People v. Barlow , 2023 IL App (3d) 210380-U ( 2023 )

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).
2023 IL App (3d) 210380-UOrder filed March 22, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0380
v. ) Circuit No. 13-CF-426
)
ANTHONY D. BARLOW, ) Honorable
) Katherine S. Gorman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Justices McDade and Brennan concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: Defendant failed to make a substantial showing that trial counsel was ineffective.
Subsequent postconviction counsel who represented defendant at the hearing on the
State’s motion to dismiss was not required to independently show compliance with
Rule 651(c).
¶2 Defendant, Anthony D. Barlow, appeals the second-stage dismissal of his postconviction
petition. Defendant argues that he made a substantial showing that his trial counsel provided
ineffective assistance by failing to inform him of a plea offer. Defendant also argues that the matter
should be remanded for further proceedings because postconviction counsel who represented him
at the hearing on the State’s motion to dismiss failed to file an Illinois Supreme Court Rule 651(c)
(eff. July 1, 2017) certificate and the record does not establish that counsel complied with that rule.
We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and
later added a charge of first degree murder (id. § 9-1(a)(3)). Before adding the first degree murder
charge, during an August 30, 2013, hearing at which defendant was present, the State told the court
that it had made an offer to the defense that expired that day and, if the offer was not accepted, the
State was going to add a first degree murder charge. The State also noted its understanding was
that defendant had rejected the offer.
¶5 At a scheduling conference on November 1, 2013, with defendant present, the State noted
that it had given a revised offer to defendant that day and its understanding was that defendant
rejected it. Trial counsel said that the State “did tender to me today a new offer. I did convey that
to [defendant] and, for the record, [defendant] did reject that.” On the day defendant’s jury trial
began, November 12, 2013, trial counsel said
“for the record, at one point in time, an offer was conveyed to [defendant].
[Defendant] rejected that offer. And then at the pretrial just ten days ago, the State
gave me a new offer which I then proceeded to give that to [defendant], a floor and
then the ceiling with it. I conveyed that to [defendant]. [Defendant] again rejected
that.
So, for the record, I want to make sure that all parties are clear. You didn’t
want to take that offer?”
2
Defendant responded “Right, exactly.” The matter proceeded to trial and defendant was found
guilty on both charges.
¶6 Trial counsel filed a motion for a new trial, and defendant filed a pro se motion arguing
ineffective assistance of counsel for failing to investigate Robert Buford as a witness. The court
appointed posttrial counsel to argue defendant’s ineffective assistance claim. During the hearing
appointing posttrial counsel, the court noted that it had received correspondence from defendant
alleging an additional ineffective-assistance issue: “something about the timing of when a plea
offer was given or something.” Posttrial counsel filed another motion for a new trial. The motion
incorporated trial counsel’s motion and defendant’s filing and also alleged ineffective assistance
for failing to make certain objections.
¶7 At the hearing on the motions on February 27, 2014, defendant testified that trial counsel
was ineffective regarding the conveyance of an offer. Defendant stated that “when [trial counsel]
came the day before—the 29th of August I think, and *** my court date was the 30th, she told me
the reason she didn’t bring me the offer, say anything about the offer is because she knew I wasn’t
going to take it.” Posttrial counsel asked, “If I understand your court filing to be correct, *** you
stated that the offer was conveyed to you somewhere on or about August 29th of last year?”
Defendant responded affirmatively. Posttrial counsel then asked, “So it was before your trial?”
Defendant replied, “No, it was the day before. The next day, they said that was the deadline ***
for that offer.” When asked if he gave trial counsel an answer to the offer, defendant said, “I told
her no.” The State asked, “So you didn’t accept the offer?” and defendant responded “Exactly.”
¶8 The court denied the motions. It sentenced defendant to 35 years’ imprisonment. Defendant
appealed arguing that trial counsel was ineffective for failing to (1) investigate and call Buford as
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a witness, and (2) request a jury instruction regarding accomplice-witness testimony. This court
affirmed. People v. Barlow, 2016 IL App (3d) 140334-U.
¶9 Defendant, as a self-represented litigant, filed a postconviction petition. Among other
issues, defendant alleged trial counsel provided ineffective assistance in regard to a plea offer and
appellate counsel was ineffective for failing to raise this issue. Defendant argued that “[h]ad trial
counsel properly informed [him] in instant case of the State’s plea offer, there was the possibility
of the acceptance of plea by the court given that the court was not co[m]fortable with the current
imposed minimum sentence.” Defendant attached a transcript page from the hearing on his motion
for new trial wherein he testified about his claim of ineffective assistance of counsel regarding the
failure to convey a plea offer.
¶ 10 The court advanced the petition to the second stage and appointed postconviction counsel,
Dennis Merkley. Merkley filed a Rule 651(c) certificate and supplemented defendant’s petition by
including additional language and legal citations regarding ineffective assistance of trial counsel.
¶ 11 The State moved to dismiss. Relevant here, the State noted the transcript attached to
defendant’s petition showed defendant knew of the offer before it expired.
¶ 12 Before the court conducted a second-stage hearing, public defender Maggi Wettstein
replaced Merkley. She filed a supplemental postconviction petition which incorporated
defendant’s filing. The petition argued that the plea offered by the State was “a 15 year plea deal
which counsel never advised [defendant] of before she turned it down.” In support, Wettstein
attached an affidavit from defendant alleging that the allegations were true and correct. She also
attached a memorandum of offer dated August 20, 2013. The memo said the State offered
defendant 20 years’ imprisonment and that, if rejected, the State would file first degree murder
charges. The memo also said the offer expired at the scheduling conference on August 30, 2013.
