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                                  Appellate Court                            Date: 2018.01.03
                                                                             11:12:35 -06'00'




                      People v. Vinson, 2017 IL App (3d) 150460



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



District & No.        Third District
                      Docket No. 3-15-0460



Rule 23 order filed   September 9, 2017
Motion to publish
allowed               September 29, 2017
Opinion filed         September 29, 2017



Decision Under        Appeal from the Circuit Court of Tazewell County, No. 09-CF-488;
Review                the Hon. Paul P. Gilfillan, Judge, presiding.



Judgment              Affirmed.


Counsel on            Michael J. Pelletier, Peter A. Carusona, and Editha Rosario-Moore, of
Appeal                State Appellate Defender’s Office, of Ottawa, for appellant.

                      Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino,
                      Lawrence M. Bauer, and Mark A. Austill, of State’s Attorneys
                      Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Justice Carter concurred in the judgment and opinion.
                              Justice McDade concurred in part and dissented in part, with opinion.


                                                OPINION

¶1         Defendant, Rick Vinson, appeals the partial dismissal of his postconviction petition at the
       second stage, arguing that postconviction counsel was unreasonable for failing to (1) allege
       ineffective assistance of appellate counsel based on a conflict of interest and (2) attach
       supporting evidence. We affirm.

¶2                                                 FACTS
¶3          After a bench trial, the court found defendant guilty of four counts of criminal sexual
       assault. 720 ILCS 5/12-13(a)(1), (a)(2) (West 2008).1 The court sentenced defendant to two
       consecutive terms of four years’ imprisonment, with two of the four counts merging. During
       trial, defendant was represented by private counsel, Jason Kopec. Kopec continued to
       represent defendant during his direct appeal. This court affirmed defendant’s convictions on
       direct appeal. People v. Vinson, 2011 IL App (3d) 100667-U. In doing so, we noted that two of
       defendant’s arguments were forfeited and defendant failed to argue plain error. Id. ¶¶ 39-41,
       47. We also noted that one of defendant’s arguments was waived because defendant “only
       raise[d] this issue on appeal but [did] not argue it.” Id. ¶ 50.
¶4          Defendant subsequently filed a pro se postconviction petition. The petition alleged,
       inter alia, numerous instances of ineffective assistance of counsel. Specifically, defendant
       argued, in part, that trial counsel was ineffective for failing to (1) properly file motions or
       object during trial to the extent that issues raised on direct appeal were considered waived or
       forfeited, (2) advise defendant on the terms of an alleged plea offer and whether to consider it,
       and (3) advise defendant on what his sentence would be and the percentage of the sentence he
       would have to serve. Defendant argued that appellate counsel was ineffective for failing to (1)
       argue plain error of the forfeited errors and (2) address more fully the issue the appellate court
       deemed waived. Defendant further alleged that he had asked that trial counsel have the Office
       of the State Appellate Defender appointed on appeal, but counsel had ignored defendant’s
       request.
¶5          The circuit court did not rule on defendant’s pro se petition within 90 days. Therefore, the
       court appointed postconviction counsel, and the petition moved to the second stage.
       Postconviction counsel filed a 68-page amended petition and an Illinois Supreme Court Rule
       651(c) (eff. Feb. 6, 2013) certificate stating that he made all amendments necessary for
       presentation of defendant’s contentions. The petition included a footnote that stated: “The
       Defendant denies that he retained his trial counsel for the appeal. The Defendant asserts that he
       had wanted an appellate defender but that his trial counsel never had one appointed.” The
       amended petition advanced all the allegations of ineffective assistance of counsel that

             1
           This statute was subsequently renumbered as section 11-1.20 by Public Act 96-1551 (Pub. Act
       96-1551, art. 2, § 5 (eff. July 1, 2011)).

