People v. Starnes , 2022 IL App (2d) 200125-U ( 2022 )

2022 IL App (2d) 200125-UNo. 2-20-0125
Order filed February 16, 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 Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-3371
)
TYWAN STARNES, ) Honorable
) Ronald J. White,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err in its second-stage dismissal of defendant’s
postconviction claim that trial counsel was ineffective for failing to call defendant’s
ex-girlfriend to testify at trial that defendant did not reside at the house where police
found guns that were the basis of defendant’s conviction of being an armed habitual
criminal. There was not a reasonable probability that her testimony would have
changed the outcome at trial given the abundant evidence connecting defendant to
the residence. (2) Postconviction counsel did not provide unreasonable assistance
by failing to subpoena the ex-girlfriend to testify at a second-stage hearing, where
persistent efforts to locate her during the trial and postconviction proceedings were
unsuccessful.
¶2 Following a jury trial, defendant, Tywan Starnes, was convicted of being an armed habitual
criminal (720 ILCS 5/24-1.7(a) (West 2008)). Trial evidence revealed that defendant
2022 IL App (2d) 200125-Uconstructively possessed guns that the police found at 922 Church Street in Rockford. After trial,
defense counsel filed a motion, arguing his ineffectiveness for failing to call to testify Carrie
Northrup, defendant’s ex-girlfriend. Northrup told investigators that defendant lived with her at
1325 Green Street in Rockford when the incident happened. The trial court denied the motion,
finding that trial counsel was not ineffective. The court sentenced defendant to 22 years’
imprisonment. He appealed, and we affirmed. People v. Starnes, 2012 IL App (2d) 110999-U.
¶3 Defendant petitioned pro se for relief under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 (West 2012)), the trial court found that the petition stated the gist of a constitutional
claim, and it appointed postconviction counsel to represent defendant. Postconviction counsel,
who had great difficulty maintaining contact with Northrup, filed an amended petition, arguing
that trial counsel was ineffective for failing to call Northrup to testify at trial. The State moved to
dismiss. The trial court understood the difficulty postconviction counsel was having in contacting
Northrup and suggested that counsel subpoena Northrup to testify at the hearing on the State’s
motion to dismiss. Counsel ultimately did not subpoena her, and the trial court granted the motion
to dismiss. Defendant timely appeals from that dismissal. He argues that (1) he made a substantial
showing that his trial counsel was ineffective for failing to call Northrup to testify at trial and
(2) postconviction counsel provided unreasonable assistance for failing to subpoena Northrup to
testify at the hearing on the State’s motion to dismiss the amended petition. We affirm.
¶4 I. BACKGROUND
¶5 Before trial, the sheriff attempted several times to serve Northrup with a subpoena. Most
of the subpoenas were returned unserved with a notation that the sheriff could not locate Northrup.
¶6 Evidence presented at trial revealed that, on August 21, 2008, police responded to a call of
shots fired around 922 Church Street in Rockford. The home at that address consisted of two
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2022 IL App (2d) 200125-Uapartments—one on the first floor and the other on the second floor. A door and a staircase
separated them.
¶7 While at the scene, officers spoke to defendant and his brother in the doorway of 922
Church Street. Defendant “identified himself as Tywan Starnes and indicated that [922 Church
Street] was his residence.” Later that day, when officers were marking evidence outside the home,
defendant, who was angry, approached the police and yelled:
“ ‘Y’all just want to help them. They shoot at “my house” and y’all just want to help
them.’ ” (Emphasis added.)
While investigating, police also discovered a car registered to defendant parked in front of the
home.
¶8 The next day, the police executed a search warrant for 922 Church Street. A car registered
to defendant was parked in the home’s driveway. Five people were in the home, but defendant was
not there. In the bedroom of the first-floor apartment, the police found three people, one of whom
was defendant’s sister. The police also discovered two loaded rifles underneath the bed in that
bedroom. Although nothing with any of the three people’s names on it was found in that bedroom
or anywhere else in the home, police discovered documents with defendant’s name on them in the
bedroom. On a dresser in that room was a ComEd bill addressed to defendant at 922 Church Street.
