People v. Patterson , 2022 IL App (3d) 200099-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 200099-UOrder filed October 21, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0099
v. ) Circuit No. 13-CF-1080
)
BRIAN D. PATTERSON, ) Honorable
) Kevin W. Lyons,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HAUPTMAN delivered the judgment of the court.
Justices Daugherity and Hettel concurred in the judgment.
ORDER
¶1 Held: Postconviction counsel failed to provide a reasonable level of assistance.
¶2 Defendant, Brian D. Patterson, appeals the Peoria County circuit court’s order dismissing
his postconviction petition at the second stage. Defendant argues that postconviction counsel
provided an unreasonable level of assistance because counsel failed to identify certain witnesses
referred to in the petition, support the petition with their affidavits, or explain how their
testimony would likely alter the outcome of his trial. We reverse and remand.
¶3 I. BACKGROUND
¶4 Defendant was charged with burglary (720 ILCS 5/19-1(a) (West 2012)). Prior to trial,
trial counsel filed a witness list that included Brittany Ansteatt, Angelic Brachley, and Aimee
Arnold. Both Brachley and Ansteatt were subpoenaed but only Brachley testified at trial. A jury
found defendant guilty of burglary. The circuit court sentenced defendant to 21 years’
imprisonment. Defendant filed a motion to reconsider which the court denied. Defendant
appealed and this court affirmed his conviction and sentence. People v. Patterson, 2017 IL App
(3d) 150062.
¶5 Defendant filed a petition for postconviction relief as a self-represented litigant wherein
he argued “[p]etitioner was denied his right to the effective assistance of trial counsel where
defense counsel failed to interview, subpoena or call any of the witnesses listed on the witness
list that was filed by the defense for this case.” The court appointed counsel to represent
defendant in postconviction proceedings.
¶6 Postconviction counsel filed an amended postconviction petition which “expressly
adopt[ed] and incorporate[d] *** any and all arguments set forth in [defendant’s] Postconviction
Petition.” Additionally, the amended petition stated, “trial counsel was ineffective for failing to
subpoena a key witness(es), including Brittany Ansteatt, who would have assisted in his defense
of this matter and called into question a substantial portion of the State’s case and but for that
failure, the outcome of the proceedings would have been different.” Postconviction counsel filed
a Rule 651(c) certificate with the amended petition. The State filed a motion to dismiss.
¶7 At the hearing on the State’s motion, postconviction counsel argued
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“I think the most important thing for this Court’s consideration with
respect to the petition and the motion to dismiss is the Court has to accept as true
all factual allegations that aren’t positively rebutted by the record.
In this case, I think that the State is attempting in some ways to put the
cart before the horse, for instance, stating that there’s no evidence of these things.
There’s no evidence of these documents. Well, that’s why we have a third-stage
evidentiary hearing.
So the Court at this point just has to determine whether or not the
allegations are factually sufficient as pled and whether or not they are positively
rebutted by the record. If the Court finds that they are positively rebutted by the
record, then I think the State is right, but I would suggest that they have not been
positively rebutted by the record.”
The court granted the State’s motion. Defendant appealed.
¶8 II. ANALYSIS
¶9 Defendant argues that postconviction counsel provided an unreasonable level of
assistance because counsel failed to identify certain witnesses referred to in the petition, support
the petition with their affidavits, or explain how their testimony would likely alter the outcome of
his trial.
¶ 10 “[T]he right to counsel in post-conviction proceedings is wholly statutory.” People v.
Turner, 187 Ill. 2d 406, 410 (1999). Thus, “petitioners are entitled only to the level of assistance
provided by the Post-Conviction Hearing Act.” Id. “[T]he Act requires counsel to provide a
‘reasonable level of assistance.’ ” Id. (quoting People v. Owens, 139 Ill. 2d 351, 364 (1990)). To
satisfy this standard, postconviction counsel must “[make] any amendments to the petitions filed
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pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R.
651(c) (eff. July 1, 2017). “The filing of a Rule 651(c) certificate gives rise to a rebuttable
presumption that postconviction counsel provided reasonable assistance.” People v. Profit, 2012
IL App (1st) 101307, ¶ 19. Overcoming this presumption is defendant’s burden. Id. A Rule
651(c) certificate can be rebutted by the record. People v. Perkins, 229 Ill. 2d 34, 52 (2007).
Whether postconviction counsel provided a reasonable level of assistance required by Illinois
Supreme Court Rule 651(c) is subject to de novo review. People v. Suarez, 224 Ill. 2d 37, 42
(2007).
¶ 11 “A post-conviction petition which is not supported by affidavits or other supporting
documents is generally dismissed without an evidentiary hearing unless the petitioner’s
allegations stand uncontradicted and are clearly supported by the record.” People v. Johnson, 154
Ill. 2d 227, 240 (1993). “In fact, our courts have specifically held that the absence of affidavits,
records or other evidence in support of the post-conviction petition renders the petition
insufficient to require an evidentiary hearing.” Id. “In the ordinary case, a trial court ruling upon
a motion to dismiss a post-conviction petition which is not supported by affidavits or other
documents may reasonably presume that post-conviction counsel made a concerted effort to
obtain affidavits in support of the post-conviction claims, but was unable to do so.” Id. at 241.
Where postconviction counsel misunderstands the law concerning when affidavits are necessary
to support a postconviction claim, counsel fails to provide a reasonable level of assistance.
People v. Waldrop, 353 Ill. App. 3d 244, 250 (2004).
¶ 12 In the instant case, postconviction counsel filed a Rule 651(c) certificate. However, the
record positively rebuts counsel’s Rule 651(c) certificate, as the record clearly establishes that
postconviction counsel misunderstood the law concerning which stage in the postconviction
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proceedings requires affidavits. See Johnson, 154 Ill. 2d at 240. Counsel did not support the
amended petition with affidavits from Ansteatt and Arnold. Since neither of these witnesses
testified at trial, defendant’s postconviction allegations required independent support in the form
of affidavits. Accordingly, we reverse and remand for further second-stage proceedings.
¶ 13 III. CONCLUSION
¶ 14 The judgment of the circuit court of Peoria County is reversed and remanded.
¶ 15 Reversed and remanded.
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