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     defendant had included in his pro se petition, including specific instances in which Kopec had,
     in the circuit court, failed to (1) object at trial, (2) file motions, and (3) conduct investigations.
     On appeal, Kopec failed to (1) argue plain error for two issues and (2) properly argue and brief
     an issue. The amended petition stated:
             “On the first day of trial, after the lunch break, the Defendant was told by his defense
             trial counsel that the prosecution offered a plea bargain to one count. The defense trial
             counsel told the Defendant that the prosecutor did not mention how many years.
             However, the defense trial counsel stated that the prosecutor could not offer less than
             the Judge would give. Based on Defendant’s prior conversations with his defense
             counsel, the Defendant understood this to mean 4 years DOC at 50% day for day good
             time.”
     The petition argued that Kopec implicitly informed defendant not to take the plea deal because
     the case was going well for defendant and the State “had prepared the victim for a loss.”
     Further, the petition stated:
             “Defense trial counsel had told the Defendant at a pre trial meeting at the jail that
             considering the Defendant’s background, there was no way the Judge was going to
             sentence the Defendant to more than one count at the minimum four years at 50%.
                                                     ***
                  *** The Defendant ultimately received a sentence of 4 years on two counts,
             consecutive, at 85% time. This actual sentence was therefore three times the sentence
             that defense trial counsel told the Defendant pre trial he would receive if found guilty.
                                                     ***
                  *** Had the Defendant been informed that the sentence would be served at 85%
             time, the Defendant would have taken the plea offer on one count.
                  *** Had the Defendant been informed that he would be sentenced on two counts
             post trial, the Defendant would have taken the plea offer on one count.”
     Attached to the petition was an affidavit of defendant. Defendant’s pro se petition was also
     attached as an affidavit.
¶6       The State filed a motion to dismiss arguing, inter alia, (1) defendant’s petition was
     untimely, (2) some of defendant’s claims were waived or barred by res judicata, (3)
     defendant’s claims of ineffective assistance of counsel were not adequately supported, and (4)
     defendant could not show that counsel was deficient or that he was prejudiced. A hearing was
     held on the motion to dismiss. The court issued a written order. The court denied the motion
     with respect to two of defendant’s allegations, stating that (1) defendant’s claim that his right
     to counsel of choice on appeal, if proven, would be structural error and (2) trial counsel’s
     strategy regarding the deoxyribonucleic acid (DNA) chain of custody was not capable of direct
     review as Kopec continued to represent defendant on appeal. However, the court granted the
     motion to dismiss as to every other allegation in the petition.
¶7       The petition proceeded to a third-stage hearing on the issues of “whether or not the
     defendant desire[d] to have his appellate counsel actually handle his appeal, and then
     depending on the outcome of that particular issue, whether or not the chain of custody was
     adequately addressed by counsel during the trial.” After the hearing, the court denied the
     postconviction petition, stating that the court could not conclude that defendant requested
     different counsel on appeal. The court further found that reasonable trial strategy could explain

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       Kopec’s action or inaction regarding the DNA chain of custody.

¶8                                              ANALYSIS
¶9         On appeal, defendant raises two claims of unreasonable assistance of postconviction
       counsel. First, defendant argues that counsel failed “to shape into proper legal form
       [defendant’s] pro se claim that trial counsel was ineffective for representing him on appeal,
       despite the defendant’s request for the appointment of the public defender, and where counsel
       was placed in an irreconcilable conflict that adversely affected his performance on appeal.”
       Stated another way, defendant argues that postconviction counsel should have amended the
       petition to allege ineffective assistance of counsel based on a conflict of interest. Second,
       defendant argues that postconviction counsel failed to attach supporting evidence necessary
       for “defendant’s claim that trial counsel failed to properly advise him on the terms of a plea
       bargain and inaccurately advised him about his potential sentence,” nor did postconviction
       counsel explain why such evidence was not included.
¶ 10       Based on our supreme court’s opinion in People v. Lawton, 212 Ill. 2d 285 (2004), we find
       that postconviction counsel properly amended defendant’s petition to include all necessary
       claims of ineffective assistance of counsel. Further, postconviction counsel’s amended petition
       included an affidavit from defendant stating that the State did not include a term of years when
       presenting a plea offer to Kopec. Because of this and because the lack of an affidavit from the
       State or Kopec may have been trial strategy, we find that counsel’s supporting evidence was
       sufficient.
¶ 11       Though two of defendant’s claims reached the third stage of the postconviction process,
       defendant solely challenges the assistance given by his postconviction counsel at the second
       stage. During second-stage postconviction proceedings, the defendant bears the burden of
       making a substantial showing of a constitutional violation. People v. Schlosser, 2012 IL App
       (1st) 092523, ¶ 15. There is no constitutional right to the assistance of postconviction counsel.
       People v. Suarez, 224 Ill. 2d 37, 42 (2007). Instead, the right to counsel during postconviction
       proceedings is statutory under the Post-Conviction Hearing Act, and petitioners are only
       entitled to a reasonable level of assistance. Id.; 725 ILCS 5/122-1 et seq. (West 2012).
¶ 12       “Postconviction counsel is required only to investigate and properly present defendant’s
       claims.” People v. Russell, 2016 IL App (3d) 140386, ¶ 10. Rule 651(c) requires that appointed
       postconviction counsel make amendments to the petitioner’s pro se postconviction petition
       that are necessary for adequate presentation of the petitioner’s contentions, but counsel is not
       required to make amendments that would further a frivolous or nonmeritorious claim. Ill. S. Ct.
       R. 651(c) (eff. Feb. 6, 2013); People v. Turner, 187 Ill. 2d 406, 412 (1999); People v. Greer,
       212 Ill. 2d 192, 205 (2004). Postconviction counsel’s filing of a Rule 651(c) certificate gives
       rise to the presumption that the defendant received the required representation, but such a
       presumption may be rebutted by the record. Russell, 2016 IL App (3d) 140386, ¶ 10. “ ‘[A]
       defendant is not required to make a positive showing that his counsel’s failure to comply with
       Rule 651(c) caused prejudice.’ ” People v. Ross, 2015 IL App (3d) 130077, ¶ 15 (quoting
       People v. Nitz, 2011 IL App (2d) 100031, ¶ 18).

