule 651(c) states that the record
“shall contain a showing, which may be made by the certificate of petitioner’s attorney,
that [1] 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, [2] has
examined the record of the proceedings at the trial, and [3] has made any amendments to
the petitions filed pro se that are necessary for an adequate presentation of petitioner’s
contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
The filing of a Rule 651(c) certificate creates a rebuttable presumption that postconviction
counsel provided the defendant with reasonable assistance. People v. Collins, 2021 IL App (1st)
170597, ¶ 31. Additionally, the certificate is counsel’s official representation to the court that he
has fulfilled the duties listed therein. People v. Perkins, 229 Ill. 2d 34, 50 (2007). If
postconviction counsel files a certificate, “[i]t is defendant’s burden to overcome this
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presumption by demonstrating his attorney’s failure to substantially comply with the duties
mandated by Rule 651(c).” Profit, 2012 IL App (1st) 101307, ¶ 19.
¶ 27 In this case, postconviction counsel filed a Rule 651(c) certificate, creating a presumption
that defendant received reasonable assistance. Accordingly, it is incumbent upon defendant to
rebut this presumption.
¶ 28 A. Plea Bargaining
¶ 29 First, we address defendant’s assertion that postconviction counsel failed to file an
affidavit to better explain the basis of defendant’s claim that trial counsel disregarded his request
to engage in plea bargaining for a lesser second degree murder conviction.
¶ 30 Postconviction counsel is required to investigate and properly present the defendant’s
claims. People v. Davis, 156 Ill. 2d 149, 164 (1993). That being said, not every petition can be
amended to set forth a substantial constitutional claim. People v. Bass, 2018 IL App (1st) 152650,
¶ 16. If amendments would only further a frivolous or meritless claim, the amendments are not
“necessary” within the meaning of Rule 651(c). People v. Greer, 212 Ill. 2d 192, 205 (2004).
Furthermore, while counsel may raise additional issues, he is not required to do so. Pendleton, 223
Ill. 2d at 476.
¶ 31 Here, the pro se petition claimed that trial counsel repeatedly refused “to get together
with the State’s Attorney” to discuss a plea to second degree murder. Thus, the petition clearly
conveyed that there were no plea discussions. Defendant now asserts, however, that his petition
“failed to reveal whether a plea was offered or other outside-plea bargaining circumstances.”
Notwithstanding our liberal reading of defendant’s petition, the petition did not include an
allegation that the State made a plea offer, that trial counsel prevented defendant from accepting
one, or that plea bargaining had ensued at all. Postconviction counsel was not required to raise
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this additional contention either, particularly considering that it contradicts the claim that
defendant’s petition did raise. Id. Moreover, defendant has not otherwise demonstrated that
counsel was unreasonable for failing to amend this claim or attach supporting documentation.
¶ 32 A defendant has no constitutional right to be offered the opportunity to plea bargain
(People v. Palmer, 162 Ill. 2d 465, 476-77 (1994)), although his right to the effective assistance
of counsel does apply to aspects of the plea-bargaining process (Hill v. Lockhart, 474 U.S. 52,
56-57 (1985)). In addition, even where trial counsel’s performance was deficient with respect to
plea bargaining, a defendant must still demonstrate prejudice. People v. Hatchett, 2015 IL App
(1st) 130127, ¶ 36. Furthermore, a “defendant cannot claim prejudice from defense counsel’s
failure to extract an offer from the State.” Id. ¶ 37.
¶ 33 Here, defendant’s claim that postconviction counsel was unreasonable is as speculative as
his claim that trial counsel was ineffective for failing to negotiate a plea agreement. Even now,
defendant does not affirmatively represent that the State made an offer, and we cannot speculate
that the State would have been willing to enter into a plea agreement in this case. See, e.g.,
Palmer, 162 Ill. 2d at 481. Furthermore, defendant has not explained how trial counsel could
have negotiated a plea to second degree murder under these facts. See People v. Hayes, 2022 IL
App (4th) 210409, ¶ 55 (stating that second degree murder requires that the individual
committing first degree murder (1) is acting under a sudden, intense passion due to serious
provocation by the victim or (2) subjectively, but unreasonably, believes circumstances justify
the use of self-defense). Because no amendment or affidavit could have rendered this claim
meritorious, postconviction counsel cannot be expected to have done more.
