People v. Nowlin , 2021 IL App (4th) 190851-U ( 2021 )

NOTICE 2021 IL App (4th) 190851 FILED
This Order was filed under December 8, 2021
Supreme Court Rule 23 and is
NO. 4-19-0851 Carla Bender
not precedent except in the
limited circumstances allowed
4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
MISOOK NOWLIN, ) No. 11CF800
Defendant-Appellant. )
) Honorable
) J. Casey Costigan,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.
ORDER
¶1 Held: (1) The circuit court did not err in finding defendant failed to make a substantial
showing the State knowingly presented the perjured testimony of a witness.
(2) Defendant was denied a reasonable level of representation during
proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2014)).
¶2 Defendant, Misook Nowlin, appeals the circuit court’s dismissal of her
postconviction petition without an evidentiary hearing. On appeal, defendant argues (1) the
circuit court erroneously dismissed her petition as she made a substantial showing the State
knowingly presented the perjured testimony of a witness, Tonya Bean, during defendant’s trial;
and (2) she was denied the reasonable assistance of postconviction counsel as counsel failed to
properly present her perjury claim and obtain an affidavit from a witness for the claim added by
appointed counsel. We agree with defendant’s latter claim of error and reverse and remand.
¶3 I. BACKGROUND
¶4 In September 2011, defendant was charged with three counts of first degree
murder of her mother-in-law, Wenlan Linda Tyda, (720 ILCS 5/9-1(a)(1), (a)(2) (West 2010))
and one count of concealment of homicidal death (720 ILCS 5/9-3.4(a) (West 2010)). The State
alleged on or about September 5, 2011, defendant knowingly and without lawful justification
killed Wenlan, a person over 60 years of age, by applying pressure to her neck and then
knowingly concealed her death with knowledge Wenlan died by homicidal means.
¶5 A. Defendant’s Trial
¶6 At the start of defendant’s December 2012 jury trial, defendant pleaded guilty to
the concealment charge. The trial continued on the first degree murder charges.
¶7 Defendant’s jury trial proceeded over multiple days in December 2012. The
evidence establishes defendant, in 2011, lived in Bloomington, Illinois, with her husband, Don
Wang, and their young son, D.W. Defendant owned a sewing shop, Kim’s Sewing, in
Bloomington. Wenlan resided in Crest Hill, Illinois, located in Will County. Wenlan was 70
years old and self-employed “in freelance translation.”
¶8 The State’s theory of the case was defendant killed Wenlan for the money.
Defendant and Wang had been married approximately 13 years. In 2011, defendant suspected
Wang was having an affair with Jenny Chen, who worked for Wenlan and was very close to
Wenlan. As part of her business, Wenlan would often travel. On September 4, 2011, Wenlan
received a phone call. The individual on the line spoke Mandarin and asked Wenlan to meet her
at 5:30 a.m. at the Cub Foods’ parking lot, as she needed a ride to Chinatown in Chicago. The
woman offered Wenlan $500. That same day, Wenlan drove Wang to the airport, as he was
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flying to California to renew his driver’s license. Wenlan told Wang about the meeting. After
Wenlan did not return home that day, her husband contacted the Crest Hill police. Bloomington
police officers began contacting individuals Wenlan knew in Bloomington, including defendant.
Testimony establishes defendant went to Hibachi Grill, asking for someone who spoke Mandarin
to make a phone call for her. Defendant gave $20 to the woman who made the call for her.
¶9 In the investigation of Wenlan’s disappearance, police officers learned defendant
drove Wenlan’s car to Chicago and parked it near Midway Airport. They also learned defendant
took a Peoria Charter bus to Normal, Illinois, and a cab to her business. Officers further
discovered defendant purchased, around 10 a.m. on September 6, 2011, a 50-gallon tub. After 6
p.m., defendant returned to Lowe’s and purchased a shovel and furniture sliders.
¶ 10 When talking to the police, defendant denied the phone call and going to Hibachi
Grill. Injuries were observed on defendant’s arms, legs, and chest. Defendant said her son
scratched her and she had fallen at work.
¶ 11 After being taken into custody, defendant wrote a letter to her adult daughter,
Michelle Nowlin. Defendant admitted in that letter luring Wenlan to Bloomington but she did so
to try to get Wenlan on her side to repair her marriage. Defendant wrote she knew Wenlan was
angry with her and would not talk to her if she made the call herself. Defendant further told
Michelle that Wenlan followed her from Cub Foods to the shop, where they fought and struggled
outside until defendant grabbed Wenlan by her neck and choked her until she stopped. Defendant
said she attempted to resuscitate Wenlan but could not. Then, defendant reported dragging
Wenlan into the shop and keeping her there for a day or so.
