                                       2016 IL App (3d) 150644

                                 Opinion filed July 27, 2016
     _____________________________________________________________________________

                                                IN THE

                                  APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                 2016

     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of the 10th Judicial Circuit,
                                                    )      Peoria County, Illinois,
           Plaintiff-Appellee,                      )
                                                    )      Appeal No. 3-15-0644
           v.                                       )      Circuit No. 02-CF-638
                                                    )
     JIMMY E. THOMPSON,                             )      Honorable
                                                    )      John P. Vespa,
           Defendant-Appellant.                     )      Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices Lytton and McDade concurred in the judgment and opinion.
     _____________________________________________________________________________

                                              OPINION

¶1         Defendant, Jimmy E. Thompson, appeals from the second-stage dismissal of his pro se

     postconviction petitions. Defendant argues that his postconviction counsel failed to provide

     reasonable assistance because counsel did not obtain and review defendant’s pretrial mental

     health records to shape defendant’s pro se claim that he was unfit to waive his constitutional

     right to trial counsel. We reverse the order dismissing defendant’s pro se postconviction

     petitions and remand the matter for further second-stage proceedings for postconviction counsel
      to obtain and review defendant’s pretrial mental health records and amend the petitions as

      necessary.



¶2                                                 FACTS

¶3          In July 2003, after a trial in which defendant waived his right to counsel, a jury found

     defendant guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West 2002)). Prior to the sentencing

     hearing, defendant filed several motions and letters in the trial court. Relevant to this appeal is

     defendant’s allegation that he was “mentally unstable” and that there was “no way” he could

     defend himself at trial.

¶4          On March 20, 2013, the trial court conducted a sentencing hearing. At the hearing, the

     court denied defendant’s pro se posttrial motions and asked defendant if there were any

     corrections to be made to the presentence investigation report (PSI). Defendant told the trial

     court that the PSI did not include defendant’s statement that he “hears things, see things” or

     defendant’s pretrial mental health records from the “Zeller Zone” mental institution. The mental

     health records were never added to the PSI. Ultimately, the trial court sentenced defendant to 30

     years’ imprisonment. The same day, the trial court appointed counsel to represent defendant.

¶5          On June 6, 2003, defendant’s counsel filed an untimely motion to reconsider defendant’s

     sentence. The trial court treated the motion as timely but otherwise denied the motion.

     Defendant’s counsel filed a notice of appeal on June 11, 2003. This court dismissed the appeal

     upon appellate counsel’s motion because defendant’s motion to reconsider his sentence was

     untimely and the time for filing a motion to file a late notice of appeal had already expired.

¶6          In February 2005, defendant filed a pro se postconviction petition (2005 petition). The

     2005 petition alleged, in relevant part, that defendant was denied his constitutional right to an


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     appeal from his conviction due to ineffective assistance of counsel. Defendant also alleged that

     while in prison, he was diagnosed with schizophrenia. According to defendant, at the time of trial

     he “did not know his mental state of mind or his illness in order to state his mental legal

     disabilities in order to stand trial or represent himself or plead insanity in his defense.” The trial

     court summarily dismissed the 2005 petition, and defendant appealed.

¶7          On appeal, this court found that counsel’s ineffectiveness in failing to perfect a timely

     appeal constituted a substantial constitutional violation. People v. Thompson, No. 3-05-0205

     (2007) (unpublished order under Supreme Court Rule 23). However, this court noted that it did

     not have authority to grant defendant’s request to reinstate his direct appeal or order the trial

     court to allow defendant to file a late notice of appeal. Nevertheless, because the trial court had

     authority to grant other postconviction relief for the constitutional deprivation, this court

     remanded for further postconviction proceedings. This court made no finding on defendant’s

     claim that he was unfit to waive his right to trial counsel.

¶8          On remand, defendant was appointed counsel, Kevin Lowe. Lowe informed the trial

     court that he wanted to obtain defendant’s mental health records to support defendant’s claim

     that he was unfit to waive his right to trial counsel. The trial court issued a subpoena to

     Comprehensive Community Mental Health North Central Illinois for defendant’s “mental health

     records while he was a patient at Zeller-Zone in Peoria.” The trial court issued a second

     subpoena to “H. Douglas Singer Mental Health Center” for defendant’s “mental health records

     while he was a patient at Zeller-Zone in Peoria, IL.”