¶ 13                                   I. Conflict of Interest
¶ 14      Defendant argues that postconviction counsel was unreasonable for failing to allege that
       Kopec was ineffective based on a conflict of interest. In support of his position, defendant

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       relies on Lawton, 212 Ill. 2d 285. The defendant in Lawton was declared a sexually dangerous
       person and appealed. Id. at 287. The attorney that had represented him at trial also represented
       him in his appeal. Id. at 292. The appellate court affirmed. Id. He subsequently filed a petition
       for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
       5/2-1401 (West 2002)) alleging, inter alia, ineffective assistance of counsel. Lawton, 212 Ill.
       2d at 293. The circuit court granted the defendant’s petition, finding that he had not been
       provided effective assistance of counsel, and the State appealed. Id. at 294. The appellate court
       reversed, holding that a section 2-1401 petition was “not an appropriate forum for a defendant
       to raise claims regarding competency of counsel.” Id.
¶ 15       Our supreme court determined that a petition for relief from judgment was the correct place
       for the defendant to raise his ineffective assistance of counsel claim. Id. at 295. The court noted
       that “[p]roceedings under the Sexually Dangerous Persons Act are civil in nature” but that
       defendants subject to the act were entitled to effective assistance of counsel. Id. The court then
       stated:
                     “The right to effective assistance of counsel has no meaning unless a defendant has
                some means to assert it. Where a defendant in a proceeding under the Sexually
                Dangerous Persons Act contends that he was denied effective assistance of counsel at
                trial, he may raise that issue on direct appeal from the circuit court’s judgment.
                [Citation.] When the defendant’s trial counsel goes on to represent him on appeal,
                however, that avenue is likely to be foreclosed. An attorney cannot be expected to
                argue his own ineffectiveness. That is why, for example, trial counsel’s failure to assert
                his own ineffective representation in a posttrial motion does not waive the issue on
                appeal. [Citation.]
                     That is the problem facing Lawton in the case before us here. As we have indicated,
                the lawyer whose actions in the trial court are the basis for Lawton’s claim of
                ineffective assistance of counsel is the same lawyer who handled Lawton’s appeal on
                direct review. To advance Lawton’s argument that he had mishandled the trial
                proceedings would have required the lawyer to argue his own incompetence on appeal.
                To avoid the criticism that he was incompetent would have required that he
                compromise his obligation as an attorney to represent Lawton zealously. The lawyer
                thus faced an inherent conflict of interest.
                     Defendants seeking to challenge the effectiveness of the representation they
                received during their criminal trials have a mechanism for avoiding this problem. If
                their trial counsel continues to represent them on direct review and does not raise the
                issue of the effectiveness of the representation he provided, notions of waiver will yield
                to considerations of fundamental fairness and defendants will still be permitted to
                challenge trial counsel’s effectiveness through proceedings under the Post-Conviction
                Hearing Act.” Id. at 295-96.
       Because the case was civil in nature, however, the defendant could not file a postconviction
       petition in which to raise the ineffectiveness of counsel. Id. at 297. Therefore, the court
       determined that the defendant could have sought relief in a section 2-1401 petition, though the
       court ultimately rejected the defendant’s claim on the merits. Id. at 297, 302.
¶ 16       Ultimately, Lawton provides two takeaways: (1) if an attorney represents a defendant in a
       criminal case during both the trial and the appeal, the defendant can raise ineffective assistance
       of counsel on postconviction and (2) if the same scenario is true in a case under the Sexually

