People v. Willis

2023 IL App (1st) 220098-UNo. 1-22-0098
Order filed May 30, 2023
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
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. 06 CR 27592
)
WAYNE WILLIS, ) Honorable
) Joann F. Rosado,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Justice Pucinski concurred in the judgment.
Presiding Justice Lavin dissented.
ORDER
¶1 Held: Reversed and remanded where the record rebuts the presumption that postconviction
counsel read the record and amended the claims pursued to conform with the Post-
Conviction Hearing Act.
¶2 Counsel need not litigate each claim in a pro se postconviction petition. But they must
amend the claims they do pursue to conform with the Post-Conviction Hearing Act. Here, counsel
pursued three ineffective assistance claims as they appeared in Willis’s petition, though the record
showed Willis had misidentified a key witness. The record thus rebuts the presumption, arising
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from the Rule 651(c) certificates, that counsel read the record and amended the claims she pursued
to conform with the Act. We reverse and remand.
¶3 Background
¶4 At the first stage of postconviction proceedings, the trial court advanced Wayne Willis’s
petition within the 90-day deadline and appointed counsel. Eight-and-a-half years later, the trial
court dismissed the petition at a second-stage hearing that Willis did not attend. On appeal Willis
challenges counsel’s performance.
¶5 Before postconviction proceedings began, Willis directly appealed his convictions for
aggravated criminal sexual assault and his cumulative term of 33 years’ imprisonment.
Unfortunately, that appeal took a protracted path. See People v. Willis, No. 1-07-1333 (May 15,
2009) (unpublished order under Illinois Supreme Court Rule 23); People v. Willis, No. 108573
(Ill. Sept. 29, 2010) (supervisory order); People v. Willis, No. 1-07-1333 (Nov. 29, 2010)
(unpublished order under Illinois Supreme Court Rule 23); Willis v. Illinois, 567 U.S. 948 (June
29, 2012).
¶6 We ultimately affirmed. We found no reversible error when assessing his contentions that
(i) the admission of DNA evidence without testimony from the relevant lab analysts denied him
his right to confrontation, and (ii) the State failed to establish the corpus delicti. See People v.
Willis, 2012 IL App (1st) 071333-U.
¶7 Willis began these proceedings by mailing a petition from the Department of Corrections.
He attacked as ineffective the assistance he received from counsel at trial and on appeal by raising
several claims. We discuss the pertinent ones. Willis also attacked the trial court’s jurisdiction to
preside over his prosecution and the propriety of the pretrial proceedings leading to his
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indictments. We need not discuss these claims because counsel’s litigation of the ineffective
assistance claims leads us to reverse and remand.
¶8 Willis supported his claims with pages from the record of his direct appeal. He also attached
a copy of a reviewing court order and hand-annotated printouts of statutes and bills.
¶9 The trial court advanced Willis’s petition to the second stage. There, two lawyers appeared
on Willis’s behalf. Assistant Public Defender Denise Avant filed a Rule 651(c) certificate shy of
four years after Willis petitioned. She certified that Willis’s filing alone “adequately states” his
claims. Later, Assistant Public Defender Camille Calabrese filed a Rule 651(c) certificate after
another about two-and-a-half years. She certified to having made amendments “necessary” to
present Willis’s claims.
¶ 10 Before filing these certificates, neither attorney filed an amended postconviction petition.
And neither certificate prompted a response from the State.
¶ 11 An additional year and a half or so passed before the State moved to dismiss Willis’s
petition. The State challenged its sufficiency, arguing (i) the absence of a verification affidavit
certifying Willis brought his claims truthfully and in good faith; (ii) the absence of affidavits,
records, or other evidence supporting Willis’s factual claims; and (iii) the sufficiency of Willis’s
legal claims.
¶ 12 After meeting with Willis, Calabrese filed a verification affidavit: “I, Wayne Willis, a
prisoner incarcerated in Hill Correctional Center, have read and understand the above Petition for
Post Conviction Relief. All the facts presented [are] true and correct to the best of my recollection.”
