                                                                          Digitally signed by
                                                                          Reporter of
                                                                          Decisions
                                                                          Reason: I attest to
                        Illinois Official Reports                         the accuracy and
                                                                          integrity of this
                                                                          document
                               Appellate Court                            Date: 2019.03.26
                                                                          12:56:25 -05'00'




                  People v. Shelton, 2018 IL App (2d) 160303



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



District & No.     Second District
                   Docket No. 2-16-0303



Filed              November 19, 2018



Decision Under     Appeal from the Circuit Court of Kane County, No. 09-CF-201; the
Review             Hon. Linda Abrahamson, Judge, presiding.



Judgment           Vacated and remanded with directions.


Counsel on         James E. Chadd, Thomas A. Lilien, and Paul Alexander Rogers, of
Appeal             State Appellate Defender’s Office, of Elgin, for appellant.

                   Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
                   Delfino, David J. Robinson, and Mary Beth Burns, of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE McLAREN delivered the judgment of the court, with
                   opinion.
                   Justices Hutchinson and Zenoff concurred in the judgment and
                   opinion.
                                                OPINION

¶1       Defendant, Christopher Shelton, appeals from the trial court’s order dismissing his
     petition for relief from judgment, which was originally a postconviction petition. Defendant
     argues that he was deprived of reasonable assistance of counsel under the Post-Conviction
     Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). We vacate and remand for
     further proceedings.

¶2                                       I. BACKGROUND
¶3       In March 2009 defendant was charged with four counts of criminal sexual assault (Class
     1 felonies) and four counts of aggravated criminal sexual assault (Class X felonies). The
     State alleged that each offense occurred against the same woman, H.M., on January 17, 2009.
     The charges were based on two alleged acts of sexual penetration: one where defendant’s
     penis touched H.M.’s “sex organ” and the other where defendant’s finger penetrated H.M’s
     “sex organ.”
¶4       On December 18, 2009, defendant, who was represented by appointed counsel, entered a
     negotiated guilty plea. In exchange for a 12-year prison term and the dismissal of the other
     charges, defendant agreed to plead guilty to count III of the indictment, which charged
     defendant with aggravated criminal sexual assault “in that by the use of force the defendant
     committed an act of sexual penetration in that his penis touched the sex organ of [H.M.] and
     in so doing the defendant caused bodily harm to [H.M.]” in violation of sections 12-13(a)(1)
     and 12-14(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-13(a)(1),
     12-14(a)(2) (West 2008)).
¶5       On December 18, 2009, the trial court, Judge Thomas J. Mueller presiding, advised
     defendant that by pleading guilty he was waiving certain rights, “including the right to take
     this case to a jury trial” and the right to “remain silent.” The trial court also advised
     defendant that the offense at issue was punishable by a prison sentence falling “somewhere
     between six and 30 years”; that the “proposed disposition” involved a 12-year term; and that,
     when he completed his sentence, defendant “would then have to begin serving a three-year
     term of what is called mandatory supervised release.”
¶6       The State presented a factual basis for the charge. The trial court read count III of the
     indictment. Defendant told the trial court that he understood he was pleading guilty to that
     charge. The trial court then sentenced defendant to 12 years’ imprisonment “followed by
     three years of mandatory supervised release.” After imposing sentence, the trial court told
     defendant that he had 30 days to file a motion to withdraw his guilty plea and that, if that
     motion were denied, defendant could then file a notice of appeal. Defendant indicated that he
     understood. The trial court entered two sentencing orders, neither of which mentions a term
     of mandatory supervised release (MSR).1
¶7       On September 12, 2014, defendant, pro se, filed a verified petition seeking relief under
     section 122-1 of the Act (725 ILCS 5/122-1 (West 2014)). The trial court appointed counsel

         1
          The sentencing order signed by the trial court improperly indicates that count III involved a
     violation of section 12-14(a)(5) of the Criminal Code, which makes the aggravating factor the victim’s
     age. See 720 ILCS 5/12-14(a)(5) (West 2008).