Inside of a dresser drawer in a bag were a Social Security card with defendant’s name on it; a
check made out to defendant; and a ComEd letter with defendant’s name on it, referencing 922
Church Street, Unit 1 as the service location. In the first-floor kitchen, the police recovered a
handgun on top of the refrigerator. In the living room of the first-floor apartment, police found two
letters addressed to defendant at two different locations on Andrews Street in Rockford.
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2022 IL App (2d) 200125-U¶9 Various documents with defendant’s brother’s name on it were discovered in the second-
floor bedroom where the police found defendant’s brother. Police also found a car repair bill with
defendant’s brother’s name on it on top of the dresser in the first-floor bedroom.
¶ 10 Before defendant presented his case, trial counsel asked the trial court if he could talk to
defendant about whether defendant wished to call any witnesses. After a brief recess, trial counsel
advised the court, in defendant’s presence, that no witnesses would be called.
¶ 11 After trial, defense counsel filed a motion for a new trial, arguing his own ineffectiveness
in failing to call various witnesses that defendant asked to be called. One of those witnesses was
Northrup. According to a statement that Northrup gave to investigators (the written statement was
not made part of the record but was read during the proceedings) Northrup and defendant had been
together for 14 years; they never lived at 922 Church Street; they lived at 1325 Green Street for 8
months before the incident; and the lease for the 1325 Green Street residence was in defendant’s
name.
¶ 12 Defendant’s trial attorney told the trial court that he was aware of Northrup and of
defendant’s desire to call her at trial. Still, he made the strategic decision not to call her, because
she did not come across as a very good witness. Counsel explained that he was concerned at the
time about her demeanor, her recollection of events, and her credibility on cross-examination.
Counsel also believed at the time that calling Northrup to testify would not matter, because, even
if defendant lived elsewhere with Northrup, the evidence still connected him to 922 Church Street
and the area where guns were found. Counsel elaborated that, because Northrup could not account
for defendant’s whereabouts all the time, defendant might have stayed at 922 Church Street in
addition to the 1325 Green Street home. The court found that trial counsel was not ineffective for
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2022 IL App (2d) 200125-Ufailing to call Northrup at trial, as counsel made a strategic decision not to call her and the result
of the trial would not have been different if she testified.
¶ 13 Defendant appealed, arguing only that (1) he was not proved guilty beyond a reasonable
doubt of constructively possessing any of the firearms found in the house and (2) a fee was
improperly imposed. Starnes, 2012 IL App (2d) 110999-U, ¶ 16. We vacated the fee and found
that defendant was proved guilty beyond a reasonable doubt of constructively possessing the
firearms found in the home. Id.¶ 14 Defendant petitioned pro se for postconviction relief. He argued, among other things, that
trial counsel was ineffective for failing to call the three people police located in the first-floor
bedroom to testify and that appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness on direct appeal. The trial court found that defendant’s petition stated the gist of a
constitutional claim and appointed counsel to represent defendant.
¶ 15 Almost four years elapsed before postconviction counsel filed an amended petition.
Although postconviction counsel had prepared an amended petition within one year after he was
appointed, he could not file the amended petition because, among other things, he could not contact
Northrup. In the amended petition, postconviction counsel argued, among other things, that trial
counsel was ineffective for failing to call Northrup to testify that defendant lived with her at 1325
Green Street for three to four months before the incident. Although postconviction counsel alleged
that appellate counsel was ineffective, he did not raise that issue as to the claim that trial counsel
was ineffective for failing to call Northrup to testify. However, the State conceded that that was
postconviction counsel’s intention and the claim was treated as applying to trial counsel as well.
¶ 16 Eventually, trial counsel submitted Northrup’s affidavit. Her affidavit was notarized about
one month after filing the amended petition. The affidavit was not notarized sooner because
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2022 IL App (2d) 200125-UNorthrup failed to attend her scheduled appointment with postconviction counsel. Northrup
attested that defendant lived with her at 1325 Green Street for three or four months before the
incident; defendant’s sister and brother lived at 922 Church Street; defendant visited his brother
and sister “often;” defendant put some of the utilities for 922 Church Street in his name because
his brother who lived there had financial difficulties; defendant’s car was parked at 922 Church
Street because it broke down a few days before the incident; and “any of [defendant’s] belongings
or bills/mail found [at 922 Church Street] would have been due to him visiting and/or helping out
by putting some of the utilities in his name.”