Calabrese intended the affidavit to address the State’s first and second contentions and said so at
the hearing on the motion to dismiss.
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¶ 13 Before the hearing, Calabrese attached Willis’s affidavit to a filing she styled, “Response
to State Motion to Dismiss Pro Se Post Conviction Petition and Petitioner’s Motion to Attach
Notarized Affidavit to Pro Se Post Conviction Petition.” In it, she recounted her and Willis’s failed
efforts at communicating. She also recounted having “physically obtain[ed] the correctly notarized
affidavit.”
¶ 14 Affidavit in hand, Calabrese amended Willis’s pro se petition, “Counsel reasserts all
arguments in the Petitioner’s pro se post conviction proceeding * * * [and] requests that said
notarized affidavit be incorporated into Petitioner’s pro se post conviction petition[.]”
¶ 15 Below that, she stated, “Counsel reasserts all of Petitioner’s claims contained in his pro se
post conviction petition for which counsel did file a 651(c).” (Emphasis added). She did not
elaborate. Years earlier, her Rule 651(c) certificate did not limit her efforts to certain claims. In
full, she certified:
1. I have consulted with the Defendant/Petitioner Wayne Willis, by mail to
ascertain his/her contentions: in addition, I have discussed the case via prison phone
call(s).
2. I have examined the report of proceedings at [trial], appellate material, and court
files and have conducted interviews necessary to investigate Defendant/Petitioner’s
contentions, as well as records of court proceedings.
3. I have made any amendments to [the] motion necessary for the adequate
presentation of Defendant/Petition’s contentions and defects in same.
¶ 16 APD Avant likewise did not limit her certification:
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1. I have consulted with the petitioner, Wayne Willis, by letter and telephone, to
ascertain his contentions of deprivations of constitutional rights;
2. I have reviewed a copy of the petitioner’s transcript, presided over by the
Honorable Thomas Gainer;
3. I have also reviewed the opening brief, State brief, reply brief, Petition for Leave
to Appeal, and the Appellate Court decision in cause No. 1-07-1333 and briefs in
support of and opposition to Petition For writ of Certiorari to the United States
Supreme Court;
4. I have spoken with trial counsel, Sharon Sims, and attempted on two separate
occasions to reach co-counsel and former Assistant Public Defender, Andrew T.
[Northrup], now in the Maryland Public Defenders Office;
5. I have not prepared a Supplemental Post-Conviction Petition, as petitioner’s pro
se petition adequately states his claims of deprivation of his constitutional rights.
¶ 17 Read together, these certificates cataloged consultations with Willis (and with one of two
trial attorneys, as related in Avant’s certificate), examinations of pertinent filings and transcripts,
and decisions not to amend Willis’s pro se petition.
¶ 18 The crux of Willis’s petition concerned claims of ineffective assistance of counsel. Willis
raised all claims through that lens. Critical support for three ineffective assistance claims pertinent
here appeared in an attachment, “Appendix E. ‘Brady Evidence.’”
¶ 19 On appeal, the parties refer to this attachment as “unspecified” and “unidentified.” Yet, the
attachment appears as a single page from a pretrial motion styled “Motion to Bar Witness
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Testimony.” This motion appears in the impounded common-law record Willis prepared for this
appeal. On this single page, Willis highlighted:
“[T]he defense believes that Ms. Rosier and Ms. Lombatos are neither deceased nor
unwilling to answer to a state subpoena and that the State is refusing to call her to
insulate her from any cross-examination as to her criminal conduct while she
worked for Orchid Cellmark and the Illinois State Police, respectively.”