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Finally, Wettstein attached a transcript page from the November 1, 2013, scheduling conference,
which indicated the State made a revised offer to defendant and defendant had rejected it.
¶ 13 Wettstein also filed a response to the State’s motion to dismiss. She argued trial counsel
failed to inform defendant regarding the plea deal. Further, although defendant knew of a plea
offer before trial, the details were not communicated to him and he did not become aware of the
details until after trial. Additionally, trial counsel did not provide defendant enough information to
know what the offer was so that he could not make an informed decision.
¶ 14 The court dismissed the petition, and this appeal followed.
¶ 15 II. ANALYSIS
¶ 16 A. Substantial Showing
¶ 17 Defendant argues the circuit court erred in dismissing his postconviction petition because
he made a substantial showing that trial counsel was ineffective for failing to inform him of the
State’s initial plea offer.1
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a three-
stage process for a criminal defendant to assert that his conviction resulted from a substantial denial
of his rights under the United States Constitution, the Illinois Constitution, or both. People v.
Hodges, 234 Ill. 2d 1, 9 (2009). At the second stage, “the defendant bears the burden of making a
substantial showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
Additionally, “all well-pleaded facts that are not positively rebutted by the trial record are to be
taken as true, and, in the event the circuit court dismisses the petition at that stage, we generally
review the circuit court’s decision using a de novo standard.” Id.1
Although Wettstein, in some filings, framed defendant’s argument as the failure to fully explain
the plea offer to him, on appeal, defendant only argues that he made a substantial showing that counsel
failed to inform him of a plea offer, and therefore, we limit our analysis to that argument.
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¶ 18 Although we recognize that the failure to convey a plea offer can amount to ineffective
assistance of counsel (see, e.g., Missouri v. Frye, 566 U.S. 134, 145 (2012)), we find defendant
failed to make a substantial showing of ineffective assistance because his claim is rebutted by the
record. Specifically, at the hearing on his motion for new trial, defendant testified that counsel
conveyed an offer to him the day before it expired and that he rejected that offer. Additionally, a
memorandum attached by Wettstein in support of the supplemental petition contradicts
defendant’s assertion that the State made him a 15-year offer because it expressly provided a 20-
year offer.
¶ 19 Defendant argues that it is unclear that his petition was based upon the same offer as his
motion for new trial. His argument is rebutted by the record. Notably, defendant attached a
transcript page with testimony from the motion for new trial as support for his petition, which
would be useless unless it pertained to the same offer. Further, Wettstein supported the allegations
of the supplemental petition with a memorandum detailing an offer with an August 30, 2013,
deadline, Defendant’s testimony at the hearing on the motion for new trial indicates it concerned
the State’s offer that expired on August 30, 2013, because defendant said the offer was conveyed
to him the day before his court date and the day before it expired. He further testified that he
believed the offer was conveyed to him on August 29 and his court date was August 30, which is
supported by the record as transcripts show that defendant was in court on August 30 and the State
represented that it had made defendant an offer which was expiring that day.
¶ 20 The only other offer defendant’s petition could be referencing based on the supporting
documentation—namely the transcript page concerning a revised offer which Wettstein attached
to the supplemental petition—was the revised offer the State made to defendant at the scheduling
conference on November 1, 2013. But any claim in regard to that offer would also be positively
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rebutted by the record. The transcripts show that, in defendant’s presence, counsel told the court
that she conveyed the offer to defendant and he rejected it, facts defendant confirmed in open court.
¶ 21 Based on the foregoing, we conclude that the circuit court properly dismissed defendant’s
petition.
¶ 22 B. Rule 651(c) Compliance
¶ 23 In his opening brief, defendant also contended the matter should be remanded because
Wettstein failed to file a Rule 651(c) certificate and the record fails to establish that she complied
with the rule. He argued the rule required compliance by the attorney who ultimately represented
defendant at the State’s motion to dismiss and that a Rule 651(c) certificate filed by an attorney
that no longer represented him did not satisfy the rule’s requirements. Defendant also argued that
People v. Smith, 2020 IL App (1st) 181220, ¶ 23—which held that new postconviction counsel
who replaced prior postconviction counsel before the hearing on the State’s motion to dismiss
“was not required to duplicate [prior postconviction counsel’s] efforts and independently perform
the duties specified in Rule 651(c) in order to provide reasonable assistance at the motion
hearing”—was wrongly decided. At the time defendant filed his opening brief, our supreme court
had granted leave to appeal in Smith but had not yet issued its opinion. In his reply brief, while not
conceding this issue, defendant acknowledges our supreme court had by then issued its opinion in
Smith and declined to provide any further argument.
¶ 24 In People v. Smith, 2022 IL 126940, ¶¶ 15, 19, 29, our supreme court affirmed the appellate
court and rejected arguments nearly identical to those raised in defendant’s opening brief.
Accordingly, Wettstein was not required to independently establish compliance with Rule 651(c).
As stated in Smith, “[b]y virtue of [prior postconviction counsel] filing a Rule 651(c) certificate, a
rebuttable presumption arose that petitioner received reasonable assistance of postconviction
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counsel. [Citation.] Petitioner did not seek to rebut that presumption.” Id. ¶ 29. Similarly here,
there is no dispute that Merkley filed a Rule 651(c) certificate and thus, there is a presumption that
defendant received reasonable assistance of postconviction counsel. Defendant did not seek to
rebut that presumption. As such, defendant is not entitled to remand for further second-stage
proceedings.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the judgment of the circuit court of Peoria County.
¶ 27 Affirmed.
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