                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Profit, 2012 IL App (1st) 101307




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    SHAUN PROFIT, Defendant-Appellant.



District & No.             First District, Fourth Division
                           Docket No. 1-10-1307


Filed                      June 28, 2012


Held                       Defendant’s successive postconviction petition was properly dismissed
(Note: This syllabus       where the presumption that defendant’s postconviction counsel complied
constitutes no part of     with Supreme Court Rule 651(c) was triggered by the Rule 651(c)
the opinion of the court   certificate filed by counsel, defendant did not rebut that presumption, and
but has been prepared      there was no basis for concluding that counsel failed to provide
by the Reporter of         reasonable assistance.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 98-CR-22730; the
Review                     Hon. Thomas M. Tucker, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier and Alan D. Goldberg, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Douglas P. Harvath, and Michele I. Lavin, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE STERBA delivered the judgment of the court, with opinion.
                           Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the
                           judgment and opinion.



                                             OPINION

¶1          Defendant Shaun Profit appeals the trial court’s dismissal, on motion of the State, of his
        successive postconviction petition. On appeal, defendant contends that his appointed
        postconviction counsel provided unreasonable assistance under Illinois Supreme Court Rule
        651(c) (eff. Dec. 1, 1984). He argues that counsel attempted but failed to adopt claims that
        he raised in various pro se pleadings and failed to make amendments that would have
        preserved his claims against procedural bars. For the reasons that follow, we affirm.

¶2                                         BACKGROUND
¶3          Following a simultaneous but severed bench trial with his codefendant, Simione Dunn,
        defendant was convicted of attempted first degree murder and armed robbery and was
        sentenced to two consecutive 18-year prison terms. The underlying facts of the case are set
        forth in our decision on direct appeal and will be repeated here only briefly.
¶4          Defendant and codefendant were convicted primarily based on the testimony of the
        victim and Katrina Dent, who had negotiated an agreement with the prosecution wherein in
        exchange for her truthful testimony, she would be allowed to plead guilty to robbery and
        receive a sentence of probation. At trial, Dent testified that she, defendant, and codefendant
        planned to rob the victim at his apartment. Dent saw codefendant shoot the victim in the back
        of the head, and then, as she ran outside, saw defendant enter the apartment wearing latex
        gloves and carrying a gym bag. Later, codefendant told Dent that “Shaun took care of [her]
        boy.”
¶5          The victim testified that even though he did not see defendant, he heard another person
        enter the apartment after he had been shot the first time. He heard codefendant say, “Shaun,
        watch them.” The two men searched the apartment and asked several times where the money
        was. When the victim said he did not have any money, the person named Shaun shot him in
        the back of the neck, and codefendant said, “Come on, Shaun, let’s go.” The victim testified