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¶ 34 B. Right to Testify
¶ 35 Next, we reject defendant’s assertion that postconviction counsel provided unreasonable
assistance by raising a new claim at the hearing on his petition without amending the petition to
include that claim. In his petition, defendant alleged that trial counsel “impede[d]” his decision
whether to testify. At the hearing on the petition, however, postconviction counsel argued that
trial counsel “intimidated” defendant out of testifying. This argument was not a new claim. On
the contrary, the petition’s allegation that trial counsel “impede[d]” his decision would certainly
encompass counsel’s alleged act of “intimidating” defendant. We decline to split hairs.
¶ 36 Defendant observes that when postconviction counsel argued defendant had been
“intimidated,” the court responded, “Where do I have proof of that? Where is there a showing?”
Yet, the court’s remarks do not show that it did not understand this claim to have been raised in
the petition. Instead, they show that the court found the claim to be unsubstantiated, a finding
that defendant does not dispute on appeal. Because counsel’s oral argument did not raise a new
claim, no amendment was necessary.
¶ 37 Defendant also faults postconviction counsel for not amending the petition to provide
additional detail or supporting documentation with respect to defendant’s decision not to testify.
He argues that this assertion, like other claims in his petition, was fatally vague, in improper
form, and not supported by any evidence. Indeed, the pro se petition did not set forth the details
of his potential testimony. Yet, we reiterate that not every petition can be amended to set forth a
substantial constitutional claim. Bass, 2018 IL App (1st) 152650, ¶ 16. If amendments would
only further a frivolous or meritless claim, then the amendments are not “necessary” within the
meaning of Rule 651(c). Greer, 212 Ill. 2d at 205.
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¶ 38 Defendant contends that he could have provided postconviction counsel with an affidavit.
It does not follow, however, that defendant’s affidavit would have actually supported his claim
that trial counsel intimidated him or otherwise interfered with his right to testify; rather,
discussions between defendant and postconviction counsel may have painted a different picture.
In addition, postconviction counsel may have learned that defendant’s proposed testimony would
have harmed his case. Nothing in the record negates these possibilities. See Perkins, 229 Ill. 2d
at 52 (while an attorney’s Rule 651(c) certificate can be rebutted, “nothing in the record on
appeal contradicts counsel’s certificate asserting that there were no amendments necessary for
adequate presentation of petitioner’s claims”). Moreover, providing an affidavit from defendant,
setting forth substantive details regarding his account of the offense, cannot be considered a
routine amendment. Cf. Turner, 187 Ill. 2d at 413 (finding that counsel failed to amend the
petition to allege ineffective assistance of appellate counsel, which would have prevented the
defendant’s claims from being waived). Accordingly, defendant has not rebutted the presumption
that postconviction counsel provided reasonable assistance.
¶ 39 C. Investigation and Defense
¶ 40 Defendant further faults postconviction counsel for not supporting his claim that trial
counsel failed to conduct a reasonable investigation and present evidence. Defendant suggests
that if counsel truly appreciated the need to provide supporting documentation, counsel would
have done so.
¶ 41 In Perkins, our supreme court rejected the appellate court’s finding that because
postconviction counsel’s arguments were meritless, counsel was unfamiliar with the Act.
Perkins, 229 Ill. 2d at 50. The supreme court found that counsel was presumed to know the law
and, given the State’s arguments, it was hard to believe that counsel was not familiar with the
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applicable legal standards. Id. at 50-51. In addition, while postconviction counsel’s arguments
may not have been especially compelling and may have lacked legal merit, this did not show that
a better argument was available to counsel. Id. at 51. The supreme court refused to make such an
assumption, noting that “[c]ounsel’s argument was apparently the best option available based on
the facts.” Id.
¶ 42 As the reasoning in Perkins shows, defendant’s position fails to acknowledge that
sometimes counsel’s best option is not a great one.
