                       Illinois Official Reports

                              Appellate Court



                  People v. Blanchard, 2015 IL App (1st) 132281



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



District & No.    First District, Second Division
                  Docket No. 1-13-2281



Filed             October 13, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 08-CR-3655; the
Review            Hon. Sharon M. Sullivan, Judge, presiding.




Judgment          Remanded; dismissal vacated; fines and fees order modified.



Counsel on        Michael J. Pelletier and Jonathan Krieger, both of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Michele Grimaldi Stein, and Heather Fahrenkrog, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             PRESIDING JUSTICE PIERCE delivered the judgment of the court,
                  with opinion.
                  Justices Neville and Simon concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant Antonio Blanchard, who had been convicted of armed robbery and sentenced
     to 40 years in prison, appeals the trial court’s dismissal, on motion of the State, of his petition
     for postconviction relief. On appeal, defendant contends that his appointed postconviction
     counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c) (eff.
     Dec. 1, 1984) by failing to review trial exhibits that contained evidence he asserts was crucial
     to his pro se claims. For relief, defendant requests remand for compliance with Rule 651(c).
     Defendant further contends that he should receive $5-per-day presentence custody credit
     against the $50 court system assessment.

¶2                                      Appellate Background
¶3        On August 4, 2015, we issued a Rule 23 (Ill. S. Ct. R. 23 (eff. July 1, 2011)) order
     rejecting defendant’s argument that postconviction counsel failed to comply with the
     requirements of Rule 651(c) where her certificates stated she examined the common law
     record and trial transcripts. We also ordered the clerk of the circuit court to modify the fines
     and fees order to reflect a credit of $50. Defendant filed a timely petition for rehearing
     contending our decision regarding postconviction counsel’s compliance with Rule 651(c)
     was in error. By order dated August 27, 2015, we withdrew our Rule 23 order and granted
     the State leave to respond to the petition for rehearing. On September 10, 2015, the State
     filed its response and defendant thereafter filed a reply. After consideration of the parties’
     filings on rehearing, and for reasons hereafter stated, we grant defendant’s petition for
     rehearing, vacate the order dismissing defendant’s pro se petition and remand for
     postconviction counsel to comply with Rule 651(c). We direct the circuit court, after
     compliance with Rule 651(c), to reconsider defendant’s postconviction petition. Further, we
     order modification of the fines and fees order.

¶4                                           Background
¶5        The facts underlying defendant’s conviction are set forth in our decision on direct appeal
     and will be repeated here only as necessary. People v. Blanchard, No. 1-09-0753 (2010)
     (unpublished order under Supreme Court Rule 23). In brief, Michael Malachowsi testified at
     trial that on February 7, 2008, at about 6:30 a.m., defendant approached him, showed him a
     gun, and demanded his wallet. The victim complied, ran from the scene, and then called the
     police. Chicago police officer Hector Agosto testified that upon defendant’s arrest shortly
     thereafter, he performed a custodial search and recovered a “credit card or debit bank card”
     from defendant’s pants pocket. The card, which was later determined to be a credit card,
     belonged to the victim. Later that afternoon, the victim identified defendant in a lineup.
     Among the exhibits introduced by the State at trial were a photograph of the lineup, a
     photograph of defendant alone taken the same day as the lineup, and the victim’s credit card.
¶6        On direct appeal, defendant contended that the evidence was insufficient to convict, that a
     15-year firearm sentencing enhancement was improperly applied, that the trial court failed to
     conduct an adequate inquiry into his posttrial claim of ineffective assistance of counsel and
     failed to appoint new counsel pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), and that
     presentence incarceration credit must be applied toward the $30 Children’s Advocacy Center
     fine imposed by the trial court. We affirmed defendant’s conviction and sentence and ordered