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¶9             On July 9, 2008, the trial court conducted an in camera review of defendant’s mental

       health records from “DHS Singer Mental Health Center.” 1 The written order corresponding to

       the trial court’s in camera review indicated that the court turned the records over to the State for

       further disclosure in discovery. The order noted that the records were otherwise confidential and

       that “no counsel may further copy, or disclose the records to any third person other than

       disclosure to the Defendant, without leave of the court.” On July 11, 2008, the trial court entered

       a written order indicating that defendant’s records from “Singer Center” shall be produced to

       defendant’s attorney (Lowe), with instruction to provide a copy of the records to the State. Those

       records are not part of the appellate record.

¶ 10           While defendant’s revived 2005 petition remained pending, 2 Lowe filed a motion for

       leave to file a late notice of appeal. The motion requested that defendant be allowed to appeal

       from his conviction and sentence. Lowe noted that this court had previously remanded for further

       postconviction proceedings, finding defendant’s prior counsel’s failure to timely perfect

       defendant’s direct appeal constituted a substantial constitutional violation. Lowe also noted that

       this court had determined that it did not have authority to reinstate defendant’s appeal from his

       conviction and sentence. Relying on People v. Ross, 229 Ill. 2d 255 (2008), Lowe argued that the

       trial court had authority to grant a late notice of appeal as postconviction relief, thereby allowing

       defendant an opportunity to appeal from his conviction and sentence. The trial court granted the

       motion but noted that defendant’s revived 2005 petition otherwise remained pending. No further

       proceedings were held on the revived 2005 petition until after defendant’s direct appeal.




               1
                 Although not clear from the record, both parties on appeal appear to consider the Singer Center
       records as also including the Zeller Zone records.
               2
                 We use the term revived due to our previous remand. For clarity, we will use this terminology
       when referring to this petition.
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¶ 11          On appeal from defendant’s conviction and sentence, defendant raised several issues, but

       he did not raise the issue of his ability to waive his right to counsel. Ultimately, this court

       affirmed defendant’s conviction and sentence. People v. Thompson, No. 3-08-0763 (2010)

       (unpublished order under Supreme Court Rule 23).

¶ 12          On April 13, 2011, defendant filed a second pro se postconviction petition (2011

       petition), which he labeled as a successive postconviction petition. At the time defendant filed

       the 2011 petition, the trial court had not ruled on defendant’s revived 2005 petition. The 2011

       petition alleged, in pertinent part, that defendant was unfit to waive his right to trial counsel. To

       support this claim, defendant attached his posttrial mental health records. This included a mental

       health evaluation from Western Illinois Correctional Center (dated April 24, 2003), which

       indicated that defendant was diagnosed with psychotic disorder not otherwise specified, major

       depression, and alcohol abuse. Defendant also attached a mental health evaluation from Illinois

       River Correctional Center (dated March 26, 2006), which indicated that defendant was diagnosed

       with schizophrenia. In addition, defendant attached a mental health treatment plan (dated

       December 27, 2007), which indicated that defendant was being treated with psychotropic

       medication. The 2011 petition did not include defendant’s pretrial mental health records.

¶ 13          On July 7, 2011, the trial court denied defendant leave to file a successive petition

       because the 2011 petition did not satisfy the cause and prejudice test. The trial court did not

       make a determination on defendant’s revived 2005 petition.

¶ 14          On July 26, 2011, defendant filed a notice of appeal from the trial court’s denial of his

       motion for leave to file his 2011 petition. While defendant’s appeal was pending, defendant filed

       a motion to supplement his 2011 petition. Like the 2005 and 2011 petitions, defendant’s motion

       argued that he was unfit to waive his right to trial counsel. Attached to the motion are several


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       pages of records that defendant alleged were from his hospitalization at the Zeller Zone mental

       health facility in the 1990s. The records appear incomplete but included references to defendant

       being diagnosed with alcohol dependence, cocaine abuse, and antisocial personality disorder.