¶ 43 Defendant’s pro se petition did not specify what line of defense or specific evidence trial
counsel should have pursued. In addition, postconviction counsel is not required to engage in a
fishing expedition to find evidence outside of the record that might support the defendant’s
claims. Bass, 2018 IL App (1st) 152650, ¶ 16. Upon speaking with defendant, postconviction
counsel may have learned that defendant had no specific leads that trial counsel should have
pursued. Furthermore, postconviction counsel may have determined that trial counsel did pursue
other lines of defense. It is also possible that even if trial counsel had failed to pursue other lines
of inquiry, such inquiries would not have uncovered useful information. Moreover, any witness
with relevant information may have refused to provide an affidavit or, worse yet, relayed
information that was harmful to defendant’s position.
¶ 44 Where a petition is not supported by affidavits or other evidence, a court can ordinarily
presume that postconviction counsel made a concerted effort to obtain such things in support of
the defendant’s claims but was unable to do so. People v. Johnson, 154 Ill. 2d 227, 241 (1993).
Nothing in the record rebuts this. Cf. Id. at 241-43 (finding the record contradicted the
presumption that counsel tried but was unable to obtain supporting affidavits where counsel
informed the court that her schedule had not permitted her to obtain the affidavits and her
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certificate stated she had made no attempt to contact two witnesses). Additionally, defendant
acknowledges in his opening brief that “the elephant in the room *** is the notion that, perhaps,
counsel did not amend the petition because there were no appropriate clarifying facts or
supporting evidence available to add.” Because postconviction counsel filed a Rule 651(c)
certificate, we must presume that this is the case.
¶ 45 Despite defendant’s apparent concession, defendant nonetheless presumes that it was
possible for postconviction counsel to remedy the foregoing defects by providing supporting
documentation. Stated differently, he presumes that postconviction counsel’s performance was
unreasonable. We decline to turn Rule 651(c)’s presumption on its head.
¶ 46 D. Jackson
¶ 47 Relying on People v. Jackson, 2021 IL App (1st) 190263, defendant asserts that we must
remand this matter for postconviction counsel to make a record of the specific actions he took in
this case.
¶ 48 In Jackson, the pro se petition asserted that trial counsel was ineffective for failing to
introduce the clothing he was wearing at the time of his arrest. Postconviction counsel filed a
Rule 651(c) certificate, a supplemental petition, and an affidavit from the defendant, which
alleged that he had repeatedly complained about trial counsel, including to her supervisor.
Postconviction counsel did not, however, attach an affidavit from trial counsel. At the hearing on
the State’s motion to dismiss, postconviction counsel argued that because the defendant was
wearing the clothes in question at the time of the arrest, they would have been available for trial
counsel to present. Ultimately, the trial court dismissed the petition, noting that the defendant
had produced nothing to show what happened to the clothing, whether it was available to trial
counsel, and whether she chose to ignore it. Defendant appealed, arguing that postconviction
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counsel provided unreasonable assistance because the record did not indicate whether she tried to
obtain the clothing, the inventory sheet, or arrest photos. Id. ¶¶ 4-5, 22-23, 26.
¶ 49 On appeal, the reviewing court recognized that the record must show postconviction
counsel complied with Rule 651(c), which can be accomplished by filing a Rule 651(c)
certificate. Id. ¶¶ 42-43. The court did not acknowledge, however, that where counsel files a
Rule 651(c) certificate, a presumption arises that counsel provided reasonable assistance. In
addition, the reviewing court stated it could not “find that postconviction counsel’s assistance
was, in fact, unreasonable, if we do not know whether she attempted to obtain these documents
and clothes and what facts she found.” Id. ¶ 44. The court agreed with the defendant that the
record lacked “any indication, one way or the other, about her efforts.” Id. While the lack of
record was ordinarily held against the defendant, “the emptiness of the record created by
postconviction counsel is defendant’s whole point on appeal.” Id. ¶ 45.
