People v. Lewis , 2022 IL App (1st) 192476-U ( 2022 )

2022 IL App (1st) 192476-UFIFTH DIVISION
March 25, 2022
No. 1-19-2476
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 12 CR 20153
)
TERRELL LEWIS, ) Honorable
) James M. Obbish,
Defendant-Appellant. ) Judge, presiding.
)
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justices Hoffman and Cunningham concurred in the judgment.
ORDER
Held: We affirm the circuit court’s dismissal of defendant’s claim for unreasonable
assistance of postconviction counsel because defendant did not rebut the
presumption that his counsel acted reasonably.
¶1 Defendant Terrell Lewis appeals from the circuit court’s dismissal of a claim in his pro se
petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))
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at the second stage, arguing he received unreasonable assistance of postconviction counsel. We
affirm.
¶2 BACKGROUND
¶3 Defendant has two active appeals. Today we filed an order in case no. 1-21-0689, which
details the facts of defendant’s trial. We incorporate the relevant background paragraphs of that
order by reference here, and we set forth below only those additional facts necessary to resolve
defendant’s claim in this particular appeal. See People v. Lewis, 2022 IL App (1st) 210689-U,
¶¶ 3-11.
¶4 On March 2, 2017, defendant filed a pro se postconviction petition. On March 15, 2017,
defendant moved to supplement the petition to include additional exhibits. On April 19, 2017, he
filed an amended postconviction petition, in which he claimed in relevant part that his trial counsel
was ineffective for failing to investigate Leon Cooks, whom defendant alleged was “intimately
connected to the process involving the investigation.” The petition further alleged that it was
“imperative” for his trial counsel to interview Cooks to “determine if he could be a defense
witness” regarding “the composition of the alleged firearm” and Hanson’s credibility, but trial
counsel failed to do so. The record does not show that the circuit court ruled on defendant’s
motions to supplement or amend, but on May 12, 2017, the court docketed defendant’s petition for
second stage review.
¶5 On October 22, 2018, counsel filed a certificate pursuant to Illinois Supreme Court Rule
651(c) (eff. July 1, 2017), describing her efforts to investigate defendant’s case and her decision
not to amend defendant’s postconviction petition. In the certificate, counsel stated she
communicated with defendant by letter and telephone, and also reviewed the court file, statutes,
police reports, and trial transcripts. She could not review trial counsel’s file because he had been
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disbarred. Counsel decided she did not need to amend the petition because it adequately set forth
defendant’s claims. She re-filed the certificate on April 29, 2019.
¶6 At a proceeding on June 10, 2019, defense counsel stated she could not contact defendant’s
trial attorney “with regards to evidence that [defendant] had mentioned” previously. Additionally,
she reviewed “the motions” and the court’s files to locate information on defendant’s claims, and
sent defendant two affidavits “attesting to the claims that he brought forth,” neither of which he
returned.
¶7 On July 29, 2019, the State moved to dismiss defendant’s petition, arguing in relevant part
that defendant could not demonstrate prejudice for his ineffective assistance for failure to
investigate claim, and did not provide sufficient evidentiary support for the claim. The State further
contended that defendant’s petition “does not allege or support what evidence Cooks could have
provided that would assist” defendant, or “address whether Cooks would be willing to talk to
petitioner’s attorney.”
¶8 On October 7, 2019, during argument on the State’s motion, defense counsel stated she
asked defendant if he had “some information that I could investigate in terms of the ineffectiveness
of his trial attorney,” but defendant “was unable to provide that information.” She continued that
“nothing” in the documents she reviewed suggested trial counsel was ineffective. The circuit court
granted the State’s motion to dismiss most of defendant’s claims, including the ineffective
assistance of trial counsel for failure to investigate claim, but continued the matter for further
litigation on defendant’s claim that trial counsel was ineffective for not filing a timely notice of
appeal. In so finding, the circuit court explained that, “The only witnesses were the Federal agents
***, the undercover informant *** and [defendant],” and described the idea that Cooks could be a
helpful defense witness as “unreasonable” and “foolish.”