¶ 12 Wenlan’s husband, Larry Tyda, testified to a conversation he overheard between
defendant and Wenlan days before Wenlan’s disappearance. Defendant and Wenlan were
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arguing on the phone. While they were arguing, the doorbell rang. Defendant was standing
outside the house. She wanted to talk to Wenlan. Wenlan told her husband she was afraid of
defendant. Defendant left after Larry threatened to call the police.
¶ 13 Wenlan’s body was found on September 12, 2011, off Interstate 55, exit 241, in a
shallow grave. The clothes from Wenlan had been removed, her identification removed, and she
was buried in two black garbage bags. The cause of death was strangulation. The coroner
testified manual strangulation usually causes a person to lose consciousness within 10 to 15
seconds and causes death in three to six minutes.
¶ 14 During defendant’s jury trial, the State called Tonya Bean to testify. At the
beginning of her testimony, Bean admitted having been convicted, in 2008, of felony driving
while her license was revoked. In December 2011, Bean was incarcerated in McLean County jail
on a charge of aggravated battery with a deadly weapon. Another case for aggravated battery was
also pending at that time. During her time in jail, Bean interacted with other inmates, including
defendant. Bean met defendant during the two and a half months they were incarcerated. Bean
had not met defendant before that time. Bean and defendant were in the same pod, a common
area for inmates.
¶ 15 Bean testified defendant told her about the events of September 4, 2011. On
September 4, defendant talked to an employee at Imperial Buffet. Defendant told Bean she went
to “Imperial Garden” because she was very upset with her husband. Defendant wanted to go
there to get him fired. When defendant went to the restaurant, she spoke with a woman who
worked there and offered her $20 to call her mother-in-law, pretend she needed an interpreter,
and tell her to meet her at Cub Foods in Bloomington at 5:30 a.m. the next day. Defendant told
Bean she wanted to meet Wenlan at Cub Foods “to pretty much confront her about things, about
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what was going on with her and her husband’s marriage.” Defendant said her husband was
cheating and he would be in California on September 5, 2011. Defendant worried they would get
divorced.
¶ 16 According to Bean, defendant said she took $10,000 from a joint account she
shared with Wang and Wenlan. Defendant did so because she was afraid Wang would leave her
and she would have no money. Defendant met Wenlan at Cub Foods at 5:30 a.m. on September
5, 2011. The two argued because “it was kind of like a set up.” Defendant told Wenlan she had
two checks for her but did not want to argue at Cub Foods. The two went across the street to
defendant’s business. When the two exited their vehicles, they argued about the marriage again
and “the situation of Jenny.” Once inside defendant’s business, “they got physical.” Defendant
told Bean the following about the strangulation: “[Defendant] started choking her mother-in-law
and her mother-in-law started choking her back and *** her mother-in-law was trying to say
something and she kind of let her loose and she said I just wish you and Don would get back
together, you know, and be happy. And she just started choking her and killed her.”
¶ 17 Defendant told Bean she got a plastic tub with a lid on it, put Wenlan’s body in
the tub, and placed the tub in the back of her store. While this was occurring, D.W. was sleeping
in the back of defendant’s car. The tub remained in defendant’s store for about a day. It began to
smell “like rotten eggs.” Defendant called a friend to help move a tub “of dishes” into the back
of defendant’s car. Defendant then drove to Chicago to Chen’s house to see if Wang and Chen
were there. Defendant “had a rubber mallet and she said that she was going to knock them out.”
However, Wang and Chen were not there, and defendant began to panic. Defendant began
driving back to Bloomington. She looked for a “dark exit,” where she turned off and found a
wooded area. Defendant had a shovel she bought from Lowe’s and dug a hole. When defendant
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removed the tub from her car, she fell and scraped her knees. Defendant buried Wenlan.
Defendant confided Wenlan had a $250,000 life insurance policy and defendant believed,
whether married or divorced, she would be entitled to some of the money.
¶ 18 Bean testified her conversation with defendant upset her. Bean returned to her cell
and began to write down everything she could remember from her conversation with defendant.
Bean then asked to speak to the police as soon as possible. On December 22 or 23, Bean met
with Detective Barkes from the Bloomington Police Department. Bean told Detective Barkes
about her conversation with defendant. Her notes were entered into evidence. The day after
Bean’s conversation with Detective Barkes, she attended a hearing to lower her bond on the
charge of aggravated battery with a deadly weapon. The State did not object to her motion as a
favor to her. Bean posted bond. Her case remained pending and was set for trial. On the day trial
was to begin, the State dropped the charges due to an uncooperative victim, Bean’s fiancé.