¶ 17 Also filed along with the amended petition was counsel’s certificate per Illinois Supreme
Court Rule 651(c) (eff. July 1, 2017). In that certificate, counsel confirmed that he (1) consulted
with defendant in person to ascertain his contentions of deprivation of his constitutional rights,
(2) examined the report of proceedings from the trial, and (3) made any amendments to the petition
that were necessary for an adequate presentation of defendant’s contentions.
¶ 18 The State moved to dismiss the amended petition. The State argued that trial counsel’s
decision not to call Northrup was reasonable trial strategy. And, because trial counsel was not
ineffective for failing to call Northrup to testify, appellate counsel could not be ineffective for
failing to argue trial counsel’s ineffectiveness.
¶ 19 Ruling on the State’s motion to dismiss was delayed for almost two years. During that time,
counsel attempted to locate Northrup. While recognizing that having Northrup testify at a hearing
on the State’s motion to dismiss was procedurally improper, the trial court advised both parties
that they could nevertheless call Northrup to testify. Moreover, the court noted that it had questions
for Northrup about her affidavit and her statement to investigators. In noting that it would like to
speak to Northrup, the court asserted:
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2022 IL App (2d) 200125-U“I just want to make sure I make the proper decision. Again, these postconviction
matters are important. I was the trial judge here. I want to make sure that there was no
ineffective assistance of counsel, because that would have made a difference to 12 people
if she got up here and said [defendant] wasn’t in that house, he had nothing to do with it.
He maybe paid the bills or the electric was in his name or the utilities, but that wasn’t—do
you see what I’m saying?”
¶ 20 Postconviction counsel remained unable to locate Northrup. He advised the trial court at
one point that he called her a dozen times, left voice messages, and never heard from her.
Postconviction counsel asserted that he did not know what else he could do. Although defendant
himself advised the court that he would do his best to locate Northrup, nothing indicated that he
had success.
¶ 21 On the last status date before the court ruled on the State’s motion to dismiss, the trial court
told postconviction counsel “[i]f you wish to issue a subpoena, *** I will leave that up to you, or
maybe [defendant] can make sure that she calls.” No subpoena for Northrup was issued, and she
was never found.
¶ 22 The trial court granted the State’s motion to dismiss. Regarding trial counsel’s failure to
call Northrup to testify at trial, the court determined that counsel’s decision was strategic and that
her testimony would not have changed the trial’s outcome.
¶ 23 II. ANALYSIS
¶ 24 Defendant raises two issues on appeal. He argues that (1) he made a substantial showing
that trial counsel was ineffective for failing to call Northrup to testify at trial and (2) postconviction
counsel provided unreasonable assistance when he failed to subpoena Northrup to testify at the
hearing on the State’s motion to dismiss the petition.
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2022 IL App (2d) 200125-U¶ 25 A. Ineffective Assistance of Trial Counsel
¶ 26 First we address whether defendant made a substantial showing that trial counsel was
ineffective for failing to call Northrup to testify at trial. Before addressing that issue, we observe
that defendant has not argued on appeal that appellate counsel was ineffective for failing to raise
trial counsel’s ineffectiveness on direct appeal. However, defendant did raise that claim in both his
pro se and amended postconviction petitions. Given that the issue of appellate counsel’s
ineffectiveness was raised in these petitions and any claim that appellate counsel was ineffective
rests solely on whether trial counsel was ineffective, we do not find, as the State argues, that
defendant’s claim is forfeited. See People v. Dalton, 2017 IL App (3d) 150213, ¶ 31 (rejecting
State’s argument that the defendant in postconviction proceedings forfeited claim of trial counsel’s
ineffectiveness, as the defendant raised appellate counsel’s ineffectiveness in his petition).
Moreover, we reject the State’s claim that defendant invited any error in trial counsel’s failure to
call Northrup to testify because defendant said nothing when trial counsel indicated at trial that
defendant would not be calling any witnesses. Although this court has determined that invited error
applies in collateral proceedings (People v. Kane, 2013 IL App (2d) 110594, ¶ 20), a defendant
may bypass the bar of the invited-error doctrine if he alleges trial counsel’s ineffectiveness (see
People v. Lewis, 2019 IL App (4th) 150637-B, ¶¶ 82-84). Here, defendant argues that trial counsel
was ineffective and the claim has been properly presented for our review.