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¶9 Defendant filed a premature notice of appeal on October 21, 2019. On July 7, 2021, our
supreme court entered a supervisory order requiring that we treat the October 21, 2019 notice as
establishing a properly perfected appeal.
¶ 10 ANALYSIS
¶ 11 On appeal, defendant argues that his postconviction counsel provided unreasonable
assistance by insufficiently investigating and presenting his claim for ineffective assistance of trial
counsel.
¶ 12 First, because this court has a duty to always determine its own jurisdiction, we note that
here jurisdiction is established despite defendant not including the present claim in his direct
appeal. See People v. Fuller, 187 Ill. 2d 1, 7 (1999). The ineffective assistance of trial counsel for
failure to investigate Leon Cooks claims was not appropriate for direct appeal because resolution
of it requires consideration of matters outside the trial record. See People v. Veach, 2017 IL
120649, ¶ 46 (ineffective assistance claims are better suited for postconviction proceedings where
the “record is incomplete or inadequate for resolving the claim”). Additionally, while the circuit
court’s order permitting defendant to file a direct appeal did not finally resolve claims now raisable
on direct appeal, it was a final and appealable order respecting the other claims in defendant’s
postconviction petition that were not so raisable, because the order terminated proceedings on his
petition. See People v. Brewer, 2021 IL App (1st) 182638, ¶ 35. Finally, we need not stay this
matter until we resolve defendant’s direct appeal, as it is well-established that a defendant may
litigate a direct appeal and postconviction claims simultaneously. People v. Harris, 224 Ill. 2d 115,
126-28 (2007).
¶ 13 The Act provides a mechanism for a criminal defendant to challenge his conviction on the
grounds that it violates his constitutional rights. People v. Domagala, 2013 IL 113688, ¶ 32.
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Petitions pursuant to the Act are reviewed in three stages. Id. Here, the circuit court dismissed
defendant’s relevant claim at the second stage. At the second stage, the circuit court must accept
all well-pleaded factual allegations not rebutted by the record as true, and determine whether the
defendant has made a substantial showing of a constitutional violation. Id. ¶ 35. We review de
novo the circuit court’s decision to dismiss a postconviction claim at the second stage. People v.
Dupree, 2018 IL 122307, ¶ 29.
¶ 14 A defendant does not have a constitutional right to assistance of counsel in postconviction
proceedings, and the right to appointed counsel at the second stage of postconviction review in
Illinois is a statutory creation. People v. Johnson, 2018 IL 122227, ¶ 16. Accordingly, a claim that
postconviction counsel’s performance was inadequate is not reviewed under the ineffective
assistance standard, but the lower reasonable assistance standard. People v. Custer, 2019 IL
123339, ¶ 30. Rule 651(c) outlines the steps an attorney must take to provide reasonable assistance,
including the requirement to certify her efforts in detail on the record. Id. ¶ 32; Ill. S. Ct. R. 651(c)
(eff. July 1, 2017). Specifically, the Rule requires that postconviction counsel certify that she
consulted with the defendant “to ascertain his or her contentions of deprivation of constitutional
rights,” examined the record of trial proceedings, and amended the petition as “necessary for an
adequate presentation” of the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
Postconviction counsel is under no obligation to amend a petition to pursue a meritless claim, as
such an amendment is not “necessary” per the statute. See People v. Collins, 2021 IL App (1st)
170597, ¶ 38 (citing People v. Greer, 212 Ill. 2d 192, 205 (2004)).
¶ 15 Postconviction counsel’s filing of a Rule 651(c) certificate verifying that she took the
statutorily required measures creates a rebuttable presumption of reasonable assistance. Custer,
2019 IL 123339, ¶ 32. The defendant has the burden to rebut this presumption through a showing
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that counsel’s conduct was unreasonable despite the efforts detailed in the certificate. People v.
Landa, 2020 IL App (1st) 170851, ¶ 46. When counsel has filed a Rule 651(c) certificate, a
defendant must not only demonstrate unreasonable assistance, but also that his underlying claim
had merit such that he suffered prejudice from postconviction counsel’s unreasonable conduct. Id.