¶ 50 Citing Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the reviewing court vacated
the trial court’s judgment and remanded for further second-stage proceedings, at which
“postconviction counsel may further amend and support the petition.” Jackson, 2021 IL App
(1st) 190263, ¶ 46. Counsel was further directed to file a new Rule 651(c) certificate, after which
the trial court was to state on the record what attempts postconviction counsel made to determine
whether additional evidence existed regarding the defendant’s clothing. Id. Moreover, “[t]he
record should clearly reflect her efforts to obtain the clothing, the jail inventory sheet, and any
arrest photos and her efforts to document what was, and was not, available to trial counsel at the
time of the suppression hearing and trial.” Id.¶ 51 We find that Jackson was wrongly decided for several reasons. First, the reviewing court
failed to acknowledge the rebuttable presumption that exists when postconviction counsel files a
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Rule 651(c) certificate, as counsel had done in that case. In addition, that presumption refutes the
reviewing court’s finding that the record did not show that counsel provided reasonable
assistance. Furthermore, the reviewing court did not find that the defendant had made an
affirmative showing that counsel’s performance was unreasonable. Id. Instead, the court required
postconviction counsel to specify what attempts he made to obtain the clothing, the inventory
sheet, and arrest photos and to document what was and was not available to trial counsel. Absent
any showing of unreasonable assistance in Jackson, we heartily reject the notion that a reviewing
court may micromanage postconviction counsel and the trial court in this manner. Moreover, the
reviewing court improperly invoked Rule 615(b) as a means to disregard Rule 651(c) and our
supreme court’s jurisprudence thereon.
¶ 52 Defendant argues that
“[d]eclining to follow the reasoning in Jackson would mean that if counsel does not
amend second-stage petitions, the court in every case will have to operate under the
presumption that counsel tried to make the claims cognizable and searched for
exculpatory evidence, even when the record remains silent as to whether counsel actually
did so.”
Defendant overlooks, however, that when postconviction counsel files a Rule 651(c) certificate,
the record is not silent as to whether counsel tried to make a defendant’s claims cognizable.
Furthermore, defendants remain free to rebut that presumption where counsel’s performance was
nonetheless unreasonable. See, e.g., Johnson, 154 Ill. 2d at 241-43. Given Jackson’s conflict
with supreme court jurisprudence, we must decline to follow it.
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¶ 53 E. Greer
¶ 54 Citing Greer, defendant further suggests that if postconviction counsel could not amend
the petition and provide required affidavits, counsel was required to withdraw.
¶ 55 In Greer, the supreme court rejected the defendant’s assertion that postconviction counsel
could not be permitted to withdraw. Greer, 212 Ill. 2d at 195-96. Specifically, Rule 651(c) did
not require counsel to advance frivolous claims and “the mere filing of an amended petition by
counsel under such circumstances would appear to violate the proscriptions of Supreme Court
Rule 137.” Id. at 205-06; see Ill. S. Ct. R. 137 (eff. Jan. 1, 2018) (providing that an attorney’s
signature on a document represents that she is filing the document in good faith). Furthermore,
the legislature did not intend that counsel be required to continue representing a defendant on a
frivolous petition and “the attorney is clearly prohibited from doing so by his or her ethical
obligations.” (Emphasis omitted.) Greer, 212 Ill. 2d at 209.
¶ 56 Thus, Greer held that postconviction counsel may withdraw if she finds the defendant’s
contentions are meritless, not that counsel must withdraw in that instance. Additionally, Greer
held that postconviction counsel may not himself file a frivolous amended petition that would
violate Rule 137. That being said, Greer’s statement that counsel is “prohibited” from continuing
to represent a defendant on a frivolous petition must be understood in the context of the specific
issue before it. We decline defendant’s invitation to expand Greer. See also People v. Pingleton,
2022 IL 127680, ¶ 33 (stating that if “postconviction counsel discovers something that would
ethically prevent him or her from presenting the petitioner’s claims, counsel may move to
withdraw” (emphasis added)).
¶ 57 Another panel of this court has also observed that while the defendant before it asserted
that counsel acted unreasonably by not withdrawing, the defendant in Greer argued just the
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opposite, that counsel’s withdrawal was improper. See Bass, 2018 IL App (1st) 152650, ¶ 18. As
a practical matter, postconviction counsel cannot be expected to conform his or her performance
to what a defendant might prefer with the benefit of hindsight.
¶ 58 We further observe that requiring counsel to withdraw after determining that a petition is
meritless would pose certain disadvantages to a defendant. It may discourage counsel from
making a good faith argument on a defendant’s behalf where the merits of his claim present a
close call. Additionally, when
“a pro se postconviction petition advances to the second stage on the basis of an
affirmative judicial determination that the petition is neither frivolous nor patently
without merit, appointed counsel’s motion to withdraw must contain at least some
explanation as to why all of the claims set forth in that petition are so lacking in legal
and factual support as to compel his or her withdrawal from the case.” (Emphasis
added.) Kuehner, 2015 IL 117695, ¶ 27.