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       that some money and a cell phone were taken from his apartment.
¶6          On direct appeal, defendant challenged the sufficiency of the evidence and contended that
       the statute authorizing consecutive sentences was unconstitutional under the holding of
       Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirmed defendant’s conviction and
       sentence. People v. Profit, No. 1-00-0353 (2001) (unpublished order under Supreme Court
       Rule 23).
¶7          In 2002, defendant filed a pro se petition for postconviction relief, raising claims that his
       consecutive sentences violated Apprendi and that the State used perjured testimony of an
       alleged accomplice to obtain his conviction. The petition was summarily dismissed by the
       trial court as frivolous and patently without merit, and defendant appealed. We granted
       appellate counsel’s motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551
       (1987), and affirmed the dismissal of the petition. People v. Profit, No. 1-02-3154 (2003)
       (unpublished order under Supreme Court Rule 23).
¶8          Later in 2003, defendant filed a pro se pleading titled “Motion to File Second Post-
       Conviction Petition,” along with a document titled “Memorandum of Law/Finding of Facts.”
       In this petition, defendant made allegations that (1) he was not proved guilty beyond a
       reasonable doubt; (2) the trial court improperly consolidated the evidence in his and his
       codefendant’s trials, even though the trials had been severed; (3) trial counsel failed to object
       to the “consolidation” of the evidence; (4) the State knowingly elicited false testimony from
       Dent; and (5) trial and appellate counsel were ineffective for not raising these issues.
¶9          Defendant’s successive petition was not addressed by the trial court until 2005. At that
       time, the trial court docketed the petition and appointed counsel.
¶ 10        In July 2007, defendant filed a pro se pleading titled “Amended Petition.” In this petition,
       defendant alleged that (1) the trial court erroneously held his and codefendant’s severed trials
       at the same time; (2) the trial court erroneously consolidated the evidence from his and co-
       defendant’s trials; (3) trial counsel was ineffective for failing to object to these actions of the
       trial court and preserve them for appeal; (4) he was denied due process when he received an
       enhanced sentence and the enhancement was not indicated on the indictment; and (5) the
       evidence was insufficient to convict.
¶ 11        In August 2007, the State filed a motion to strike defendant’s pro se amended petition,
       arguing that defendant had no authority to file such a pleading while he was represented by
       counsel. At the hearing on the motion, postconviction counsel asked the trial court to defer
       ruling until he decided whether he would be preparing his own supplemental petition. The
       trial court denied counsel’s request and granted the motion to strike the pro se pleading.
¶ 12        In October 2007, defendant filed a pro se pleading titled “Supplemental Post-Conviction
       Petition for Relief.” In this pleading, defendant raised claims that (1) he was denied due
       process and equal protection where the State failed to disclose, prior to his decision to waive
       a jury trial, that Dent had “received a deal for probation”; (2) his consecutive sentences were
       disparate to his codefendant’s concurrent sentences; (3) the State knowingly relied on Dent’s
       perjured testimony; and (4) appellate counsel was ineffective for failing to raise the issue of
       the State’s use of Dent’s testimony. Defendant attached an affidavit averring that had he
       known Dent “was promised a deal for her testimony,” he would have chosen to be tried by

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       a jury.
¶ 13       Two years later, in October 2009, postconviction counsel filed a Rule 651(c) certificate,
       indicating that he had consulted with defendant by letter and telephone on numerous
       occasions to ascertain his contentions of deprivations of constitutional rights; had obtained
       and examined the report of proceedings, trial transcript, common law record, and appellate
       transcripts; and had informed defendant that he must obtain leave to file a successive
       postconviction petition. Counsel further included the following paragraph:
               “I have examined the Petitioner’s November 12, 2003, pro se Post-Conviction
           Petition, his July 9, 2007, Amended Petition and his October 17, 2007, pro se
           Supplemental Post-Conviction Petition dismissed by this Court on September 23, 2008,
           and they adequately present his claims of deprivations of constitutional rights, thus, there
           is nothing that can be added by an amended or additional supplemental petition.”
       Orally, postconviction counsel stated that he was prepared to file the certificate, but wanted
       to ask the court to reconsider its dismissal of a pleading defendant had filed “about a year
       ago” so that all of defendant’s arguments could be before the court. The State objected,
       arguing that because defendant had no authority to file pro se pleadings while represented
       by counsel, the claims raised in those pleadings were properly dismissed. The trial court
       responded, “And they were dismissed, and they will remain dismissed.”
¶ 14       The State thereafter filed a motion to dismiss defendant’s postconviction petition on the
       basis that he had not met the cause-and-prejudice test and his claims were procedurally
       barred from consideration by the doctrines of res judicata and collateral estoppel. Following
       a hearing, the trial court granted the motion to dismiss.
¶ 15       On appeal, defendant contends that postconviction counsel provided unreasonable
       assistance under Rule 651(c) where counsel attempted to adopt the claims from defendant’s
       pro se pleadings, but failed to do so, and where counsel failed to make amendments that
       would have preserved his claims. Defendant argues that the last paragraph of the Rule 651(c)
       certificate, along with counsel’s comments to the court when presenting the certificate,
       demonstrate that counsel intended to adopt the claims set forth in all three of defendant’s pro
       se pleadings. He argues that because the trial court had indicated the claims in the pro se
       amended petition and pro se supplemental petition would “remain dismissed,” counsel acted
       unreasonably in not filing an amended or supplemental petition presenting those claims.
       Defendant further argues that counsel failed to provide reasonable assistance under Rule
       651(c) where he did not amend the petition in response to the State’s motion to dismiss. He
       maintains that counsel should have made amendments responding to the procedural bars
       raised by the State, in particular, the cause-and-prejudice test and res judicata.