                                                   -2-
       to represent defendant. In defendant’s verified petition, he alleged that his constitutional
       rights had been violated because “in the police report the victim stated she had consentual
       [sic] sex with [defendant], making the prosecutor aware that this wasn’t a rape case.”
       Defendant also contended that “if this evidence was exposed [he] never would have coped
       [sic] out[,] rendering his cop out void.”
¶8         On September 25, 2014, the trial court appointed the Kane County Public Defender’s
       Office to represent defendant regarding his postconviction petition.
¶9         On October 24, 2014, appointed counsel, Assistant Public Defender Beth Peccarelli,
       stated in open court that she had met defendant that day, had “discussed some of his
       allegations [and was] trying to track down [his pro se] petition and other information.”
¶ 10       On January 16, 2015, during a status call, Peccarelli told the trial court that she intended
       to “confer with [defendant] and provide [her] certificate.”
¶ 11       On April 20, 2015, Peccarelli filed an “Amended Petition for Relief From Judgment
       Pursuant to” section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401
       (West 2016)). The petition requested “relief from an involuntary plea and sentence,” alleging
       and arguing the following. Defendant previously filed a postconviction petition wherein he
       provided a “recitation of his subjective view of the evidence he is currently aware of and that
       he does not believe it is sufficient to support his plea of guilty.”
               “Although the original petition was brought under the Post-Conviction Act, and was
               characterized as such[,] the circumstances are such that the matter is also suited as
               Relief from Judgment in light of the civil nature of the [A]ct and this petition’s
               allegations that there was [an] insufficient factual basis to support his plea
               agreement.”
       Defendant “believes that he cannot be found guilty because the victim consented to sexual
       contact.” Because defendant’s “understanding was not borne out in the execution of the plea
       agreement,” defendant’s plea was involuntary. “Additionally, the plea of guilty and judgment
       order dated December 18, 2009, reflects that the plea is to Count III but the recitation of the
       factual basis and the cited statute are consistent with Count IV, not Count III, rendering the
       plea voidable.” (Emphasis added.) At the time of defendant’s plea, the trial court admonished
       defendant incorrectly “in that the mandatory supervised release that is being imposed is 3
       years to life, significantly different than the admonished 3 year period.”
¶ 12       On June 12, 2015, the State filed a motion to dismiss defendant’s amended section
       2-1401 petition, arguing that it was not filed within two years as required by section
       2-1401(c). The State also argued that the exception to the two-year rule did not apply because
       defendant failed to allege that the judgment was void. On the same date, the parties appeared
       before the trial court, with Assistant Public Defender Brenda Willet representing defendant.
       Defendant was present. Willet informed the trial court that defendant’s case was being
       reassigned to yet another attorney, and the case was continued to September 16, 2015.
       However, on September 10, the trial court reset the matter for November 6, 2015.
¶ 13       On November 6, 2015, Assistant Public Defender Britt Hawkins requested a continuance,
       which the trial court granted. Defendant was present.
¶ 14       On November 19, 2015, by agreement of the parties, the trial court set the hearing on the
       State’s motion to dismiss for January 29, 2016. Defendant was present.



