                                         2017 IL App (3d) 140165

                               Opinion filed January 23, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     THE PEOPLE OF THE STATE OF                       )      Appeal from the Circuit Court
     ILLINOIS,                                        )      of the 10th Judicial Circuit,
                                                      )      Peoria County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )      Appeal No. 3-14-0165
            v.                                        )      Circuit No. 09-CF-684
                                                      )
     WILLIAM A. MALONE,                               )      Honorable
                                                      )      David A. Brown,
            Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

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

                                                OPINION

¶1          The defendant, William A. Malone, appeals from the dismissal of his postconviction

     petition, arguing that postconviction counsel provided unreasonable assistance by failing to

     amend the postconviction petition or withdraw as counsel.

¶2                                                FACTS

¶3          The defendant was convicted of aggravated criminal sexual assault (720 ILCS 5/12-

     14(a)(1) (West 2008)), home invasion (720 ILCS 5/12-11(a)(2) (West 2008)), aggravated

     robbery (720 ILCS 5/18-5(a) (West 2008)), and failure to register as a sex offender (730 ILCS
     150/10 (West 2008)). He was sentenced respectively to natural life imprisonment, 30 years’

     imprisonment, 30 years’ imprisonment, and 10 years’ imprisonment. The home invasion,

     aggravated robbery, and failure to register as a sex offender sentences would all run concurrent

     and would be consecutive to the sentence for aggravated criminal sexual assault. On appeal, this

     court affirmed his convictions, reduced his aggravated robbery sentence to 15 years, and vacated

     a DNA testing fee. People v. Malone, 2012 IL App (3d) 100425-U, ¶ 20.

¶4          The defendant subsequently filed a pro se postconviction petition, claiming: (1) his rights

     were violated when the State filed multiple counts charging the same crime under different

     theories, and home invasion was a lesser included offense of aggravated robbery; (2) one of the

     jurors worked at the same hospital as the victim and another knew the judge; (3) the prosecutor

     made improper comments to discredit the defendant and improperly vouched for the State’s

     witnesses; and (4) he was not eligible for a natural life sentence because his prior sex convictions

     were for criminal sexual abuse.

¶5          The trial court appointed counsel to represent the defendant, and the State filed a motion

     to dismiss, arguing that none of the issues the defendant raised in his pro se petition had merit.

     Postconviction counsel did not amend the defendant’s postconviction petition nor add any

     affidavits or any other supporting documentation. At the hearing on the State’s motion to

     dismiss, the State chose to rest on the arguments contained in their motion to dismiss.

     Postconviction counsel stated that they disagreed with the argument set forth in the State’s

     motion to dismiss, but would also stand on the arguments set forth in the pro se postconviction

     petition. The defendant made a statement at the hearing on the motion to dismiss, which

     expounded on his argument about the prosecutor’s improper comments and potential bias of the

     jurors. The trial court gave the defendant the opportunity to submit further documentation of his


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     claims should he so choose. It does not appear from the record that the defendant submitted any

     further documentation. The trial court took the matter under advisement and ultimately granted

     the State’s motion to dismiss. Postconviction counsel filed a Rule 651(c) certificate. Ill. S. Ct. R.

     651(c) (eff. Feb. 6, 2013).

¶6                                                 ANALYSIS

¶7           On appeal, the defendant argues that postconviction counsel provided unreasonable

     assistance as counsel’s representation amounted to representation “in name only.” Specifically,

     the defendant argues that postconviction counsel should have either amended the postconviction

     petition or moved to withdraw as counsel if he found the petition to be meritless.

¶8           A defendant’s right to postconviction counsel is wholly statutory, and, under the Post-

     Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), a petitioner is only

     entitled to reasonable assistance of counsel. People v. Mason, 2016 IL App (4th) 140517, ¶ 19.

     Reasonable assistance of postconviction counsel is premised on counsel’s compliance with

     Illinois Supreme Court Rule 651(c). Id. Rule 651(c) provides that postconviction counsel must

     file a certificate stating:

                      “that the attorney has consulted with petitioner by phone, mail, electronic means

                      or in person to ascertain his or her contentions of deprivation of constitutional

                      rights, has examined the record of the proceedings at the trial, and has made any

                      amendments to the petitions filed pro se that are necessary for an adequate

                      presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶9           Here, postconviction counsel did not amend the defendant’s pro se postconviction

     petition. Neither the State nor the defendant’s postconviction counsel presented oral arguments at

     the hearing on the State’s motion to dismiss, both solely relying on the arguments in their written


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       documents. Postconviction counsel filed a Rule 651(c) certificate, which stated that he consulted

       with the petitioner, examined the record, and made any necessary amendments to the petition.

¶ 10          The defendant contends that postconviction counsel should have amended the pro se

       petition. Postconviction counsel, however, is not required to amend a defendant’s pro se

       postconviction petition. People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008). Ethical obligations

       prevent counsel from doing so if the claims are frivolous. Id. If the claims are frivolous,

       postconviction counsel has the option of standing on the allegations in the pro se petition or to

       withdraw as counsel. Id. Further, the defendant does not make any recommendation as to how

       counsel could have improved the petition, other than stating that counsel did not attach any

       affidavits supporting the claims. “[T]here is no showing of the existence of any facts or evidence

       on which such affidavits could have been founded. Absent a showing of available material for

       supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by

       the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970). Counsel is not required to go on a

       “fishing expedition” to find facts and evidence outside the record that might support the

       defendant’s claims. See People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005).

¶ 11          Postconviction counsel filed a compliant Rule 651(c) certificate, giving rise to the

       presumption that counsel complied with the rule and provided reasonable assistance. See Profit,

       2012 IL App (1st) 101307, ¶¶ 19, 23. The defendant has failed to rebut that presumption.

       Therefore, we accept that postconviction counsel provided reasonable assistance in that he

       reviewed the record and could not or did not need to make any amendments to the petition to

       adequately present the defendant’s claims.

¶ 12          In coming to this conclusion, we reject the defendant’s contention that if postconviction

       counsel could not amend the pro se petition, he should have withdrawn as counsel. Though


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       People v. Greer, 212 Ill. 2d 192, 211 (2004), allows postconviction counsel to withdraw when

       the allegations of the petition are without merit and frivolous, it does not compel withdrawal

       under such circumstances. Id. (“the Act presents no impediment to withdrawal of counsel”).

       Whether postconviction counsel stood on the pro se petition or withdrew as counsel is a

       distinction without a difference. Further, we note that the trial court gave the defendant the

       opportunity to present a statement at the hearing, which the defendant did. The court also

       allowed the defendant to provide any further documentation prior to the court making its

       decision, which the defendant failed to do. Therefore, the defendant was given the opportunity to

       explain his constitutional deprivations to the trial court, as he claims he could have done had

       postconviction counsel withdrawn.

¶ 13          We also reject the defendant’s reliance on People v. Shortridge, 2012 IL App (4th)

       100663. Postconviction counsel in Shortridge did not just fail to amend the pro se postconviction

       petition or withdraw as counsel, but instead actually “confess[ed] the motion to dismiss” filed by

       the State. (Internal quotation marks omitted.) Id. ¶ 6. We find Shortridge distinguishable on this

       fact alone.

¶ 14                                             CONCLUSION

¶ 15          The judgment of the circuit court of Peoria County is affirmed.

¶ 16          Affirmed.




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