¶ 27 We now turn to the merits of defendant’s claim. “The Act provides a three-stage
mechanism for a defendant to advance a claim of a substantial deprivation of constitutional rights.”
People v. McGee, 2021 IL App (2d) 190040, ¶ 28. This appeal concerns a second-stage dismissal.
¶ 28 At the second stage of postconviction proceedings, “an indigent defendant is entitled to
appointed counsel, the petition may be amended, and the State may answer or move to dismiss the
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2022 IL App (2d) 200125-Upetition.” People v. Yawarski, 2014 IL App (2d) 130327, ¶ 5. “ ‘If the State moves to dismiss, the
trial court may hold a dismissal hearing, which is still part of the second stage.’ ” McGee, 2021 IL
App (2d) 190040, ¶ 29 (quoting People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009)). “To survive
dismissal, the petition must make a substantial showing of a constitutional violation.” Id. (citing
People v. Edwards, 197 Ill. 2d 239, 246 (2001). “The trial court is precluded from engaging in any
fact-finding or credibility determinations at this stage because ‘[a]ll well-pleaded factual
allegations not positively rebutted by the trial record must be taken as true for purposes of the
State’s motion to dismiss.’ ” Id. (quoting People v. Sanders, 2016 IL 118123, ¶ 42). “ ‘The Act
contemplates that such [fact-finding and credibility] determinations will be made at the evidentiary
stage, not the dismissal stage, of the litigation.’ ” Id. (quoting People v. Dupree, 2018 IL 122307,
¶ 29). The “substantial showing of a constitutional violation that must be made at the second stage
is ‘a measure of the legal sufficiency of the petition’s well-pled allegations of a constitutional
violation, which if proven at an evidentiary hearing, would entitle petitioner to relief.’ ” Dupree,
2018 IL 122307, ¶ 29 (quoting People v. Domagala, 2013 IL 113688, ¶ 35). “ ‘Where, as here, the
circuit court dismisses a defendant’s postconviction petition at the second stage after finding no
substantial showing of a constitutional deprivation has been made, review of the dismissal is
de novo.’ ” McGee, 2021 IL App (2d) 190040, ¶ 29 (quoting Dupree, 2018 IL 122307, ¶ 29).
¶ 29 Defendant argues that he made a substantial showing in his amended petition that his trial
counsel was ineffective and appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness. To prevail on a claim of ineffective assistance of either trial or appellate counsel,
a defendant must satisfy the two-pronged test from Strickland v. Washington, 466 U.S. 668 (1984).
People v. Golden, 229 Ill. 2d 277, 283 (2008) (two-pronged Strickland test applies to claims of
ineffective assistance of appellate counsel); McGee, 2021 IL App (2d) 190040, ¶ 30. “Specifically,
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2022 IL App (2d) 200125-U‘a defendant must prove [(1)] that defense counsel’s performance fell below an objective standard
of reasonableness and [(2)] that this substandard performance created a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.’ ” McGee, 2021
IL App (2d) 190040, ¶ 30 (quoting People v. Graham, 206 Ill. 2d 465, 476 (2003)). “To review
the second-stage dismissal of a petition alleging a Strickland violation, we determine whether
defendant made a substantial showing under the two-pronged ineffectiveness test.” Id. In doing
so, we may conclude that counsel was not ineffective based solely on the fact that there is no
reasonable probability that the outcome would have been different, i.e., that the defendant was not
prejudiced. See People v. Patterson, 2014 IL 115102, ¶ 87 (ineffective-assistance claims may be
decided on prejudice prong alone).
¶ 30 Defendant argues that his trial counsel was ineffective for failing to call Northrup to testify
at his trial. “[C]ounsel’s decision regarding whether or not to present a particular witness is
generally a matter of trial strategy.” People v. Tate, 305 Ill. App. 3d 607, 612 (1999). However,
even strategic decisions must be reasonable. People v. Cleveland, 2012 IL App (1st) 101631, ¶ 60.