This a double-edged sword.
¶ 59 On the one hand, the requirement ensures that counsel has not overlooked an issue found
by the trial court to be potentially meritorious. On the other, it may require counsel to make a
record of details that a defendant would rather not have shared on the record, particularly with
respect to the results of counsel’s investigation and his efforts to obtain supporting
documentation. The defendant in that instance is also forced to defend his petition against not
just the State, but postconviction counsel, whose motion to withdraw may be premised on
different grounds. Pingleton, 2022 IL 127680, ¶ 41.
¶ 60 Even after Greer, the appellate court has held that if postconviction counsel investigates
the defendant’s claims but finds them to be without merit, he may either (1) withdraw or
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(2) stand on the pro se petition. See, e.g., People v. Perry, 2017 IL App (1st) 150587, ¶ 26;
People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008). While we recognize that other appellate
court decisions have omitted the latter option (see, e.g., People v. Shortridge, 2012 IL App (4th)
100663, ¶ 13), the foregoing considerations compel us to adhere to the prior line of cases, with
one caveat.
¶ 61 In Pace, the reviewing court stated that postconviction counsel’s option “is to stand on
the allegations in the pro se petition and inform the court of the reason the petition was not
amended.” (Emphasis added.) Pace, 386 Ill. App. 3d at 1062. It is unclear, however, why
counsel would categorically be required to explain the absence of an amended petition, given
that there is no categorical requirement for appointed counsel to file one in the first instance. See
Turner, 187 Ill. 2d at 412. In addition, requiring counsel to provide that explanation would defeat
the rebuttable presumption created by filing a Rule 651(c) certificate. Moreover, Pace did not
consider the potential harm inflicted on a defendant when counsel expresses views that are
contrary to the defendant’s interests. Accordingly, we disagree with Pace to the extent that it
requires appointed counsel to explain why the pro se petition was not amended.
¶ 62 III. CONCLUSION
¶ 63 Postconviction counsel filed a Rule 651(c) certificate, creating a presumption that counsel
provided reasonable assistance. Defendant did not rebut that presumption. He is not entitled to
relief.
¶ 64 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 65 Affirmed.
¶ 66 JUSTICE PUCINSKI, dissenting:
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¶ 67 This was a horrible crime against an extremely vulnerable victim. No one, least of all me,
wants to minimize the terrible events of September 22, 2007, which lead to the death of 87-year-
old Joe Miller.
¶ 68 However, I cannot ignore the fact that the decision to testify on his own behalf is one that
the defendant, and only the defendant, can make.
¶ 69 Courts routinely ask defendants if they have consulted with their attorneys and if the
decision is free and voluntary when they decide not to testify. This leaves a giant information gap
that neither the defendant nor the court can adequately fill.
¶ 70 First, looking at it from the defendant’s point of view: it is not impossible to imagine that
a defendant, who needs to rely on his attorney for the entire trial, would be reluctant to tell the
court that the same attorney threatened to withdraw if the defendant went against the attorney’s
advice not to testify. The risk of the attorney withdrawing after telling the court that the attorney
threatened him is too high.
¶ 71 Second, look at it from the court’s point of view. The court asks: “Were you threatened in
any way to come to the decision not to testify?” and “Is this your free and voluntary decision?”
Courts sometimes ask these questions after telling the defendant that the choice is his and his alone,
but that is sometimes articulated in a less direct way, if at all. Still, the court thinks it has the
information it needs, and I believe most judges would not delve more deeply into conversations
between the attorney and the defendant for fear of inadvertently dipping into attorney-client
privilege. That means that the court really only has the pro forma information it needs to decide if
the decision not to testify is truly only the defendant’s and truly voluntary.