                                                  -3-
¶ 15        On January 29, 2016, the State argued that defense counsel “switched” defendant’s
       postconviction petition to a section 2-1401 petition and that it must be dismissed as untimely
       because it failed to allege that the judgment was “void.” Hawkins argued that the trial court’s
       judgment was “voidable” because (1) the trial court incorrectly admonished defendant
       regarding the applicable period of MSR and (2) the factual basis did not support the specific
       charge to which defendant pled guilty. The trial court, Judge Linda Abrahamson presiding,
       granted the State’s motion to dismiss. Thereafter, the trial court stated, “the Department of
       Corrections [(DOC)] sent a letter to the state’s attorney’s office saying that the paper work on
       the plea called for MSR of three.” The State replied, “I think that was, as the defendant said,
       improper.” The trial court replied:
                     “Right, so, I agree that the admonishment was to three, not three to life, but the
                paperwork was also three, not three to life; and DOC doesn’t know what to do. Needs
                it fixed. So we need in here to address it in some way.
                     So I am going to grant the motion to strike without prejudice. If you think there’s
                something that can or should be repled, I’m going to invite you to do that.
                     And so I am going to set it for another date because I need some suggestions on
                how this can be fixed if at all.”
¶ 16        On February 29, 2016, Hawkins filed a “Second Amended Petition for Relief From
       Judgment Pursuant to 735 ILCS 5/2-1401,” reiterating the allegations contained in the first
       amended section 2-1401 petition and adding the following. “Just prior to September 12,
       2014,” the DOC informed defendant “that he was subject to [MSR] of 3 years to life. ***
       Defendant did not agree to this” when he pled guilty and “defendant was admonished that he
       would receive *** a 3 year [MSR] period.” The “3 years to natural life” MSR period was
       “significantly different” from the “admonished 3[-]year period.” Further, the second
       amended section 2-1401 petition fell “within the 2[-]year time limit for filing” because “the
       above information was not given to the Defendant until September of 2014.” In support of
       defendant’s section 2-1401 petition, on March 2, 2016, Hawkins filed defendant’s affidavit
       stating that in August 2014 the DOC told defendant that his MSR period would be “3 years
       to life,” which was “different than what was said at [his] plea.” Based on this information, he
       “began researching and filed [his] Pro Se Post-Conviction Petition[,] September 12, 2014.”
¶ 17        On March 2, 2016, the parties appeared before the trial court and sought a continuance,
       which was granted so that the State could file a motion to dismiss.
¶ 18        On April 22, 2016, the trial court heard argument on the State’s motion to dismiss
       defendant’s second amended section 2-1401 petition. We note that the State’s motion is not
       contained in the record, but the trial court and the parties acknowledged that it was filed. The
       State argued the following. The trial court “had the power to give an MSR sentence which in
       this case was wrong.” This was “a mistake of law in explaining a sentencing range and a
       mistake of fact in deciding the voluntariness of the plea.” These mistakes did not cause the
       trial court to “lose jurisdiction,” and therefore they did not “create a void judgment. [They
       make] it voidable, [meaning] it’s not able to be attacked beyond two years.”
¶ 19        On April 22, 2016, after hearing argument, the trial court dismissed defendant’s second
       amended section 2-1401 petition as untimely. Defendant filed his notice of appeal the same
       day.



                                                   -4-
¶ 20                                          II. ANALYSIS
¶ 21        Defendant argues that he was deprived of reasonable assistance of counsel under the Act.
       Defendant contends that counsel’s failure to comply with Illinois Supreme Court Rule 651(c)
       (eff. July 1, 2017) requires a remand for further proceedings. The State argues that counsel
       provided reasonable assistance because (1) the “record shows no failure to comply with Rule
       651(c)” and (2) neither the Act nor the rule “precludes appointed counsel from recasting a
       post-conviction petition as a petition for relief from judgment.” The State also argues that the
       trial court properly dismissed defendant’s section 2-1401 petition as untimely.

¶ 22                                       A. Standard of Review
¶ 23        There is no constitutional right to the assistance of counsel in postconviction proceedings.
       People v. Suarez, 224 Ill. 2d 37, 42 (2007); see 725 ILCS 5/122-4 (West 2016). Thus,
       defendants are entitled only to the level of assistance provided by the Act. People v. Turner,
       187 Ill. 2d 406, 410 (1999). We review de novo issues of statutory and rule interpretation as
       well as the dismissal of a postconviction petition without an evidentiary hearing. Suarez, 224
       Ill. 2d at 42 (postconviction petition); People v. Chatman, 2016 IL App (1st) 152395, ¶ 23
       (statutory and rule interpretation). We also review de novo the dismissal of a section 2-1401
       petition. People v. Vincent, 226 Ill. 2d 1, 18 (2007).

¶ 24                               B. The Post-Conviction Hearing Act
¶ 25       The Act provides a method for an individual subject to a criminal sentence to challenge a
       conviction by alleging that it was the result of a substantial denial of federal or state
       constitutional rights, or both. 725 ILCS 5/122-1 et seq. (West 2016). The Act provides a
       three-stage process to adjudicate petitions. People v. Cotto, 2016 IL 119006, ¶ 26. At the first
       stage, the trial court determines whether the petition is “frivolous or is patently without
       merit.” 725 ILCS 5/122-2.1(a)(2) (West 2016). If the petition is not dismissed at the first
       stage, it advances to the second stage. Cotto, 2016 IL 119006, ¶ 26.
¶ 26       During second-stage proceedings, an indigent defendant is entitled to appointed counsel,
       who may amend the petition as necessary. 725 ILCS 5/122-4 (West 2016). Counsel is
       required to make any amendments to the pro se petition that are necessary for an adequate
       presentation of the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017); People v.
       Pendleton, 223 Ill. 2d 458, 472 (2006). After counsel makes any necessary amendments to
       the pro se petition, the State may either answer or move to dismiss the petition. 725 ILCS
       5/122-5 (West 2016); Pendleton, 223 Ill. 2d at 472. The trial court then determines whether
       the petition and any supporting documents make a substantial showing of a constitutional
       violation. 725 ILCS 5/122-6 (West 2016); Pendleton, 223 Ill. 2d at 473. If such a showing is
       made, the petition proceeds to the third stage, where the trial court conducts an evidentiary
       hearing on the merits of the petition. 725 ILCS 5/122-6 (West 2016).