¶ 19 Defendant’s theory of the case was that she was acting in self-defense and the
asphyxiation was unintentional.
¶ 20 Testifying on her own behalf, defendant stated she and Wang married in 2003.
D.W. was born in 2006. In May 2011, defendant learned of Wang’s relationship with Chen.
Defendant learned of phone conversations the two were having. The two talked 300 to 400
minutes every day. This started in 2010, she believed. Defendant was afraid of what would
happen to her and D.W. should her marriage fall apart as she had only $200. The day after she
learned of the affair, she went to the bank and withdrew all the money from the joint bank
account she shared with Wenlan and Wang. The two decided to stay together, but approximately
a month later, defendant learned from a hostess at Imperial Buffet, where Wang worked, that
Wang and Chen continued to have a relationship.
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¶ 21 According to defendant, she met with Wang’s boss, Raymond Poon, who was
good friends with Wenlan and Wang. Defendant told Poon of her marital problems and Wang’s
cheating. She also told him she wanted $50,000, child support, and alimony as part of a divorce
settlement. Defendant told Poon she did not want defendant working at Imperial Buffet as Wang
had been stealing money from the restaurant and receiving an unemployment check from
California. Defendant was hoping if Wang lost his job, they would return to California together.
¶ 22 Defendant testified Wenlan called about Wang losing his job. Wenlan was very
angry. Defendant denied Wang had been fired. Poon had told him to take care of his marriage
and then return to work. Defendant attempted to call Wenlan multiple times but Wenlan refused
to talk to her. Defendant attempted to visit her at her home. When Wenlan answered defendant’s
calls, Wenlan would not listen. She yelled and screamed at defendant.
¶ 23 Defendant explained she went to Hibachi Grill to find someone to call Wenlan
because Wenlan, who was “so mad,” would not talk to defendant. When Wenlan arrived at Cub
Foods, she was surprised to see defendant and upset she had been tricked. Defendant told
Wenlan she wanted to go to Chicago with D.W. and Wenlan and they could talk about “things.”
Defendant wanted Wenlan’s help. Wenlan remained angry. Wenlan left Cub Foods first.
Defendant returned to her shop so D.W. could sleep on the futon. While there, defendant was
happy to see Wenlan pull into the parking lot. Defendant was hopeful Wenlan was there to help
her. Defendant went to Wenlan’s car and attempted to hug her. Wenlan pushed defendant and
pushed her again. When defendant fell, Wenlan picked up defendant’s shoes and began striking
defendant in the head with them. The two fought in the parking lot. Wenlan was wearing “a big
sweater” and had a pocketbook. After Wenlan held onto defendant’s leg, defendant held very
tightly to Wenlan. She twisted her clothing. Wenlan started to choke defendant. At one point,
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defendant was on top of Wenlan. Wenlan stopped fighting. Defendant believed Wenlan passed
out. Defendant did not know Wenlan had died.
¶ 24 According to defendant, she attempted to resuscitate Wenlan. Defendant did not
call 911 because she could not believe what had happened and she was scared.
¶ 25 The jury found defendant guilty of first degree murder. The trial court sentenced
defendant to consecutive prison terms of 50 years for first degree murder and 5 years for
concealment. Defendant pursued direct appeals of both convictions. Regarding her first degree
murder conviction, defendant argued she was entitled to a new trial as the trial court “allowed the
prestige of the State’s Attorney’s office to artificially enhance Detective Barkes’s credibility as a
witness” by allowing him to sit at the State’s table during trial. People v. Nowlin, 2015 IL App
(4th) 130387-U, ¶¶ 3, 17. We affirmed defendant’s murder conviction. Id. ¶ 37. Regarding the
concealment conviction, defendant argued her guilty plea must be vacated due to the trial court’s
failure to admonish her sentences would run consecutively. People v. Nowlin, 2017 IL App (4th)
150957-U, ¶ 2. Because defendant did not file a motion to withdraw her guilty plea, we lacked
jurisdiction to consider defendant’s claim. Id. ¶ 15.