¶ 16                                        ANALYSIS
¶ 17       Our review of an attorney’s compliance with a supreme court rule, as well as the
       dismissal of a postconviction petition on motion of the State, is de novo. People v. Jones,
       2011 IL App (1st) 092529, ¶ 19.
¶ 18       Under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)),
       petitioners are entitled to a “reasonable” level of assistance of counsel. People v. Perkins,

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       229 Ill. 2d 34, 42 (2007). To ensure this level of assistance, Rule 651(c) imposes three duties
       on appointed postconviction counsel. Perkins, 229 Ill. 2d at 42. Pursuant to the rule, either
       the record or a certificate filed by the attorney must show that counsel (1) consulted with the
       petitioner to ascertain his contentions of constitutional deprivations; (2) examined the record
       of the trial proceedings; and (3) made any amendments to the filed pro se petitions necessary
       to adequately present the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984);
       Perkins, 229 Ill. 2d at 42. The purpose of the rule is to ensure that postconviction counsel
       shapes the defendant’s claims into a proper legal form and presents them to the court.
       Perkins, 229 Ill. 2d at 44. Substantial compliance with Rule 651(c) is sufficient. People v.
       Richardson, 382 Ill. App. 3d 248, 257 (2008).
¶ 19       The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that post-
       conviction counsel provided reasonable assistance. Jones, 2011 IL App (1st) 092529, ¶ 23.
       In the instant case, counsel filed a Rule 651(c) certificate. Thus, the presumption exists that
       defendant received the representation required by the rule. It is defendant’s burden to
       overcome this presumption by demonstrating his attorney’s failure to substantially comply
       with the duties mandated by Rule 651(c). Id.
¶ 20       Defendant maintains that he has rebutted the presumption of substantial compliance. He
       argues that because counsel failed to properly present the claims he raised in his pro se
       amended petition and pro se supplemental petition, the trial court did not consider those
       claims in making its ruling. In this way, according to his argument, counsel’s representation
       was inadequate.
¶ 21       In his opening brief, defendant did not argue that any of the claims raised in his pro se
       amended petition and pro se supplemental petition had merit. After the State pointed out this
       deficiency in its brief, defendant argued in his reply brief that he need not demonstrate the
       merit of the excluded claims because Rule 651(c) violations require reversal regardless of
       whether the claims raised in the petition have merit and that such violations are not subject
       to harmless error analysis. We disagree.
¶ 22       In support of his argument that merit is irrelevant, defendant relies upon People v.
       Suarez, 224 Ill. 2d 37 (2007). In Suarez, our supreme court found that postconviction counsel
       failed to comply with Rule 651(c) because he did not file a Rule 651(c) certificate and the
       record did not show he had consulted with the defendant. Suarez, 224 Ill. 2d at 40, 44. In this
       context, the Suarez court held that remand is required regardless of whether the claims raised
       in the petition have merit and that noncompliance with Rule 651(c) may not be excused on
       the basis of harmless error. Suarez, 224 Ill. 2d at 47, 52.
¶ 23       Here, unlike Suarez, counsel filed a Rule 651(c) certificate, giving rise to a rebuttable
       presumption that he performed the duties required by that rule. Jones, 2011 IL App (1st)
       092529, ¶ 23. Defendant maintains that the presumption was rebutted by counsel’s failure
       to file an amended petition raising certain additional pro se allegations filed by defendant,
       which were stricken by the court. Contrary to defendant’s claim, we believe that the question
       of whether the pro se allegations had merit is crucial to determining whether counsel acted
       unreasonably by not filing an amended petition. As our supreme court stated in People v.
       Greer, 212 Ill. 2d 192, 205 (2004), “Fulfillment of the third obligation under Rule 651(c)