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       modification of his fines. People v. Blanchard, No. 1-09-0753 (2010) (unpublished order
       under Supreme Court Rule 23).
¶7          In December 2011, defendant filed a pro se postconviction petition, raising claims that
       trial counsel was ineffective for not raising lack of probable cause to arrest, not challenging
       the lineup identifications as suggestive where defendant had visible cuts and bruises on his
       forehead and neck, and not challenging the physical evidence; that a detective perjured
       himself at trial; that the State introduced false evidence as to the credit card allegedly taken
       from the victim; that the trial court erred in allowing the prosecutor and defense attorney to
       make improper arguments during the inquiry into defendant’s claims against trial counsel;
       and that he is actually innocent. Defendant attached to his petition portions of trial
       transcripts, selections from police reports, a photocopy of a lineup photograph, and letters to
       him from his appellate counsel.
¶8          The trial court docketed defendant’s petition and appointed the Office of the Cook
       County Public Defender. At the next appearance, postconviction counsel informed the court
       that she had read the appellate briefs and mandates and had ordered the common law records,
       report of proceedings, and trial file. About four months later, in August 2012, counsel wrote
       defendant a letter informing him that she would not be amending his petition to substantiate
       his claims. Among other things, counsel mentioned in the letter that DNA and fingerprint
       testing on the victim’s credit card was “not legally viable because the card was returned to
       [the victim], and has been in his possession for the last four years.” The next day, counsel
       filed a Rule 651(c) certificate, indicating that she had consulted with defendant by letter and
       phone on numerous occasions to ascertain his contentions of deprivations of constitutional
       rights; had obtained and examined the transcripts and common law record, the appellate
       briefs, and the order issued on direct appeal; and had examined defendant’s petition and
       investigated his claims, including his claim of actual innocence. Counsel indicated that the
       petition adequately presented defendant’s claims of deprivations of constitutional rights and
       that, therefore, she had concluded it was unnecessary to make any amendments to the
       petition.
¶9          In September 2012, counsel filed a supplemental postconviction petition, arguing that the
       firearm sentencing add-on violated the proportionate penalties clause and cited new law in
       support of the claim. Along with the petition, counsel filed a new Rule 651(c) certificate,
       again indicating that she had consulted with defendant by letter and phone on numerous
       occasions to ascertain his contentions of deprivations of constitutional rights; had obtained
       and examined the transcripts and common law record, the appellate briefs, and the order
       issued on direct appeal; and had examined defendant’s petition and investigated his claims,
       including his claim of actual innocence. Counsel related that she was unable to supplement
       defendant’s claims of actual innocence and police perjury, but had supplemented his pro se
       claims with the challenge to the firearm sentencing add-on. Counsel stated that the original
       petition together with the supplemental petition adequately presented all of defendant’s
       contentions of substantial deprivations of constitutional rights.
¶ 10        In October 2012, defendant filed a pro se motion for leave to amend his postconviction
       petition. Among other issues, defendant argued that there were problems with the chain of
       custody of the victim’s credit card. Specifically, defendant argued that reports from evidence
       technicians investigating the case did not indicate that such a card was recovered on the day


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       of the crime. Defendant also noted that while counsel had written to him that the card was
       returned to the victim, the card had actually been submitted as an exhibit at trial.
¶ 11        The State filed a motion to dismiss defendant’s petition and supplemental petition.
       Following a hearing, the trial court granted the State’s motion.
¶ 12        On appeal, defendant contends that postconviction counsel provided unreasonable
       assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) because she failed to
       review the trial exhibits, which he asserts contained evidence crucial to his pro se claims.
       Defendant argues that three of his postconviction claims turned on evidence introduced in the
       exhibits at trial: (1) he asserts that his claim of ineffective assistance of trial counsel for
       failing to challenge a suggestive lineup required examination of a lineup photo that depicts
       injuries to his forehead and neck; (2) he argues that his claim that the State used falsified
       evidence when it presented testimony that the victim’s debit or credit card was recovered
       from defendant’s pocket could only be resolved by physical examination of the card; and (3)
       he maintains that examination of that card was also crucial to his claim of actual innocence.
       Defendant concludes that because postconviction counsel failed to examine the exhibits,
       remand for compliance with Rule 651(c) is required.