       Defendant’s motion sought to attach these records to defendant’s 2011 petition. The record on

       appeal does not show that the motion was ever considered by the trial court.

¶ 15          On appeal from the denial of defendant’s 2011 petition, this court held that the trial court

       erred in treating defendant’s 2011 petition as a successive petition. People v. Thompson, 2013 IL

       App (3d) 110824-U, ¶ 19. As a result, this court remanded for further postconviction proceedings

       with direction to treat defendant’s 2011 petition as either an amendment to his 2005 petition or as

       a new petition.

¶ 16          On remand, defendant was appointed new postconviction counsel, Thomas Sheets. Sheets

       did not amend defendant’s petitions, and on February 24, 2014, Sheets filed a Rule 651(c) (Ill. S.

       Ct. R. 651(c) (eff. Feb. 6, 2013)) certificate. In October 2014, Sheets withdrew as counsel for

       defendant due to a conflict of interest. The trial court then appointed new postconviction counsel,

       Samuel Snyder.

¶ 17          On July 17, 2015, Snyder filed a Rule 651(c) certificate. Snyder did not amend

       defendant’s 2005 or 2011 petitions. The same day, the State filed a motion to dismiss

       defendant’s revived 2005 and 2011 petitions.

¶ 18          At the hearing on the State’s motion to dismiss, defendant complained that Snyder did

       not comply with Rule 651(c) because Snyder did not amend defendant’s pro se petitions. The

       trial court asked Snyder to respond to defendant’s complaint. Snyder represented that he

       exchanged letters with defendant, discussed the case with him, and determined that defendant’s

       claims did not need to be amended. Snyder also asserted that he had been “more than compliant”


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       with Rule 651(c). The trial court determined that Snyder’s Rule 651(c) certificate was “fine” and

       took the State’s motion to dismiss under advisement. On August 11, 2015, the trial court entered

       a written order granting the State’s motion and dismissed defendant’s 2005 and 2011 pro se

       postconviction petitions.



¶ 19                                               ANALYSIS

¶ 20          At the outset, we note that defendant only argues that postconviction counsel performed

       unreasonably in presenting his claim that he was unfit to waive his constitutional right to trial

       counsel. As a result, the remaining allegations in defendant’s postconviction petitions are

       forfeited. People v. Pendleton, 223 Ill. 2d 458, 476 (2006).

¶ 21          On appeal, defendant argues that postconviction counsel failed to obtain and review his

       pretrial mental health records in order to make amendments to defendant’s pro se petition.

       Defendant contends that a review of these records was necessary for an adequate presentation of

       defendant’s claim that he was unfit to waive his right to trial counsel.

¶ 22          In postconviction proceedings:

                              “A defendant is only entitled to a reasonable level of assistance from

                      [postconviction] counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Illinois

                      Supreme Court Rule 651(c) (eff. Feb. 6, 2013) requires postconviction counsel to:

                      (1) consult with the petitioner to ascertain his contentions of constitutional

                      deprivation; (2) examine the record of the proceeding of the original trial; and (3)

                      make any amendments to the pro se petition necessary to adequately present the

                      petitioner’s constitutional contentions.” People v. Jones, 2016 IL App (3d)

                      140094, ¶ 25.


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       “[T]he purpose of Rule 651(c) ‘is to ensure that counsel shapes the petitioner’s claims into

       proper legal form and presents those claims to the court.’ ” Id. ¶ 28 (quoting Perkins, 229 Ill. 2d

       at 44). “To that end, Rule 651(c) requires a showing that [postconviction] counsel ‘took the

       necessary steps to secure adequate representation of petitioner’s claims.’ ” Id. (quoting People v.

       Szabo, 144 Ill. 2d 525, 532 (1991)).

¶ 23          “Here, defendant acknowledges that [postconviction] counsel is presumed to have

       provided defendant reasonable assistance of counsel because he filed a Rule 651(c) certificate.”