“[C]ounsel may be deemed ineffective for failure to present exculpatory evidence of which he is
aware, including the failure to call witnesses whose testimony would support an otherwise
uncorroborated defense.” Tate, 305 Ill. App. 3d at 612. All of that said, “ ‘[o]nly if counsel’s trial
strategy is so unsound that he entirely fails to conduct meaningful adversarial testing of the State’s
case will ineffective assistance of counsel be found.’ ” People v. Peterson, 2017 IL 120331, ¶ 80
(quoting People v. Perry, 224 Ill. 2d 312, 355-56 (2007)).
¶ 31 Defendant claims that trial counsel’s decision not to call Northrup to testify at trial cannot
be deemed reasonably strategic. In making this argument, defendant notes that “trial counsel’s
defense theory was that 922 Church Street was [his] brother’s house, and that [defendant] simply
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2022 IL App (2d) 200125-Uvisited there and helped with the bills.” Defendant contends that, without Northrup’s testimony,
the defense’s theory was uncorroborated. Moreover, defendant argues that he was prejudiced when
counsel failed to call Northrup, as there is a reasonable probability that the jury would not have
found him guilty if it had heard from Northrup. To support his contention, defendant argues that
“[t]he judge [for the postconviction proceedings] stated that he had presided over the trial, and he
believed it would have made a difference to the jury if Northrup had gotten on the stand to testify
that [defendant] did not live in the house and maybe just helped his family pay the bills.” (Emphasis
in original.)
¶ 32 Although we believe that trial counsel’s decision not to call Northrup to testify was
objectively reasonable given counsel’s concerns about Northrup’s demeanor, ability to remember
the events, and credibility on cross-examination (see, e.g., People v. Flores, 128 Ill. 2d 66, 106
(1989) (counsel’s failure to call witness is not ineffective assistance if counsel believed that that
testimony would be unreliable)), our focus is on the fact that defendant was not prejudiced when
Northrup was not called to testify. That is, we cannot conclude that testimony that defendant lived
with Northrup—coupled with explanations for why defendant’s car was parked at 922 Church
Street and ComEd communicated with defendant and not his brother—would have changed the
jury’s conclusion that defendant constructively possessed the guns found in the first-floor
apartment.
¶ 33 On that issue, we find instructive People v. Birge, 137 Ill. App. 3d 781 (1985), and People
v. Luetkemeyer, 74 Ill. App. 3d 708 (1979). In Luetkemeyer, the defendant was convicted of
unlawful possession of more than 500 grams of cannabis. Luetkemeyer, 74 Ill. App. 3d at 709. At
issue on appeal was whether the defendant constructively possessed the cannabis. Id. at 713. The
appellate court determined that he did. Id. at 714. In so finding, the appellate court noted that,
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2022 IL App (2d) 200125-Ualthough the “defendant did not occupy the residence in question as his principal place of abode
for at least six months prior to the date the contraband was seized,” other evidence established that
the defendant had control over the premises. Id. For example, the defendant leased the premises,
paid the electric bills for the home, left furniture and personal effects in the premises, and made
repairs to the home. Id. Moreover, at least one other person knew that the defendant occupied the
home on a part-time basis. Id.¶ 34 Similarly, in Birge, the defendant was also convicted of unlawful possession of more than
500 grams of cannabis. Birge, 137 Ill. App. 3d at 783. The defendant was not found in the home
when the police executed a search warrant for the cannabis, he was not the homeowner, he did not
lease the premises, he did not pay the utilities, he received no mail at the home, and two recent
fishing licenses found in the home listed a different address for the defendant. Id. at 783, 785-87.
However, other evidence established that he had sufficient control over the premises. Specifically,
the defendant had been at the home the day before the search warrant was executed, the defendant’s
Firearm Owner’s Identification card was found on the premises, several documents listed the home
as the defendant’s address, and the defendant admitted to the police that the home was his
residence. Id. at 785-87. In finding that the evidence of constructive possession was sufficient to
establish the defendant’s guilt, the appellate court noted that “[t]he mere fact that [the] defendant
here may have periodically lived elsewhere does not critically impeach evidence of his
possession.” Id. at 791.