¶ 26 B. Pro Se Postconviction Petition
¶ 27 In September 2015, defendant filed a pro se petition under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)), asserting multiple claims. Among the
claims in her petition were allegations she was denied the effective assistance of counsel as
counsel failed to present photographs of her injuries during trial and advised her improperly of
the sentencing ranges for her alleged crimes. Defendant further asserted she was denied due
process when the trial court denied her request for an interpreter, her husband testified falsely,
and “the State knowingly used the perjured testimony during her trial to secure a conviction.”
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For that last claim, defendant identified Bean as the witness who provided the perjured
testimony. In support of the perjury claim, defendant attached an affidavit signed by Tonya
Findley. The affidavit states the following, in part:
“I[,] Tonya Findley, being duly sworn under oath, do
hereby depose and state that the following is true and correct to the
best of my knowledge:
1. The information contained herein[ ] is based upon my
personal knowledge.
2. If sworn as a witness, I am competent to testify to the
matters herein.
3. I have not been threatened, forced, or promised anything
in exchange for providing this affidavit.
4. In 2011[,] I met [defendant] in Mc[L]ean County Jail,
and she had bruises that were blue and dark purple around her
neck[,] as if someone had tried to kill her.
5. I asked her what happened to her and she stated to me
that she got into an argument with her mother-in-law, and that her
mother[-]in[-]law started choking her.
6. I left Mc[L]ean County [on] October 6, 2011[,] and was
in Chestnut [T]reatment Center.
7. In 2013, I returned to Mc[L]lean County Jail for a “dirty
drop” and was mandated to do drug treatment.
8. While in Mc[L]ean County[,] I was living on the same
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block with Tonya Bean who testified against [defendant].
9. I had heard rumors that Tonya testified against
[defendant], so I asked Tonya what happened.
10. Tonya stated that she never liked [defendant,] so she
contacted the [S]tate and asked if she gave them information
against [defendant], would they drop her (Tonya’s) charges.
11. Tonya Bean stated that she was told by the [S]tate that
if she could provide them with any information against
[defendant], she could go home.
12. Tonya Bean stated to me that [defendant] never told her
that she wanted to kill or have a violent confrontation with her
mother-in-law.
13. Tonya Bean stated to me that most of her testimony was
information the states attorney [sic] told her to say.
14. Tonya Bean also stated that she got information about
[defendant’s] case from the news and having family/friends look
up [defendant’s] case via [the] internet.
15. I have specific knowledge and information, personal
knowledge that Tonya Bean committed perjury when she testified
against [defendant] and that the prosecutor knew she was not being
truthful.”
¶ 28 On November 30, 2015, the trial court advanced the petition to the second stage
of postconviction proceedings and appointed counsel to represent defendant.
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¶ 29 C. Amended Postconviction Petition
¶ 30 On September 22, 2017, at a status hearing, counsel, Assistant Public Defender
Jeff Brown, informed the circuit court he had just been “reassigned this case last week.” In
December 2017, Brown filed on defendant’s behalf an amended postconviction petition. In this
amended petition, counsel presented two claims for postconviction review. In the first claim,
defendant argued her due process rights were violated when the State presented false testimony
by Bean that “could in any reasonable likelihood have affected the judgment of the jury.” The
petition alleged, in part, Bean obtained information about defendant’s case from the news and
family and friends, as well as from prosecutors in the case. Counsel attached to the amended
petition the Findley affidavit. In the second claim in the amended petition, a claim not relevant
here, defendant argued she was denied due process as she entered a guilty plea in exchange for
an agreed-upon sentence but received a more onerous sentence than agreed upon.
¶ 31 On January 24, 2018, Assistant Public Defender Ronald Lewis filed a motion
seeking to allow the McLean County Public Defender’s Office to withdraw as defendant’s
counsel. Lewis asserted he had been assigned the case. Lewis asserted the McLean County
Public Defendant’s Office had a conflict of interest as a member of that office had defended
defendant at her trial and claims of ineffective assistance had been raised. The circuit court
denied the motion, finding no conflict of interest with the “contract attorneys” for the public
defender’s office. Later, however, the circuit court allowed the public defender’s office to
withdraw and appointed “an attorney from McLean County who is in private practice” to
represent defendant. On June 8, 2018, the circuit court appointed attorney Joshua Rinker as
counsel to represent defendant on her postconviction petition.