¶ 27                                    C. Reasonable Assistance
¶ 28        Here, defendant’s petition advanced to the second stage and counsel was appointed.
       Pursuant to the Act, a defendant is entitled to “reasonable” assistance of counsel. Turner, 187
       Ill. 2d at 410. The legislature anticipated that most petitions filed under the Act would be
       filed by prisoners who lacked the assistance of counsel. People v. Johnson, 154 Ill. 2d 227,


                                                   -5-
       237 (1993). As a result, to ensure that a prisoner’s claims will be adequately presented, the
       Act contemplates that appointed counsel will ascertain the basis of his claims, shape those
       claims into an appropriate legal form, and present those claims to the court. Id. at 237-38. To
       ensure that defendants receive this level of assistance, Rule 651(c) imposes specific duties on
       appointed counsel and requires the record to disclose that counsel has fulfilled those duties.
       People v. Schlosser, 2012 IL App (1st) 092523, ¶ 18.
¶ 29        Rule 651(c) requires the record in postconviction proceedings to demonstrate that
       appointed counsel “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 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. July 1, 2017). While counsel is not always required to
       amend a defendant’s pro se petition, Rule 651(c) provides that an amendment must be made
       if it is necessary for an adequate representation of his claims. Turner, 187 Ill. 2d at 412; see
       also People v. McDonald, 2018 IL App (3d) 150507, ¶ 27. In addition, “Rule 651(c) requires
       counsel to amend an untimely pro se petition to allege any available facts necessary to
       establish that the delay was not due to the petitioner’s culpable negligence.” People v.
       Perkins, 229 Ill. 2d 34, 49 (2007). Rule 651(c) also requires counsel to file a certificate
       showing compliance with these requirements. Id. Counsel’s certificate of compliance creates
       a presumption that she complied with the requirements, but that presumption can be rebutted.
       See Schlosser, 2012 IL App (1st) 092523, ¶ 33. However, if counsel fails to file a Rule
       651(c) certificate, a reviewing court will not presume that counsel has complied with the
       rule; rather, the record must explicitly show that counsel met the rule’s requirements. People
       v. Carrizoza, 2018 IL App (3d) 160051, ¶ 12. Counsel’s failure to comply with Rule 651(c)
       requires a remand for further postconviction proceedings. Suarez, 224 Ill. 2d at 47; People v.
       Nitz, 2011 IL App (2d) 100031, ¶ 18. Further, “[w]here counsel fails to make necessary
       amendments [to the defendant’s pro se petition], his or her performance is unreasonable, and
       remand for further proceedings is the remedy.” McDonald, 2018 IL App (3d) 150507, ¶ 27
       (citing Turner, 187 Ill. 2d at 414).
¶ 30        Here, appointed counsel failed to file a Rule 651(c) certificate, and the record shows that
       counsel failed to meet the rule’s requirements. Although Peccarelli stated in court that she
       met with defendant and intended to “confer” with him, and although counsel filed two
       amended pleadings, the record does not show that counsel met the requirements of Rule
       651(c) or otherwise provided reasonable assistance to defendant. The fact that counsel filed a
       section 2-1401 petition does not ameliorate the lack of the certificate or the need for the
       record to establish compliance with Rule 651(c).
¶ 31        Appointed counsel, the State, and the trial court knew that defendant had been incorrectly
       admonished regarding the length of his MSR period. During oral argument, the State
       conceded that a “mistake was made.” Indeed, the trial court admonished defendant that his
       12-year prison term would be followed by an MSR period of three years. Actually, however,
       defendant is statutorily mandated to serve an MSR period of three years to natural life. See
       730 ILCS 5/5-8-1(d)(4) (West 2016).
¶ 32        Defendant’s counsel had a duty to shape defendant’s petition into “appropriate legal
       form.” Johnson, 154 Ill. 2d at 238. Counsel should have filed a petition under the Act,
       alleging that defendant’s due process rights were violated by the trial court’s failure to