¶ 35 Given Luetkemeyer and Birge, we cannot conclude that defendant was prejudiced when
trial counsel decided not to call Northrup to testify at trial. That is, we cannot conclude that calling
Northrup to testify would have “ ‘created a reasonable probability that *** the result of the
proceeding would have been different.’ ” McGee, 2021 IL App (2d) 190040, ¶ 30 (quoting
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2022 IL App (2d) 200125-UGraham, 206 Ill. 2d at 476). Both Luetkemeyer and Birge stand for the proposition that constructive
possession can be established even if the defendant does not live exclusively in the home where
the contraband was seized. As in Luetkemeyer and Birge, several documents with defendant’s
name on them were found in the first-floor apartment at 922 Church Street, which is where the
guns were located. These documents included a ComEd bill, a letter from ComEd, an uncashed
check, and a Social Security card, all of which were found in the first-floor bedroom where two
rifles were located. Moreover, two letters addressed to defendant at other locations were found in
the living room, and defendant’s car was parked outside the home and in the driveway on the two
consecutive days the police visited 922 Church Street. Although Northrup explained that
defendant’s car was there because it had broken down and that defendant’s name was on
correspondence from ComEd because defendant was paying the ComEd bills for his brother who
lived there, even Northrup attested that defendant was “often” at 922 Church Street. Evidence of
the documents found in the first-floor apartment confirms that fact.
¶ 36 Moreover, even if we do not consider the car or the communications with ComEd,
defendant’s actions and his possessions found throughout the first-floor apartment suggest that he
had control over the premises. Specifically, defendant was at the home the day before the incident,
he twice admitted to the police that he lived at 922 Church Street, his mail was found in the living
room of the first-floor apartment, and (again) defendant’s Social Security card and an uncashed
check were found in the dresser in the first-floor bedroom. A Social Security card, like an uncashed
check, is an item that a person would keep in a place he lived. See People v. Piper, 101 Ill. App.
3d 296, 300-01 (1981) (citing United States v. Johnson, 431 F.2d 441, 447 (5th Cir. 1970)
(Godbold, J., dissenting)) (recognizing that a Social Security card and bank checks are types of
items one keeps on one’s person or in one’s home). All of that said, even if this evidence did not
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2022 IL App (2d) 200125-Uestablish 922 Church Street as defendant’s residence, it certainly established that defendant lived
there at least periodically or, at a minimum, had control over the first-floor apartment. Because, at
a minimum, the evidence indicated that defendant had control over the first-floor apartment,
defendant was not prejudiced when Northrup, who also attested that defendant was frequently at
922 Church Street, was not called at trial.
¶ 37 In reaching this conclusion, we must comment on defendant’s claim that the trial court
stated that Northrup’s testimony would have made a difference at trial. First, that is not exactly
what the trial court said. The court stated that it wanted to hear from Northrup because it could
make a difference to the jury “if she got up here and said he [(defendant)] wasn’t in that house, he
had nothing to do with it.” (Emphases added.) Second, even assuming that the trial court’s
statement was more vague, as defendant suggests, the statement was made before the trial court
ruled on the State’s motion to dismiss. Obviously, given that the trial court granted the State’s
motion to dismiss, it ultimately did not believe that Northrup’s testimony would have made a
difference in the outcome of the trial, and we agree with that determination.
¶ 38 Because there is no reasonable probability that Northrup’s testimony would have changed
the outcome of the trial, we cannot conclude that trial counsel was ineffective for failing to call
her to testify. See Patterson, 2014 IL 115102, ¶ 87. This is fatal to defendant’s claim that appellate
counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal. As
defendant failed to make a substantial showing that trial counsel was ineffective, he cannot claim
that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness. See People
v. Childress, 191 Ill. 2d 168, 175, (2000) (unless there is merit to a defendant’s claim that his trial
counsel was ineffective, a defendant is not prejudiced when appellate counsel fails to raise trial
counsel’s ineffectiveness on direct appeal).
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2022 IL App (2d) 200125-U¶ 39 B. Unreasonable Assistance of Postconviction Counsel
¶ 40 We now consider whether postconviction counsel provided unreasonable assistance. Rule
651(c) standardizes what constitutes reasonable assistance from attorneys representing defendants
at the second and third stages of postconviction proceedings. People v. Zareski, 2017 IL App (1st)
150836, ¶ 51. It provides that, when a defendant appeals from an adverse decision in a
postconviction petition, the record filed in the appellate court
“shall contain a showing, which may be made by the certificate of [the defendant’s]
attorney, that the attorney has consulted with [the defendant] by phone, mail, electronic
means or in person to ascertain his or her contentions of deprivation of constitutional rights,
has examined the record of the proceedings at the trial, and has made any amendments to
the petitions filed pro se that are necessary for an adequate presentation of [the defendant’s]
contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
When the record demonstrates that counsel did not comply with Rule 651(c), the trial court’s
decision will be automatically reversed and the cause remanded for compliance with the rule.