       Id. ¶ 26 (citing People v. Mendoza, 402 Ill. App. 3d 808, 813 (2010)). However, he argues the

       record rebuts this presumption with respect to postconviction counsel’s third duty—to make any

       amendments to the pro se petition that are necessary to adequately present defendant’s

       contentions. People v. Marshall, 375 Ill. App. 3d 670, 680 (2007). Because postconviction

       counsel did not obtain and review defendant’s pretrial mental health records, we hold that the

       record rebuts the presumption that counsel took the steps necessary to adequately present

       defendant’s claim.

¶ 24          In the present case, defendant’s 2005 and 2011 petitions alleged that he was unfit to

       waive his constitutional right to counsel at trial because he had been diagnosed with

       schizophrenia and had been institutionalized twice prior to trial. Defendant identified the relevant

       pretrial mental health records, but defendant never attached those records to either of his pro se

       petitions. Defendant’s allegations placed counsel on notice of the evidence needed to support

       defendant’s claim. Postconviction counsel had an obligation to, at a minimum, “attempt to obtain

       evidentiary support for claims raised in the post-conviction petition.” People v. Johnson, 154 Ill.

       2d 227, 245 (1993). Postconviction counsel, however, failed to take any steps to obtain or review

       defendant’s pretrial mental health records. We note postconviction counsel could have obtained


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       said records via leave of court. Instead, postconviction counsel decided to merely stand on the

       arguments set forth in defendant’s pro se petitions, which lacked evidentiary support. The

       consequence of postconviction counsel’s failure is clear: when claims in a petition are “not

       supported by affidavits, records or other evidence, the trial court [has] no choice but to dismiss

       the post-conviction petition without an evidentiary hearing.” Id. Accordingly, we find the record

       rebuts the presumption that postconviction counsel provided defendant with reasonable

       assistance.

¶ 25          In reaching this conclusion, we reject the State’s argument that postconviction counsel

       reviewed defendant’s pretrial mental health records because defendant’s former postconviction

       counsel possessed the documents. We find the State’s reliance on this fact misplaced. The

       question presented in this appeal is not whether defendant’s former attorney possessed the

       mental health records but, instead, whether defendant’s current postconviction counsel reviewed

       the records. As discussed above, we find no evidence in the record that defendant’s current

       counsel reviewed those records.

¶ 26          In addition, we reject the State’s argument that defendant forfeited the fitness argument

       by failing to raise it on appeal from his conviction and sentence. The relevant pretrial mental

       health records were not part of the record when defendant filed his appeal. In postconviction

       proceedings, where the facts relating to a claim do not appear on the face of the original record,

       forfeiture principles will be relaxed. People v. Eddmonds, 143 Ill. 2d 501, 528 (1991).

¶ 27          “Viewing the above facts in totality, we hold that this matter must be remanded in order

       for [postconviction] counsel to adequately complete the duties mandated by Rule 651(c).” Jones,

       2016 IL App (3d) 140094, ¶ 33 (citing People v. Suarez, 224 Ill. 2d 37 (2007)). “ ‘[R]emand is

       required where postconviction counsel failed to fulfill the duties of consultation, examining the


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       record, and amendment of the pro se petition, regardless of whether the claims raised in the

       petition had merit.’ ” (Emphasis in original.) Id. (quoting Suarez, 224 Ill. 2d at 47).

¶ 28          In closing, we acknowledge that it appears portions of defendant’s pretrial mental health

       records were attached to defendant’s pro se motion to supplement his postconviction petitions

       and are included in the record on appeal. It appears from the record that the motion was never

       considered by the trial court. Moreover, we emphasize the health records appear incomplete in

       that the page numbering shows that pages are missing from the records. Neither party in the

       instant appeal addressed this fact in their briefs. We believe the above facts support our ultimate

       conclusion that remand is necessary at this stage of the proceedings.



¶ 29                                             CONCLUSION

¶ 30          The judgment of the circuit court of Peoria County dismissing defendant’s postconviction

       petitions is reversed and the matter is remanded for postconviction counsel to obtain and review

       defendant’s pretrial mental health records and to amend the petition as necessary.



¶ 31          Reversed and remanded with directions.




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