¶¶ 57-58.
¶ 16 Here, the record shows that defendant’s postconviction counsel filed a Rule 651(c)
certificate in which she verified that she communicated with defendant and reviewed the relevant
files, discovery materials, and transcripts, though she could not review trial counsel’s file because
he had been disbarred. Postconviction counsel concluded that the petition adequately set forth
defendant’s claims.
¶ 17 Defendant argues that postconviction counsel’s conduct was unreasonable because the
proper presentation of his ineffective assistance of trial counsel claim required her to contact Cooks
and procure an affidavit. The petition generally alleges that Cooks could have information
regarding the firearm’s composition and Hanson’s credibility. Neither the petition nor the briefing
describes the efforts postconviction made to investigate Cooks. Additionally, defendant does not
allege that Cooks was available and willing to testify, or describe the specific testimony defendant
expected Cooks would provide.
¶ 18 On this record, we find that defendant has failed to rebut the presumption that his
postconviction counsel provided reasonable assistance. It is undisputed that counsel filed a Rule
651(c) certificate, which outlined her efforts to investigate defendant’s claims and stated her
conclusion that the petition adequately set them forth. This filing led to a rebuttable presumption
that counsel provided reasonable assistance, including the presumption that she took all reasonable
efforts to investigate Cooks as a witness. Custer, 2019 IL 123339, ¶ 32. This placed the burden on
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defendant to rebut the presumption of reasonable assistance. Landa, 2020 IL App (1st) 170851,
¶ 46. Defendant here, however, points to nothing in the record suggesting counsel acted
unreasonably in investigating Cooks. Accordingly, his claim fails.
¶ 19 Defendant, citing People v. Enis, 194 Ill. 2d 361 (2000), argues that an affidavit from Cooks
was necessary to establish his claim, and thus the absence of an affidavit proves postconviction
counsel provided unreasonable assistance despite the Rule 651(c) certificate. See Enis, 194 Ill. 2d
at 380 (2000). We note that this is an incorrect statement of law. See Dupree, 2018 IL 122307,
¶ 34 (finding that a defendant could conceivably make a substantial showing of ineffective
assistance of trial counsel for failure to investigate a witness without attaching an affidavit).
Dupree notwithstanding, counsel’s Rule 651(c) certificate entitled her to the presumption that she
made all reasonable efforts to investigate Cooks, and either could not contact him and procure an
affidavit despite reasonable efforts, or concluded that the claim lacked merit, and therefore
additional pursuit of the claim was unnecessary.” See People v. Johnson, 154 Ill. 2d 227, 241
(1993) (“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.”); People v. Kirk, 2012 IL App (1st) 101606, ¶¶ 24-
25; see also Collins, 2021 IL App (1st) 170597, ¶ 38. This is not altered by counsel’s failure to
describe these efforts in her Rule 651(c) certificate, as there is nothing in the Rule suggesting “a
Rule 651(c) certificate is intended to be a comprehensive recounting of all of postconviction
counsel’s efforts.” See People v. Jones, 2011 IL App (1st) 092529, ¶ 24.
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¶ 20 Defendant contends that postconviction counsel did not explain the absence of an affidavit,
but this argument is invalid because counsel had no obligation to do so; instead, it was defendant’s
burden to affirmatively show counsel’s conduct was unreasonable, a burden he has not met.
¶ 21 Finally, because we find that defendant has not rebutted the presumption of reasonable
assistance of postconviction counsel, we do not reach the issues briefed by the parties regarding
the merits of defendant’s underlying ineffective assistance of trial counsel claim.
¶ 22 CONCLUSION
¶ 23 Defendant here had the burden to rebut the presumption that his postconviction counsel
provided reasonable assistance, but failed to make any showing that postconviction counsel did
not reasonably investigate his claim. Therefore, his claim fails, and the circuit court’s ruling is
affirmed.
¶ 24 Affirmed.
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