¶ 72 Third, look at it from the attorney’s point of view. While I believe that the vast majority of
honorable criminal defense attorneys would never dream of threatening to withdraw if a client
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ignored their advice, I can just as easily imagine that there are some attorneys who, for whatever
reason, would do exactly that. Those attorneys know they can get away with it because—in the
unlikely event a court probed more deeply or, in the extreme, questioned the attorney under oath—
the same unscrupulous mindset would do little to prevent the attorney from telling the court, “I did
nothing of the sort!” Certainly, no attorney will ever admit in court that he browbeat his client.
That would be bad for business, would be bad for his reputation in the court, and would likely lead
to an ARDC complaint.
¶ 73 In order to truly discover what is going on with this foundational right of the defendant,
courts need to develop more layered questions about the decision not to testify.
¶ 74 The American Bar Association Criminal Justice Section recently released the 2023 Report
of its Plea Bargain Task Force. 1 While the report focused on the mechanics of plea bargains, many
of its recommendations are instructive for determining if a defendant’s decision not to testify is
his or hers alone and is truly voluntary.
¶ 75 Each of the principles of the report discussed below apply equally well to plea bargains
and the decision to testify or not:
(1) Principle 2 criticizes the use of “impermissibly coercive incentives or incentives
that overhear the will of the defendant.” The court needs to know if the defendant’s attorney
has “impermissibly coerced the defendant.” So, while the court asks the defendant if he has
been threatened, that question could be broken down into several parts, for example: do
you know that you and only you can decide if you will testify? That means that while your
attorney can give you advice, you don’t have to listen to it. Did your attorney give you
1
The Report may be accessed here: Thea Johnson, 2023 Plea Bargain Task Force Report, (Am.
Bar Ass’n 2023), https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea-bargain-tf-
report.pdf [https://perma.cc/SDY5-QA9F].
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advice on testifying? Did he explain his reasons to you? Do you want to ignore that advice?
Did your attorney or anyone else threaten to leave your case if you testified? Did you feel
threatened by any specific language your attorney or anyone else used in your discussions?
Did you feel that it is hopeless to testify because then your attorney would drop out of the
case? Did your attorney or anyone else tell you that if you testify, he will not be responsible
for the result? Did your attorney or anyone else tell you that you will not be able to appeal
if you testify? Did your attorney or anyone else tell you that if you testify you will almost
certainly be found guilty?
(2) Principle 7 states, among other things, that the defendant [should] understand
the consequences of his decision. For example, the court could ask of the defendant: “Sir,
what do you think will happen if you decide to testify?”
(3) Principle 9 states that “defendants should receive all available discovery,
including exculpatory materials, prior to the entry of a guilty plea and should have
sufficient time to review such discovery before being required to accept or reject a plea
offer.” The same sense of fairness should govern the defendant’s decision to testify. Does
the defendant know what the State knows? Is he likely to face some surprise if he testifies?
Does he know how any surprise might affect the outcome of the trial? Did he have enough
time to go over the discovery material? Did his attorney go over the material with him?
Does he believe there is something missing from the discovery? What? Does he have any
questions of the court about any of the discovery?
(4) Principle 11 discusses collateral consequences of a guilty plea. There are likely
collateral consequences of testifying. The court could ask, for example, “What do you think
is the best that can happen if you testify? What do you think is the worst that can happen?
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What do you think the jury (or I, the judge) will think if you do not testify? Do you know
that no one can ever hold it against you in any way if you decide not to testify? Did your
attorney or anyone else tell you that if you testify you will be in prison longer?”
¶ 76 Underlying all of the ABA Task Force recommendations is the goal of asking fewer yes/no
questions, putting all questions in simple language, and making sure that the defendant has no
follow up questions of his own.
¶ 77 In this case we do not know what the defendant would have said because his postconviction
counsel did not amend his petition by adding an affidavit to that effect. In a case with no physical
evidence leading to this defendant, and only the word of another defendant in this matter who cut
a deal, we cannot say that his testimony would not have helped his defense. We might think it
unlikely, but we cannot say for sure that what he told the jury would have had no effect. For this
reason, I dissent and believe this should be remanded for new second stage proceedings with new
postconviction counsel.
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People v. Turner, 2023 IL App (1st) 191503Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07-CR-24881;
the Hon. Alfredo Maldonado, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan (Lorelee
for Kampschneider, law student), of State Appellate Defender’s
Appellant: Office, of Chicago, for appellant.
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Retha Stotts, and James Naughton, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
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