¶ 13                                               Analysis
¶ 14        Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)),
       petitioners are entitled to a “reasonable” level of assistance of counsel. People v. Perkins,
       229 Ill. 2d 34, 42 (2007). To ensure this level of assistance, Rule 651(c) imposes three duties
       on appointed postconviction counsel. Id. 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 rule’s third obligation does not require counsel to advance nonmeritorious claims on
       defendant’s behalf. People v. Pendleton, 223 Ill. 2d 458, 472 (2006); People v. Greer, 212
       Ill. 2d 192, 205 (2004).
¶ 15        The purpose of Rule 651(c) 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 the rule is sufficient. People v. Profit, 2012 IL App
       (1st) 101307, ¶ 18. Our review of an attorney’s compliance with Rule 651(c) is de novo. Id.
       ¶ 17.
¶ 16        The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that
       postconviction counsel provided reasonable assistance. Id. ¶ 19. Here, postconviction counsel
       filed both an initial Rule 651(c) certificate as well as a second certificate when she filed a
       supplemental postconviction petition. Thus, the presumption exists that defendant received
       the representation required by the rule, and 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.
¶ 17        As proof that counsel failed to review the trial exhibits, defendant points to the letter sent
       to him by counsel in August 2012 in which she states that DNA and fingerprint testing on the
       victim’s credit card was not legally viable because the victim’s bank card was returned to
       him and “has been in his possession for the last four years.” Defendant argues that this

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       statement cannot be true, as the bank card was entered into evidence as an exhibit at trial in
       January 2009. While we agree with defendant that counsel’s letter sets forth a time frame that
       cannot be completely accurate, we disagree with defendant that the letter shows counsel did
       not comply with Rule 651(c). The rule requires that either the record or the certificate 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. Here, counsel
       specifically stated in both her certificates that she had examined the common law record and
       had investigated defendant’s claim of actual innocence. The excerpt from counsel’s letter to
       defendant regarding the location of the victim’s credit card does not prove that she did not
       examine the record or otherwise comply with Rule 651(c). Thus, the long line of authority
       stating that the filing of a Rule 651(c) certificate gives rise to a rebuttable presumption of
       reasonable assistance would ordinarily apply. See, e.g., People v. Bell, 2014 IL App (3d)
       120637, ¶ 10; People v. Kirk, 2012 IL App (1st) 101606, ¶ 19; People v. Jones, 2011 IL App
       (1st) 092529, ¶ 23; People v. Mendoza, 402 Ill. App. 3d 808, 813 (2010); People v. Rossi,
       387 Ill. App. 3d 1054, 1060 (2009); People v. Marshall, 375 Ill. App. 3d 670, 680 (2007).
¶ 18       Defendant does not argue that he has rebutted the presumption of substantial compliance
       but, rather, defendant asserts that counsel’s certificate does not demonstrate compliance with
       Rule 651(c) because it does not indicate that counsel examined the exhibits, specifically the
       lineup photo and the victim’s bank card. Counsel specifically certified that she had examined
       “the transcripts and common law record.” This is important because Illinois Supreme Court
       Rule 612(d) (eff. Sept. 1, 2006) makes Supreme Court Rule 324 applicable to criminal cases
       and Rule 324 states “[t]he record shall be arranged in three sections: the common law record,
       the report of proceedings, and the trial exhibits.” Ill. S. Ct. R. 324 (eff. Feb. 1, 1994); People
       v. Appelgren, 377 Ill. App. 3d 137, 140 (2007) (“The record consists of three parts: the
       common-law record, the report of proceedings, and the trial exhibits.”). We will not presume
       that postconviction counsel failed to review or consider the exhibits simply because she
       failed to mention them explicitly in her Rule 651(c) certificates. However, we are unable to
       determine from counsel’s certificates if she examined Blanchard’s trial exhibits. This is
       especially so because our de novo review shows that the lineup exhibit and the victim’s credit
       card are in fact present in the record on appeal. Thus, while nothing in Rule 651(c) suggests
       that the certificate is intended to be a comprehensive recounting of all of an attorney’s
       postconviction efforts (Jones, 2011 IL App (1st) 092529, ¶ 24) where, as here, the
       postconviction petition identifies specific exhibits as a basis for the petition, good practice
       and completeness calls for the Rule 651(c) certification to address the exhibits in order for
       the presumption of compliance to be invoked and for a proper review of defendant’s claims
       by this court.
¶ 19       Accordingly, we conclude that it is essential to our review that we determine exactly
       what was examined by postconviction counsel. We remand to the trial court to allow
       postconviction counsel to comply with the requirements of Rule 651(c), specifically as it
       relates to the exhibits referenced in defendant’s postconviction petition and to allow a
       supplemental certificate to be filed, if requested. Upon compliance with Rule 651(c), we
       direct the circuit court to reconsider defendant’s petition or amended petition.