¶ 20 In his petition, Willis alleged that trial counsel provided ineffective assistance by: (i) failing
“to interview and subpoena two of the State’s witnesses once the State refused to call the two
expert witnesses”; (ii) failing to investigate a Brady violation after “finding out that the prosecutor
was bringing in *** substitute witnesses, in an attempt to insulate Ms. Rosier and Ms. Lombatos
from cross examination as to her criminal conduct while she worked for Orchid Cellmark, and the
Illinois State Police”; and (iii) failing to demonstrate “the evidence that was being suppressed by
the state was favorable[.]” In addition, Willis attacked appellate counsel for failing to raise these
claims.
¶ 21 Moving to dismiss, the State attacked Willis’s claims, describing them as lacking
“sufficient facts to which [it could] respond.”
¶ 22 At trial, the State argued DNA extracted from the complainant matched a DNA profile
obtained from Willis. To prove this, the State called Dr. Jennifer Reynolds to testify about
reviewing the work of two non-testifying Cellmark analysts, Leslie Roacher and Ellie Sammon.
That these analysts would not testify was a point of contention between the parties. Willis’s two
trial attorneys moved to bar Dr. Reynold’s testimony. In a written motion, they cited reporting on
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fraud inside labs across the country to argue the trial court should not presume that the analysis
would be reliable evidence. But they misidentified the analysts as “Ms. Rosier and Ms. Lombatos.”
¶ 23 Willis’s single page and petition highlighted this mistaken passage to support his
postconviction claims that the State covered up misconduct in its investigation and that his trial
attorneys did nothing about it.
¶ 24 The trial court granted the State’s motion to dismiss. It agreed the petition lacked factual
support for its legal claims, noting it saw no “additional information or evidence from anybody
saying this is what would have happened instead.” Also, the trial court rejected all claims of
ineffective assistance on their merits and mentioned the Brady claim specifically, finding, “There
doesn’t seem to be any Brady violation that was proven or any new information that proved in fact
there was a Brady violation at this point in time.”
¶ 25 Analysis
¶ 26 Willis argues postconviction counsel provides a petitioner with reasonable assistance by
choosing one of two options: (i) litigating or (ii) moving to withdraw. Here, litigating would have
required the APDs to “make the amendments necessary to adequately present [] Willis’[s] claims,
provide required documentation, or explain its absence.” Moving to withdraw would have required
them to “explain why [Willis’s] claims are frivolous.” But in Willis’s view, they did neither and
“stood on” his claims, thus providing unreasonable assistance. And Willis contends this court may
not presume otherwise because the Rule 651(c) certificates did not “substantially comply” with
that rule.
¶ 27 The State disagrees with both contentions. The State defends the sufficiency of the Rule
651(c) certificates and adds that Willis has failed to rebut the presumption arising from them,
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namely, that both attorneys provided Willis with reasonable assistance. The State also argues
counsel need not litigate claims that lack merit. In the State’s view, Willis falsely excludes another
option available to counsel, “where no discernible amendments would have advanced petitioner’s
claims, counsel may reasonably choose to stand on the pro se petition.”
¶ 28 The parties recognize their positions track a current split in appellate court caselaw on how
to apply two Illinois Supreme Court decisions: People v. Greer, 212 Ill. 2d 192, 211-21 (2004)
(holding, appointed counsel may move to withdraw after determining petition frivolous and
patently meritless), and People v. Kuehner, 2015 IL 117695 (holding, counsel must explain why
claims lack merit when moving to withdraw after judicial determination that petition neither
frivolous nor patently meritless). Compare, e.g., People v. Bass, 2018 IL App (1st) 152650 ¶¶ 17,
22 (rejecting claim that counsel’s failure to either amend the petition or withdraw deprived
petitioner of reasonable assistance) with People v. Pace, 386 Ill. App. 3d 1056, 1063 (2008)
(finding error where counsel pursued “another option” and trial court permitted counsel to dismiss
client’s petition and refused to re-instate petition at petitioner request). We note, parenthetically,
that the supreme court may soon resolve this dispute. People v. Huff, 2022 IL App (1st) 201278-
U, pet. for leave to appeal allowed, No. 128492 (Sept. 28, 2022).