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       does not require postconviction counsel to advance frivolous or spurious claims on
       defendant’s behalf. If amendments to a pro se postconviction petition would only further a
       frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of
       the rule.”
¶ 24       The parties have identified only two claims in the pro se amended petition and pro se
       supplemental petition that were not also included in the properly filed successive petition.
¶ 25       One of these two claims is defendant’s assertion that his consecutive sentences were
       disparate to the concurrent sentences of his codefendant, Simione Dunn. This argument is
       indisputably without merit because Dunn did not receive concurrent sentences. Not only was
       Dunn initially sentenced to consecutive terms of 18 years’ imprisonment, but after remand,
       he received the same consecutive sentences. See People v. Dunn, No. 1-05-2333, slip op. at
       1, 2 (2007) (unpublished order under Supreme Court Rule 23). We cannot find that counsel
       provided unreasonable assistance by failing to ensure the trial court considered this meritless
       claim.
¶ 26       The second claim raised for the first time in the stricken pro se pleadings is defendant’s
       argument that he was denied due process and equal protection where the State failed to
       disclose, prior to his decision to waive a jury trial, that Dent had “received a deal for
       probation.” Defendant argues that had he known of Dent’s arrangement with the State, he
       would have elected a trial by jury.
¶ 27       Defendant did not include this claim in his initial postconviction petition. The Post-
       Conviction Hearing Act specifically provides that any claim of substantial denial of
       constitutional right not raised in the original or an amended petition is waived. 725 ILCS
       5/122-3 (West 2008). In a case not involving the death penalty, the failure to raise a claim
       in an initial petition will be excused only where a defendant sets forth a claim of actual
       innocence or where fundamental fairness so requires. People v. Pitsonbarger, 205 Ill. 2d 444,
       458-59 (2002). The cause-and-prejudice test is applied to determine whether fundamental
       fairness requires that a claim raised in a successive petition may be considered on its merits.
       Pitsonbarger, 205 Ill. 2d at 459.
¶ 28       In the instant case, defendant is not claiming actual innocence. He also has not argued
       the existence of “cause,” that is, “any objective factor, external to the defense, which
       impeded the petitioner’s ability to raise a specific claim at the initial postconviction
       proceeding.” Pitsonbarger, 205 Ill. 2d at 462. Defendant has not offered any explanation as
       to why his jury waiver argument was not included in his first postconviction petition. Where
       defendant, with the assistance of appellate counsel in this court, has not even suggested how
       “cause” could have been shown, we decline to find that postconviction counsel acted
       unreasonably in failing to properly place the jury waiver claim before the trial court.
¶ 29       Defendant further argues that counsel failed to provide reasonable assistance under Rule
       651(c) where he did not amend the petition in response to the procedural bars raised by the
       State in its motion to dismiss, in particular, the cause-and-prejudice test and res judicata.
       Once again, defendant has not identified what arguments in particular counsel could have
       made in such a response. In these circumstances, we will not find that postconviction counsel
       provided unreasonable assistance in failing to make unspecified arguments.


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¶ 30        Our conclusion is supported by the supreme court’s decision in People v. Perkins, 229
       Ill. 2d 34 (2007). There, the court held that counsel’s duties under Rule 651(c) include
       amending an untimely petition to allege “any available facts” that would excuse the late
       filing. Perkins, 229 Ill. 2d at 37, 49. In that case, postconviction counsel filed a Rule 651(c)
       certificate that did not address the late filing, and counsel did not amend the petition in
       response to the State’s motion to dismiss the petition as untimely. Perkins, 229 Ill. 2d at 38-
       39. Although counsel “in effect” argued that the defendant was not culpable for the delay,
       the argument was without merit, causing the defendant to argue on appeal that counsel
       simply did not understand the law. Perkins, 229 Ill. 2d at 40, 51. The supreme court
       disagreed, stating that there was nothing in the record that showed a good excuse for the
       delay and that the court would not assume the existence of “some other excuse counsel failed
       to raise for the delay in filing.” Perkins, 229 Ill. 2d at 51. Under these circumstances, the
       court held that the record did not rebut counsel’s representation in his certificate that no
       amendments were necessary. Perkins, 229 Ill. 2d at 52.
¶ 31        In the instant case, postconviction counsel filed a Rule 651(c) certificate, thus triggering
       the presumption of compliance with the rule. Defendant has failed to rebut the presumption.
       Accordingly, we cannot find that counsel provided an unreasonable level of assistance.
       Dismissal of defendant’s petition was proper.

¶ 32                                    CONCLUSION
¶ 33       For the reasons explained above, we affirm the judgment of the circuit court.

¶ 34       Affirmed.




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