                                                  -6-
       admonish him of the actual MSR period (see People v. Whitfield, 217 Ill. 2d 177 (2005)) or
       that his right to effective assistance of counsel was violated where counsel failed to inform
       him of the actual MSR period (see, e.g., People v. Pugh, 157 Ill. 2d 1 (1993)). In any case,
       defendant would have to show prejudice, that but for either the court’s or counsel’s failure he
       would not have pled guilty. Id. at 15; People v. Snyder, 2011 IL 111382, ¶ 32.
¶ 33       Here, during the proceedings on the State’s motion to dismiss the initial section 2-1401
       petition, the trial court recognized the sentencing error and the need to take corrective action.
       Thus, the trial court dismissed the initial section 2-1401 petition without prejudice.
¶ 34       However, given this new opportunity, counsel filed another section 2-1401 petition,
       arguing, again, that defendant’s judgment was merely “voidable.” This section 2-1401
       petition alleged that defendant did not know about the statutorily mandated MSR until
       September 2014 and included defendant’s affidavit establishing the same. Thus, had counsel
       filed the petition under the Act instead of under section 2-1401, these facts, if proven, would
       have established that defendant’s delay was not due to his culpable negligence (see 725 ILCS
       5/122-1(c) (West 2016)). However, counsel again used a legally inadequate procedural
       vehicle, section 2-1401.
¶ 35       Section 2-1401 of the Code provides a mechanism to collaterally attack a “final judgment
       older than 30 days.” Vincent, 226 Ill. 2d at 7. A section 2-1401 petition generally must be
       filed not later than two years after the entry of the challenged judgment, excluding the time
       that the ground for relief was fraudulently concealed. 735 ILCS 5/2-1401(c) (West 2016)
       (also excluding the time that the petitioner was under legal disability or duress). However, a
       void judgment can be attacked at any time through a section 2-1401 petition. Id. § 2-1401(f);
       People v. Thompson, 2015 IL 118151, ¶ 29. A judgment is void where the court lacked either
       personal jurisdiction or subject-matter jurisdiction, and then the judgment can be challenged
       at any time, including collaterally. People v. Castleberry, 2015 IL 116916, ¶ 15. In contrast, a
       judgment is merely voidable where it was entered erroneously by a court having jurisdiction
       and, thus, is not subject to collateral attack. Id. ¶ 11.
¶ 36       Here, defendant was sentenced on December 18, 2009, but counsel did not file the first
       section 2-1401 petition until April 20, 2015, well beyond the two-year limitations period.
       However, counsel failed to allege any of the exceptions to the section 2-1401 two-year
       limitations period. In particular, counsel failed to allege facts to establish that the State
       fraudulently concealed defendant’s actual MSR period of three years to life. To make matters
       worse, counsel alleged and argued that defendant should be granted relief under section
       2-1401 because the trial court’s judgment was “voidable” rather than “void.” As a result,
       defendant’s section 2-1401 petition, which was filed more than two years after his
       sentencing, was properly dismissed as untimely.
¶ 37       Accordingly, a remand is necessary. Under Rule 651(c), the issue is not whether a
       defendant’s claims have merit. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 44. “The
       problem is that, when postconviction counsel does not complete the few duties imposed by
       the rule, the limited right to counsel conferred by the Act becomes illusory.” Id.

¶ 38                                     III. CONCLUSION
¶ 39      For the reasons stated, we vacate the trial court’s dismissal of defendant’s petition. The
       cause is remanded with directions for the trial court to allow defendant leave to replead his
       postconviction petition and for further second-stage proceedings, with the assistance of

                                                   -7-
       appointed counsel pursuant to section 122-4 of the Act (725 ILCS 5/122-4 (West 2016)). In
       addition, appointed counsel must fully comply with Rule 651(c).

¶ 40      Vacated and remanded with directions.




                                                  -8-