¶ 32 D. Second Amended Postconviction Petition
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¶ 33 On March 12, 2019, defendant, represented by Rinker, filed a second amended
postconviction petition, asserting three arguments: (1) defendant’s right to due process was
violated when the State presented the false testimony of Bean and the testimony contributed to
her conviction; (2) defendant’s rights to due process and fundamental fairness were violated
because, at the time of her guilty plea to concealment, defendant was not advised of the
consecutive nature of her sentences; and (3) defendant was denied the effective assistance of
counsel when trial counsel failed to investigate or call her neighbor, Ana L. Glanaras, to testify
in support of defendant’s claim of self-defense. As to the last claim, defendant argued she
informed trial counsel of a witness, her neighbor Glanaras, who saw defendant “just after the
alleged incident when the bruising would have been more pronounced.” Defendant asserted trial
counsel failed to investigate or call Glanaras regarding this bruising. In support of this new
claim, defendant attached an affidavit she signed. The second amended postconviction petition
included Findley’s affidavit.
¶ 34 In May 2019, the State moved to dismiss defendant’s postconviction petition. The
State argued, in part, defendant failed to allege facts showing the State knew Bean’s testimony
was false and defendant’s ineffective-assistance-of-counsel claim failed as it was contradicted by
the record and defendant failed to attach an affidavit from Glanaras.
¶ 35 In a written filing in response to the motion, defendant argued all well-pleaded
allegations and the affidavit testimony must be taken as true. Defendant further argued, “[t]he
mere fact that Tonya Bean made these statements to Findley is impeachable evidence which
could have been used by trial counsel to undermine the credibility of Tonya Bean’s testimony”
during trial. As to the claim regarding Glanaras, defendant cited People v. Dupree, 2018 IL
122307, ¶ 34, 124 N.E.3d 908, as showing there is no bright-line rule requiring an affidavit in all
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instances where this type of claim is raised.
¶ 36 A hearing was held on the State’s motion to dismiss. At the hearing, defense
counsel Rinker stated the following:
“Your Honor, I think that the—looking first to the issue—I
guess I’m calling issue one, about the affidavit or lack thereof from
the various Tonyas in the case. I will admit it gets confusing. We
have an affidavit from one entity or one party here who says, Hey,
somebody else told me they actually lied when they testified
during the course of their trial. I guess what we’re arguing to the
Court is that whether or not that actually is true, that they did lie
when they testified during the course of the trial, it is impeachable
evidence that the defense attorney during the course of the trial
could have used to impeach the credibility of that witness through
cross-examination. And I think that that is a distinction that’s
important here because if we are going to take at this stage of the
proceedings Tonya Findley’s affidavit as true, then it is
impeachable evidence on Tonya Bean’s truth and veracity, whether
or not Tonya Bean was being truthful when she said that.”
The circuit court specifically asked defense counsel about the State’s argument there was nothing
in the affidavit to establish the State had knowledge of Bean’s alleged perjury. To that, defense
counsel responded:
“The [timeline] here would suggest that this affidavit came
out after trial counsel could have even known that this affidavit
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existed. So how can she raise an ineffective assistance of counsel
claim against the trial attorney for not having brought this witness
forward when he didn’t know that the witness existed. So we
uncovered the existence of this affidavit after that consideration
would have come about. I think we can all agree that if it’s taken
as truth, it’s certainly impeachable evidence. It would have been
something that could have been used by trial counsel during the
course of cross-examination to impeach the credibility of that
witness and that that would have been important evidence for my
client or for her benefit.
***
And I’m circling back to the answer to the Court’s question
which is, our position here today I think must be that to require my
client at this stage to prove that the State knew that that was false
testimony is not what we are asking the Court to do. We don’t
think the Court has to do that. It would be our position that the
existence of this affidavit alone taken as truth, knowing that it
would have been impeachable evidence is sufficient. That would
be our position.”
¶ 37 As to the issue regarding Ana Glanaras’s purported testimony, defense counsel
argued there was a significant time gap between the alleged incident and when defendant was
taken into custody. Defense counsel argued Glanaras’s testimony would describe defendant’s
injuries before healing would have occurred. Defense counsel argued if Glanaras could establish
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the injuries were more pronounced or egregious, that would have corroborated defendant’s claim
of self-defense. When asked if this would be waived, defense counsel said the record does not
show Ana Glanaras was a potential witness.
¶ 38 The circuit court granted the State’s motion. The court emphasized there were no
allegations in the postconviction petitions the State knowingly used false or perjured testimony
and thus there were no facts to establish defendant’s due process rights were violated. As to her
ineffectiveness claim, the circuit court found it “refuted by the record.” The court found the
following:
“There is no affidavit as to what Ana Glanaras would
testify to only allegations by the Petitioner which, for the purposes
of this motion, the court takes as true. However, the record shows
[defendant] was able and did present evidence of self-defense at
trial. The trial judge specifically noted this in 2013 at a Krankel
hearing. At best, Glanaras[’s] testimony would be cumulative to
what was already presented. The Court does not find Defendant’s
right to effective assistance of counsel was violated for failing to
present cumulative evidence.”