¶ 29 But this is not a case about whether appointed counsel may stand on a pro se petition.
Calabrese pursued all claims in the pro se petition by amending Willis’s petition in response to the
motion to dismiss. Thus, this case concerns reasonable assistance and compliance with Rule 651(c)
duties during active litigation.
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¶ 30 Before we address this point, we consider and reject Willis’s contention that the Rule
651(c) certificates did not suffice to raise a presumption that counsel provided reasonable
assistance.
¶ 31 Petitioners like Willis are entitled to assistance when litigating their petitions at the second
stage. People v. Smith, 2022 IL 126940, ¶ 13 (citing Greer, 212 Ill. 2d at 204). Together, the Act
and Supreme Court Rule 651 “ensure that post-conviction petitioners in this State receive a
reasonable level of assistance[.]” Smith, 2022 IL 126940, ¶ 13 (citing People v. Owens, 139 Ill. 2d
351, 359 (1990)).
¶ 32 Rule 651 (c), “Record for Indigents; Appointment of Counsel,” provides:
The record filed in [the trial] court shall contain a showing, which may be made by
the certificate of petitioner's attorney, that [(i)] 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, [(ii)] has examined the record of
the proceedings at the trial, and [(iii)] has made any amendments to the petitions
filed pro se that are necessary for an adequate presentation of petitioner's
contentions.
¶ 33 The filing of a Rule 651(c) certificate suffices to create a presumption on appeal that a
petitioner received reasonable assistance of counsel. Smith, 2022 IL 126940, ¶ 29.
¶ 34 Both APDs filed certificates stating they had complied with Rule 651. Read together, and
in context, these certificates catalogued their consultations with Willis (and with one of two trial
attorneys), examinations of pertinent filings and proceedings, and decisions not to amend Willis’s
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pro se petition. Either certificate, alone, created a presumption that defendant received reasonable
assistance. Id. ¶¶ 12, 29-30, 38.
¶ 35 Nonetheless, Willis attacks the certificates as failing to replicate the language of Rule 651.
The premise of Willis’s argument finds no support in the text of the rule. Subsection (c) requires
a showing of compliance to appear in the record and does not require a written certificate at all.
See also People v. Jones, 2011 IL App (1st) 092529, ¶ 24 (finding, “nothing in Rule 651(c) that
suggests the certificate is intended to be a comprehensive recounting of all of postconviction
counsel’s efforts”).
¶ 36 Even so, Willis attacks Avant’s certificate because, rather than certify that she had
“examined the record of the proceedings at the trial,” Avant certified that she had “reviewed a
copy of the petitioner’s transcript.” We reject the idea that a transcript is somehow different from
a record of the proceedings. See Ill. S. Ct. R. 323(b) (directing court reporters “who transcribe[] a
report of proceedings” to “certify to [their] accuracy”). We also note that Avant certified she had
reviewed the briefs filed on direct appeal and this court’s prior decision, not to mention the parties’
pleadings filed in the United States Supreme Court.
¶ 37 Willis likewise attacks Calabrese’s certificate because she certified that she had consulted
him to learn his “contentions,” not his “constitutional contentions.” We reject the idea that her
certification did not encompass Willis’s claims. Logically, “contentions” include constitutional
ones. And textually, Willis raised only “constitutional contentions” in his petition, the same
document Calabrese cited in her certificate.
¶ 38 But our finding that these certificates suffice to raise the presumption counsel provided
him with reasonable assistance does not foreclose Willis from attempting to refute it. Smith, 2022
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IL 126940, ¶ 38. We still must measure counsel’s certifications against the balance of their
performance presented across the record. People v. Addison, 2023 IL 127119, ¶ 26. We review de
novo an attorney’s compliance with Rule 651(c). People v. Suarez, 224 Ill. 2d 37, 42 (2007).