                                                    -5-
       Dangerous Persons Act, the defendant can raise ineffective assistance in a section 2-1401
       petition.
¶ 17       Here, defendant attempts to expand Lawton into the proposition that when counsel
       represents a defendant both during trial and on appeal, postconviction counsel must amend the
       petition to include ineffective assistance of counsel based on a conflict of interest. Lawton does
       not state this, nor does defendant cite any other case with such a result. Lawton is clear that an
       attorney only labors under a conflict of interest if he is forced to argue his own ineffectiveness.
       This scenario is not present in the instant case as Kopec did not argue his own ineffectiveness
       on direct appeal. See id. at 296; see also People v. Sullivan, 2014 IL App (3d) 120312,
       ¶¶ 46-47. Moreover, Kopec was not required to argue his own ineffectiveness since defendant
       could raise the argument in his postconviction petition. Stated another way, representing a
       defendant both during trial and on appeal would only become a conflict of interest, in this
       context, if the attorney was forced to argue his ineffectiveness. As a defendant may always
       bring such a claim in his postconviction petition, an attorney will not be forced to make such an
       argument, and the conflict is avoided. In other words, there is no conflict that must be alleged
       simply because trial counsel continued to represent a defendant on appeal.
¶ 18       Here, postconviction counsel amended defendant’s pro se postconviction petition to
       include each claim of ineffective assistance defendant raised in his pro se petition, including
       the claims of ineffective assistance of appellate counsel. There was no conflict of interest to
       allege as Kopec did not argue his own effectiveness on direct appeal. Therefore,
       postconviction counsel sufficiently presented defendant’s claims of ineffective assistance. See
       Lawton, 212 Ill. 2d at 295-96.

¶ 19                                            II. Affidavit
¶ 20       Defendant contends that postconviction counsel was unreasonable for failing to attach an
       affidavit from either the State or Kopec stating the terms of the plea offered.
¶ 21       Section 122-2 of the Post-Conviction Hearing Act states, “The petition shall have attached
       thereto affidavits, records, or other evidence supporting its allegations or shall state why the
       same are not attached.” 725 ILCS 5/122-2 (West 2014).
               “The evidentiary affidavit attached to a postconviction petition serves two purposes.
               First, it must contain a factual basis sufficient to show the petition’s allegations are
               ‘capable of objective or independent corroboration.’ [People v. Collins, 202 Ill. 2d 59,
               67 (2002).] Second, it must ‘identify with reasonable certainty the sources, character,
               and availability of the alleged evidence supporting the petition’s allegations.’ [People
               v. Delton, 227 Ill. 2d 247, 254 (2008).]” People v. Allen, 2015 IL 113135, ¶ 32.
¶ 22       Postconviction counsel attached a supplemental affidavit of defendant, which was signed
       and notarized. Defendant’s affidavit states, in part:
               “My trial defense counsel also told me that over the noon break (after the morning
               testimony and before the afternoon resumption of the trial) that the prosecutor had
               made a plea offer that I plead guilty to one count. I asked my defense counsel how
               many years and my defense counsel said that the prosecutor did not say how many
               years on the one count.”
       Defendant explicitly states in the affidavit that there was not a term of years offered as part of
       the plea offer. “Absent a showing of available material for supporting affidavits, a failure to


                                                    -6-
       present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall,
       47 Ill. 2d 42, 46 (1970). Defendant has not shown that there were actually any terms to the plea
       offer. In fact, defendant’s affidavit appears to confirm there were no specific terms, with regard
       to years, attached to the offer. Moreover, even if we accept defendant’s contention that there
       was a term of years in the plea, counsel’s decision not to attach an affidavit of the State or
       Kopec may have been strategy as the term of imprisonment offered could have been more than
       the sentence defendant actually received. For these reasons, counsel was not unreasonable for
       failing to attach an affidavit of the State or Kopec.
¶ 23        In coming to this conclusion, we reject defendant’s contention that postconviction counsel
       could have raised the novel argument “that the defendant would have taken a plea to one count,
       regardless of the sentence, because of the sex offender registry requirements.” Postconviction
       counsel need only amend the claims raised by defendant in his pro se petition. People v.
       Garcia-Rocha, 2017 IL App (3d) 140754, ¶ 35; People v. Pendleton, 223 Ill. 2d 458, 476
       (2006) (“While postconviction counsel may conduct a broader examination of the record
       [citation], and may raise additional issues if he or she so chooses, there is no obligation to do
       so.” (Emphasis in original.)). Moreover, postconviction counsel has “no obligation to seek out
       or explore alternative bases for defendant’s claim.” People v. Vasquez, 356 Ill. App. 3d 420,
       425 (2005).