¶ 39 This appeal followed.
¶ 40 II. ANALYSIS
¶ 41 A. Due Process
¶ 42 Defendant first argues the circuit court erred in granting the State’s motion to
dismiss as she made a substantial showing the State knowingly presented the perjured testimony
of Bean.
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¶ 43 The Act sets forth procedures by which a criminal defendant may assert, in the
proceedings that led to his or her conviction, there was a substantial denial of his or her
constitutional rights. 725 ILCS 5/122-1 et seq. (West 2014). A proceeding under the Act is a
collateral attack on the conviction that provides limited review of constitutional claims not raised
at trial. People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511, 518 (2004). When a defendant
files a petition under the Act, a circuit court reviews that petition and determines whether it is
frivolous or patently without merit. Id. at 203-04. Petitions that survive this review advance to
the second stage of proceedings where counsel is appointed, and an amended petition may be
filed. People v. Andrews, 403 Ill. App. 3d 654, 659, 936 N.E.2d 648, 653 (2010). In response,
the State may answer the petition or move to dismiss it. 725 ILCS 5/122-5 (West 2014). To
survive a motion to dismiss and advance to a third-stage evidentiary hearing, the defendant must
make a substantial showing a constitutional violation occurred. People v. Pendleton, 223 Ill. 2d
458, 473, 861 N.E.2d 999, 1008 (2006). “To accomplish this, the allegations in the petition must
be supported by the record in the case or by its accompanying affidavits.” People v. Coleman,
183 Ill. 2d 366, 381, 701 N.E.2d 1063, 1072 (1998). In ruling on the motion, the circuit court
must take all well-pleaded factual allegations not positively rebutted by the record as true. Id. at
380-81. We review de novo the question of whether the postconviction petition makes a
substantial showing of a constitutional violation. People v. Johnson, 205 Ill. 2d 381, 389, 793
N.E.2d 591, 597 (2002).
¶ 44 The State’s knowing use of perjured testimony to obtain a criminal conviction
violates a defendant’s constitutional right to due process. People v. Simpson, 204 Ill. 2d 536,
552, 792 N.E.2d 265, 278 (2001). “A conviction obtained by the knowing use of perjured
testimony must be set aside if there is any reasonable likelihood that the false testimony could
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have affected the jury’s verdict.” People v. Olinger, 176 Ill. 2d 326, 345, 680 N.E.2d 321, 331
(1997). To establish a constitutional violation cognizable under the Act, there must be “an
allegation of knowing use of false testimony.” People v. Brown, 169 Ill. 2d 94, 106, 660 N.E.2d
964, 970 (1995). Without an allegation of the knowing use of false testimony or lack of diligence
on the State’s part, a defendant has not shown involvement by the State to establish a violation of
due process. Id.¶ 45 In support of her claim she made a substantial showing the State “knowingly”
used perjured testimony, defendant highlights the following language in Findley’s affidavit:
“Tonya Bean stated to me that most of her testimony was information the states attorney [sic]
told her to say.”
¶ 46 We find defendant has not made a substantial showing the State knowingly used
perjured testimony. The highlighted, vague statement does not show the information provided by
the State was information that was false or the State knew to be false. According to the evidence
at trial, Bean recorded the conversation in writing an hour after it occurred and that
documentation was provided to the State. Without factual allegations regarding the content of the
information provided by the State, defendant has failed to make a substantial showing the State
provided information it knew to be false.
¶ 47 In the alternative, defendant argues the taken-as-true allegations in her
postconviction petition and supporting documentation, considered with the facts of the case,
“strongly suggest implicit knowledge on the part of the State.” Defendant points to the
statements that if Bean received knowledge from the news and her family and friends, the State
should have realized she had no more information than did the general public. Defendant
contends if Bean gathered information from conversations with the prosecutors, the State should
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have realized her testimony changed. Defendant maintains the fact Bean benefitted from
speaking to the police and the prosecution further suggests the prosecution had knowledge
Bean’s testimony was false. Defendant also emphasizes that during Bean’s testimony, Bean
misstated the name of Imperial Buffet as “Imperial Garden,” which merged the names of the two
restaurants connected to Wang (Imperial Buffet and Lucky Garden). Defendant concludes that
such a misstatement occurred randomly seemed implausible “unless the reason she confused
them was because the prosecution provided her with information involving or documents
containing both names.”