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¶ 20       Defendant next contends that pursuant to section 110-14(a) of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/110-14(a) (West 2008)), he should receive $50 worth of
       $5-per-day presentence custody credit against the $50 court system fee under section 5-1101
       of the Counties Code (55 ILCS 5/5-1101(c)(1) (West 2008)) that was imposed by the trial
       court, as he served 399 days in custody awaiting sentence. Defendant argues that the court
       system fee represents a fine and thus should be offset by the $5-per-day presentence custody
       credit. The State, in contrast, asserts that the charge is a fee that compensates the county for
       the cost of maintaining a court system and, therefore, is not subject to presentence
       incarceration credit.
¶ 21       Defendant is correct that an offender who has been assessed one or more fines is entitled
       to a $5-per-day credit for time spent in custody as a result of the offense for which the
       sentence was imposed. 725 ILCS 5/110-14(a) (West 2008). The $5-per-day credit applies to
       “fines,” but not to other fees or costs. People v. Pittman, 2014 IL App (1st) 123499, ¶ 41. A
       “fine” is a charge that is punitive in nature and not intended to compensate the State for costs
       incurred in prosecuting the defendant but, instead, to finance the court system. People v.
       Breeden, 2014 IL App (4th) 121049, ¶ 83 (Appleton, P.J., concurring in part and dissenting
       in part).
¶ 22       In People v. Graves, 235 Ill. 2d 244, 253 (2009), our supreme court held that the various
       charges included in section 5-1101 of the Counties Code represent fines, that is, monetary
       penalties to be paid by a defendant who pleads or is found guilty of certain offenses. This
       court has adopted the conclusion in Graves that the charges imposed under section 5-1101
       are fines in several cases, including People v. Ackerman, 2014 IL App (3d) 120585, ¶ 30,
       People v. Wynn, 2013 IL App (2d) 120575, ¶ 17, and People v. Smith, 2013 IL App (2d)
       120691, ¶ 21. The State acknowledges these decisions, but submits that Graves is
       distinguishable and that the other cases were wrongly decided and should not be followed.
       Despite the State’s urgings, we find no basis to depart from Ackerman, Wynn, Smith, or those
       decisions’ reliance upon the binding authority in Graves. In line with these cases, we hold
       that the $50 court system fee imposed in this case pursuant to section 5-1101(c) is a fine for
       which defendant can receive credit for the 399 days he spent in presentence custody.
       However, because the amount credited may not exceed the total amount of the fines imposed,
       defendant’s $5-per-day presentence custody credit is limited to $50. 725 ILCS 5/110-14(a)
       (West 2008). We order the clerk of the circuit court to modify the fines and fees order to
       reflect this credit.
¶ 23       Finally, defendant acknowledges that by making the above change to the imposed fines,
       his Violent Crime Victim Assistance fine must be revised upwards from $4 to $8. 725 ILCS
       240/10(b) (West 2008); People v. Jamison, 229 Ill. 2d 184, 193 (2008). We accept
       defendant’s position. Accordingly, we order the clerk of the circuit court to modify the fines
       and fees order to reflect this increase.

¶ 24      Remanded; dismissal vacated; fines and fees order modified.




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