¶ 39 Doing so, we see why the parties mistakenly frame their dispute as whether counsel “stood
on” Willis’s pro se petition. Avant stood on the pro se petition by expressly disclaiming a need to
amend it and not amending it. Calabrese made a similar certification and, at the hearing on the
State’s motion to dismiss, purported to “stand on” Willis’s pro se petition.
¶ 40 But the record shows Calabrese’s actions and filings belied her self-characterization. She
actively litigated all pro se claims when responding to the State’s motion to dismiss. This matters
because we must look at the claims counsel chose to pursue and then measure her litigation of
those claims against what reasonable counsel would have done under similar circumstances.
Addison, 2023 IL 127119, ¶ 26.
¶ 41 Here, the State had argued for procedural default of all claims, given the absence of Willis’s
personal verification affidavit. Calabrese responded by amending the petition---specifically, by
attaching a verification affidavit and expressly “reassert[ing] all arguments contained in the
Petitioner's pro se post conviction proceeding[.]” Thus, she no longer stood on Willis’s pro se
petition, but actively litigated each pro se claim.
¶ 42 Assessing her performance, Calabrese should have properly identified the witnesses for
Willis’s ineffective assistance claims. The single page from a pretrial motion styled “Motion to
Bar Witness Testimony,” appended to Willis’s petition, included several typos, like writing
“Lombatos,” a likely misspelling of a name for a witness in a separate prosecution. (As the State
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notes, Sandra Lambatos performed forensic testing in People v. Williams, 238 Ill. 2d 125 (2010),
affirmed by Williams v. Illinois, 567 U.S. 50 (2012).)
¶ 43 Calabrese could not reasonably litigate Willis’s ineffective assistance claims without
correcting this basic factual mistake. To do so, she needed only to read the transcript where she
would have learned the correct identity of the second Cellmark analyst as Ellie Sammon. But, the
record shows she did not make this necessary amendment either. Thus, the record rebuts the
presumption that she provided Willis with reasonable assistance. Addison, 2023 IL 127119, ¶ 26.
Contrary to her Rule 651(c) certificate, the record shows she failed to examine the record of the
proceedings at the trial and amend Willis’s petition to adequately present these claims.
¶ 44 As our supreme court has repeatedly held, we do not ask whether Willis’s claims had merit.
Addison, 2023 IL 127119, ¶¶ 35, 42; Suarez, 224 Ill. 2d at 48. Given counsel’s violation of Rule
651(c), we remand so Willis can receive the limited right to counsel provided by the Act, and the
circuit court can rule on these claims. Id.; People v. Turner, 187 Ill. 2d 406, 415-17.
¶ 45 Reversed and remanded.
¶ 46 PRESIDING JUSTICE LAVIN, dissenting:
¶ 47 On appeal, defendant solely asserts that postconviction counsel was required to attach
affidavits or other documentation supporting his claims and, if counsel could not do so, she was
required to withdraw. Defendant has not argued that counsel should have amended his petition to
correct the identity of the Cellmark analysts involved in his case, notwithstanding the majority’s
undertaking to make this argument for him.
¶ 48 “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
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the defendant's claims but was unable to do so.” People v. Turner, 2023 IL App (1st) 191503, ¶ 44
(citing People v. Johnson, 154 Ill. 2d 227, 241 (1993)). As this court stated in Turner, “defendant’s
position fails to acknowledge that sometimes counsel’s best option is not a great one.” Turner,
2023 IL App (1st) 191503, ¶ 42. Furthermore, postconviction counsel was not required to withdraw
if she was unable to obtain supporting documents. Id. ¶¶ 56-60.
¶ 49 Here, defendant’s postconviction attorneys filed Rule 651(c) certificates, creating a
presumption that defendant received the reasonable assistance of counsel. Defendant has not
rebutted that presumption. I would affirm the trial court’s judgment.
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