¶ 48 We are not convinced “strongly suggest” is sufficient to satisfy the
substantial-showing-of-a-constitutional-violation threshold of second-stage review. Nor are we
convinced by defendant’s long list of what-if scenarios. Without factual allegations, this string of
speculative statements is insufficient to establish implicit knowledge. The substantial-showing
threshold requires more, and defendant’s postconviction filings fail to meet that threshold.
¶ 49 B. Reasonable Assistance of Counsel
¶ 50 Defendant next argues she was denied the reasonable assistance of counsel as
counsel, despite filing a certificate averring compliance with Illinois Supreme Court Rule 651(c)
(eff. July 1, 2017), failed to properly present and support her perjury claim and failed to attach an
affidavit from the named witness in her ineffective-assistance-of-counsel claim.
¶ 51 Under the Act, appointed counsel is expected to provide reasonable assistance.
People v. Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977, 979-80 (2007). Rule 651(c) is designed to
ensure such reasonable assistance is provided to postconviction petitioners. People v. Turner,
187 Ill. 2d 406, 411, 719 N.E.2d 725, 728 (1999). That rule “requires appointed counsel to
consult with the petitioner to ascertain his contentions, examine the record of the trial
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proceedings, and make any amendments to the pro se petition necessary for an adequate
presentation of the petitioner’s complaints.” People v. Nelson, 2016 IL App (4th) 140168, ¶ 15,
49 N.E.3d 1007. The mandate counsel make necessary amendments is not limitless, however. Id.
¶ 16. For example, there is no obligation for counsel to search for sources outside the record that
may support general claims in a postconviction petition. Id. In addition, amendments to a pro se
petition that would simply further a claim that is frivolous or patently without merit are not
“necessary.” Greer, 212 Ill. 2d at 205. Appointed counsel is, however, prohibited by ethical
obligations from advancing frivolous or spurious claims. Id.¶ 52 In addition, appointed counsel must file a certificate stating he or she complied
with Rule 651(c). Ill. S. Ct. Rule 651(c) (eff. July 1, 2017). This certificate creates a presumption
the defendant received reasonable assistance. See People v. Jones, 2011 IL App (1st) 092529,
¶ 23, 955 N.E.2d 1200. A defendant may overcome that presumption by showing counsel failed
to comply substantially with the requirements of Rule 651(c). Id. The failure to comply with
Rule 651(c) cannot be remedied or excused by a finding the postconviction petition did not
contain a meritorious issue. Suarez, 224 Ill. 2d at 51-52. The analysis under Rule 651(c) is
“driven, not by whether a particular defendant’s claim is potentially meritorious, but by the
conviction that where postconviction counsel does not adequately complete the duties mandated
by the rule, the limited right to counsel conferred by the Act cannot be fully realized.” Id. at 51.
Noncompliance with the rule will not be excused as harmless error. Id.¶ 53 In this case, defendant acknowledges appointed counsel filed a Rule 651(c)
certificate but argues the record rebuts the presumption reasonable assistance was afforded.
Defendant argues the record establishes appointed counsel acted unreasonably when he failed to
present her perjury claim properly and when he failed to include evidentiary support for
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defendant’s ineffective-assistance claim.
¶ 54 The record establishes appointed counsel, in the second amended petition, added
the ineffective-assistance-of-counsel claim based on trial counsel’s failure to present testimony
from Ana Glanaras, defendant’s neighbor, regarding defendant’s injuries as they appeared “just
after the alleged incident when the bruising would have been more pronounced.” This claim did
not appear in either the pro se or the amended postconviction petitions. Appointed counsel did
not, however, include an affidavit by Glanaras.
¶ 55 The State argues no error occurred as appointed counsel is under no obligation to
add claims or affidavits to support nonmeritorious claims. The State further cites People v.
Johnson, 154 Ill. 2d 227, 241, 609 N.E.2d 304, 311 (1993), as showing a circuit court may
reasonably presume postconviction counsel made a concerted effort to obtain affidavits in
support of the postconviction claims but was unable to do so. In addition, the State argues this
was clearly a nonmeritorious claim as defendant did not mention Glanaras when the trial court
conducted a Krankel inquiry after her trial and, therefore, forfeited this claim.
¶ 56 The State’s argument is misplaced. While appointed counsel is not obligated to
add claims or affidavits to support a pro se petition’s nonmeritorious claims, appointed counsel
added this claim. If counsel was aware of his ethical obligations not to file futile or spurious
claims, appointed counsel determined this claim had merit, as he signed the second amended
petition, but then failed to provide the evidentiary support necessary to support this claim.