¶ 24                                       CONCLUSION
¶ 25      For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.

¶ 26      Affirmed.

¶ 27        JUSTICE MCDADE, concurring in part and dissenting in part.
¶ 28        The majority upholds the partial dismissal of defendant’s postconviction petition at the
       second stage, finding that postconviction counsel did not act unreasonably in (1) failing to
       allege ineffective assistance of appellate counsel (Kopec) based on a conflict of interest or (2)
       failing to attach an affidavit supporting defendant’s pro se claim that trial counsel (Kopec)
       incorrectly advised him on the terms of his potential plea bargain and sentence. While I concur
       with the majority’s holding as to the first issue, I dissent from the majority’s finding as to the
       second issue. I believe postconviction counsel’s failure to attach an affidavit from the
       prosecutor or Kopec describing the terms of the potential plea agreement constitutes
       unreasonable assistance. Section 122-2 of the Post-Conviction Hearing Act expressly provides
       that “[t]he petition shall have attached thereto affidavits, records, or other evidence supporting
       its allegations or shall state why the same are not attached.” (Emphasis added.) 725 ILCS
       5/122-2 (West 2012). Postconviction counsel did not comply with either mandate.
¶ 29        The importance of trial counsel’s effectiveness cannot be overstated, particularly in
       criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). On appeal, all of the
       applicable standards of review favor upholding the verdict. The likelihood of correcting
       constitutional issues on postconviction review is even lower than on direct appeal. Although
       the procedural scheme in such actions is fair, its implementation is narrowly restricted. At the
       second stage, postconviction counsel is supposed to review the proceedings and discuss the
       contentions of error with the defendant, but counsel is not required to make any arguments or
       raise any issues that the defendant did not raise in his pro se postconviction petition. Russell,

                                                   -7-
       2016 IL App (3d) 140386, ¶ 10. In other words, postconviction counsel need only advance
       those contentions actually raised by a person who is ignorant of the letter and nuances of the
       law in general and the postconviction statute in particular. Counsel is, however, required to
       shape all the claims the defendant has made into proper form. Id. As postconviction counsel is
       not required to raise new issues, it is all the more important that counsel properly shape those
       defendant has raised.
¶ 30       In order to adequately allege ineffective assistance of counsel for incompetency during
       plea negotiations, “a defendant must show the outcome of the plea process would have been
       different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). Stated another
       way, defendant’s postconviction petition had to show that defendant was prejudiced by
       Kopec’s incompetency. Proof of such prejudice cannot be based on mere conjecture or
       speculation as to the outcome. People v. Palmer, 162 Ill. 2d 465, 481 (1994). Further, as the
       majority states (supra ¶ 22), the Post-Conviction Hearing Act requires that a postconviction
       petition “have attached thereto affidavits, records, or other evidence supporting its allegations
       or *** state why the same are not attached.” 725 ILCS 5/122-2 (West 2014).
¶ 31       Without an affidavit or other evidence stating the terms of the plea deal (or possibly
       showing this was just an opening offer to negotiate which counsel discouraged), or a statement
       from postconviction counsel regarding why such support was lacking, any prejudice to
       defendant was speculative and therefore fatal to his petition. Postconviction counsel had a
       responsibility to amend the petition in such a way that the prejudice to defendant during the
       plea process was based on actual evidence, not just conjecture. Palmer, 162 Ill. 2d at 481. As
       counsel did not do so, his performance was unreasonable.
¶ 32       Finally, the majority states, “Moreover, even if we accept defendant’s contention that there
       was a term of years in the plea, counsel’s decision not to attach an affidavit of the State or
       Kopec may have been strategy as the term of imprisonment offered could have been more than
       the sentence defendant actually received.” (Emphasis added.) Supra ¶ 22. I am not aware of
       any case law, nor does the majority cite any, that permits a gloss of “strategy” to excuse
       postconviction counsel’s failure to comply with his statutorily mandated duty to support a
       defendant’s claim or explain why he was unable to do so. Instead, a court’s deference to an
       attorney’s “strategy” is restricted to the context of representation at trial. In contrast,
       postconviction counsel’s discretionary decisions are limited to two choices: (1) attach
       supporting affidavits, records, or other evidence or (2) explain the absence of such documents.
       725 ILCS 5/122-2 (West 2012). There is no “strategy” or excuse justifying an attorney’s
       decision to do neither.
¶ 33       Accordingly, I would reverse the dismissal of defendant’s claim that he received
       ineffective assistance of counsel during plea negotiations and remand for third-stage
       postconviction proceedings.




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