People v. Suarez, 224 Ill. 2d 37, 51-52 (2007). That is, the defendant need not show prejudice from
counsel’s failure to comply with Rule 651(c). Id. We review de novo whether postconviction
counsel provided reasonable assistance. People v. Blanchard, 2015 IL App (1st) 132281, ¶ 15.
¶ 41 Here, the record shows that postconviction counsel complied with Rule 651(c). Counsel’s
651(c) certificate was attached to the amended postconviction petition that counsel prepared and
filed. In the certificate, counsel indicated that he (1) consulted with defendant in person about
defendant’s claims of constitutional violations, (2) examined the report of proceedings from the
trial, and (3) made any amendments to the petition that were necessary for an adequate presentation
of defendant’s contentions.
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2022 IL App (2d) 200125-U¶ 42 Although defendant acknowledges that postconviction counsel’s certificate complied with
Rule 651(c), defendant argues that “under the unique facts of this case, this Court should find that
[postconviction] counsel nonetheless performed unreasonably where he failed to present Northrup
in person at the hearing on the State’s motion to dismiss where the court gave him the opportunity
to do so.” In making this argument, defendant observes that trial counsel may be ineffective for
failing to subpoena witnesses. See, e.g., People v. Irvine, 379 Ill. App. 3d 116, 130 (2008)
(“Generally, an attorney cannot be found to have made decisions based on valid trial strategy where
he or she fails to conduct a reasonable investigation, fails to interview witnesses, and fails to
subpoena witnesses.” (Emphasis in original.)); People v. Makiel, 358 Ill. App. 3d 102, 107 (2005)
(same).
¶ 43 We cannot conclude that postconviction counsel provided unreasonable assistance for
failing to subpoena Northrup. First, the cases defendant cites are inapplicable, as the issue there
was trial counsel’s, not postconviction counsel’s, failure to subpoena witnesses. Second, even if
postconviction counsel can be deemed to have provided unreasonable assistance by failing to take
the extraordinary step to subpoena Northrup to testify at the hearing on the State’s motion to
dismiss—which the Act does not allow at the second stage (see McGee, 2021 IL App (2d) 190040,
¶ 29)—we question whether Northrup would have appeared in court. The record reveals that,
before defendant’s trial, several subpoenas were issued for Northrup’s appearance. Most of those
subpoenas were returned unserved because the sheriff could not locate her. The failure to locate
Northrup continued during the trial, post-trial, and postconviction proceedings. Postconviction
counsel repeatedly attempted to contact her but failed. Even when defendant became directly
involved and attempted to find Northrup, he, too, was unsuccessful. Courts have held that trial
counsel cannot be ineffective for failing to subpoena witnesses that cannot be found (see, e.g.,
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2022 IL App (2d) 200125-UUnited States v. Vidales, 143 F. Appx. 52, 53 (9th Cir. 2005) (“An attorney’s failure to locate an
exculpatory witness does not constitute ineffective assistance of counsel when evidence indicates
the witness is in hiding.”); Humphrey v. McCotter, 675 F. Supp. 1043, 1046-1047 (S.D. Tex.
1987), rev’d on other grounds by Humphrey v. Lynaugh, 861 F.2d 875 (5th Cir. 1988)
(“[C]ounsel’s failure to subpoena a witness he could not find and whose testimony could be suspect
was not unreasonable.”). Given the foregoing, we simply cannot conclude that postconviction
counsel—whose performance is judged at a lower standard than that of trial or appellate counsel
(see People v. Custer, 2019 IL 123339, ¶ 30)—provided unreasonable assistance when he did not
subpoena Northrup to testify at the second-stage hearing on the State’s motion to dismiss the
amended petition.
¶ 44 III. CONCLUSON
¶ 45 For the above reasons, we affirm the judgment of the circuit court of Winnebago County.
¶ 46 Affirmed.
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