¶ 57 The record reveals appointed counsel’s failure to provide evidentiary support to a
claim he added may have resulted from the belief such an affidavit was unnecessary. At the
hearing on the State’s motion to dismiss defendant’s second amended petition, appointed counsel
argued he need not attach an affidavit based on the Dupree court’s refusal to adopt a bright-line
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rule requiring an affidavit in all instances where an ineffectiveness claim is raised based on trial
counsel’s failure to call a witness. Dupree, 2018 IL 122307, ¶ 34. Yet Dupree plainly establishes
“[i]n cases where a postconviction petitioner raises a claim of ineffective assistance based on
counsel’s failure to call a witness, an affidavit from the proposed witness will be required if it is
essential for the postconviction petition to make the necessary ‘substantial showing’ to support a
claim of ineffective assistance.” Id. The Dupree court acknowledged, “It may be true that in most
cases where this type of claim is raised, without an affidavit, there can be no way to assess
whether the proposed witness could have provided evidence that would have been helpful to the
defense.” Id.¶ 58 Here, without an affidavit, the circuit court could not ascertain whether a
substantial showing of a constitutional violation could be made. Appointed counsel, by not
attaching an affidavit from the witness, did not comply with Rule 651(c)’s mandate appointed
counsel provide “necessary” supporting documentation when counsel added a claim but failed to
support it with evidence. This case must be remanded for compliance with Rule 651(c).
¶ 59 We further find troubling, appointed counsel’s handing of defendant’s due
process claim. In her pro se petition, defendant explicitly alleged she was denied due process
when the State knowingly presented Bean’s perjured testimony at trial. Such a claim requires
proof the State had knowledge of the falsity of that testimony when elicited at trial. See Brown,
169 Ill. 2d at 106. Appointed counsel, who is discharged by Rule 651(c) to make “any
amendments to the petitions filed pro se that are necessary for an adequate presentation of
petitioner’s contentions,” presented the same due process claim in the second amended petition
but removed the allegation of “knowing” from defendant’s pro se petition. Then, in responding
to the State’s motion to dismiss, appointed counsel abandoned the original due process claim to
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argue defendant need not prove the State’s malfeasance but somehow should “be allowed the
opportunity to cross-examine that witness at a new trial to impeach the credibility of that
witness.” Although appointed counsel elected to proceed on a claim defendant was denied “due
process,” counsel proceeded as though the State’s conduct was irrelevant to that claim despite
the fact a violation of due process does not occur absent an involvement by the State. See Brown,
169 Ill. 2d at 106 (“In the absence of an allegation of the knowing use of false testimony, or at
least some lack of diligence on the part of the State, there has been no involvement by the State
in the false testimony to establish a violation of due process.”).
¶ 60 The State argues the decision to remove “knowing” from the original allegations
was based on the following: “[c]learly, post-conviction counsel had nothing to support a claim
that the State knowingly presented perjured testimony at trial, so [he] did not make that
allegation and took ‘knowingly’ out of the allegation that had been in the pro se petition.” If that
is the case, then appointed counsel knowingly filed a futile due process claim as counsel did not
even attempt in the drafting of the second amended petition to satisfy the elements of defendant’s
claim. Either appointed counsel failed to make necessary amendments to preserve defendant’s
pro se claim or counsel violated his ethical obligations by filing a baseless claim after
determining defendant’s claim was meritless. See generally Greer, 212 Ill. 2d at 205 (“An
attorney *** who determines that defendant’s claims are meritless cannot in good faith file an
amended petition on behalf of defendant.”).
¶ 61 While the circuit court commendably considered the allegations in all three of the
postconviction petitions filed in this case, despite not needing to do so, we cannot excuse the
absence of reasonable representation for defendant. As this court observed in People v.
Shortridge, 2012 IL App (4th) 100663, ¶ 15, 964 N.E.2d 679, “[o]ur decision here should not be
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construed as any indication of whether the allegations set forth in defendant’s petition have
merit.” Our finding “rests solely on the conduct of postconviction counsel during these
proceedings.” Id. We reverse the order dismissing defendant’s second amended petition and
conclude new counsel should be appointed to represent defendant on remand. See id. An
amended petition may be filed, and second-stage proceedings should occur.
¶ 62 III. CONCLUSION
¶ 63 We reverse the circuit court’s judgment and remand for second-stage proceedings.
¶ 64 Reversed and remanded.
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