                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            People v. Kirk, 2012 IL App (1st) 101606




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



District & No.             First District, First Division
                           Docket No. 1-10-1606


Filed                      September 24, 2012


Held                       Defendant’s postconviction counsel rendered unreasonable assistance by
(Note: This syllabus       failing to amend defendant’s pro se postconviction petition to include a
constitutes no part of     claim of ineffective assistance of defendant’s appellate counsel based on
the opinion of the court   his failure to comply with his duties under Supreme Court Rule 651(c);
but has been prepared      therefore, the cause was remanded to the trial court with directions to
by the Reporter of         conduct a second-stage hearing after allowing defendant an opportunity
Decisions for the          to amend his petition.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 05-CR-12227; the
Review                     Hon. Charles P. Burns, Judge, presiding.



Judgment                   Reversed and remanded with instructions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Jonathan Yeasting, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

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


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Hoffman and Justice Rochford concurred in the
                           judgment and opinion.



                                             OPINION

¶1          Defendant Wayne Kirk appeals from the second-stage dismissal of his pro se petition for
        relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2010).
        He contends that postconviction counsel failed to provide him with reasonable assistance
        under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) because counsel did not amend
        his pro se postconviction petition or procure affidavits from witnesses.

¶2                                         BACKGROUND
¶3          The record shows, in relevant part, that on May 8, 2005, the defendant shot his
        roommate, William Herron, during an argument in the townhouse they shared with four
        others at 145 East 133rd Street, in Chicago. Herron suffered severe injuries as a result of the
        shooting, including wounds to his arm and back, a broken rib, and a collapsed lung.
¶4          Prior to trial, the defendant repeatedly expressed his desire for a speedy trial, and when
        he did so on January 24, 2006, the following discussion was had:
                “MR. KIRK [defendant]: I want to go to trial without the witness. There’s only one
            witness.
                THE COURT: We’ll set it for trial. Now, you understand your attorney is not able
            to call any witnesses, you’re waiving your defense?
                MR. KIRK: There is only one witness and I have an affidavit from him saying he’s
            not going to press charges.
                THE COURT: It’s not up to him to press charges.
                MS. SIMS [defense counsel]: I had this conversation with Mr. Kirk on more than one
            occasion. I explained to him it’s the State’s Attorney’s decision whether or not to press
            charges.


                                                  -2-
              THE COURT: Right. If he wants to go to trial without the witnesses.
              MR. KIRK: There are no witnesses.
              MS. [SIMS]: And we also need to file an answer alleging an affirmative defense, and
         I did explain to Mr. Kirk about Lynch witnesses, a woman we’re trying to bring in.”
     Following this exchange, the court tentatively set the case for trial on March 6, 2006.
¶5       The tentative trial date passed, and on March 21, 2006, counsel informed the court that
     she “had subpoenaed some material about the alleged victim in this case, Lynch material.”
     A Lynch hearing1 was then set for April 3, 2006, and later rescheduled for April 10, 2006.
     The report of proceedings for that date does not contain a transcript of a Lynch hearing, and
     the memorandum of orders does not reflect that the court ruled on Lynch materials.
     Nevertheless, at the following hearing on May 5, 2006, counsel reminded the court, “[o]n the
     last court date you ruled on Lynch material,” and the State responded, “That’s correct.”
¶6       At the ensuing bench trial, the defendant testified that he shot Herron in self-defense, and
     the court ultimately found him guilty of aggravated battery with a firearm. The defendant
     then filed a motion for a new trial alleging, inter alia, that “[t]he Court erred in limiting
     Lynch evidence to only the defendant’s testimony. Mr. Kirk and Mr. Herron were members
     of the same household, and other’s [sic] in the home could have testified to Mr. Herron’s
     aggressive and violent nature.” The trial court denied the motion and sentenced the defendant
     to six years’ imprisonment. This court affirmed the defendant’s conviction and sentence on
     direct appeal over his claim that the State failed to disprove his use of self-defense beyond
     a reasonable doubt. People v. Kirk, No. 1-06-1969 (2008) (unpublished order under Supreme
     Court Rule 23).
¶7       On July 14, 2008, the defendant filed a pro se petition for postconviction relief alleging
     that trial counsel was ineffective for failing to present the documents attached to his petition
     which, he claimed, “show reasonable doubt” and could have proved his claim of self-
     defense. He also alleged:
         “Although there were not any eyewitnessess [sic] to the actual occurrence. There are
         several witnessess [sic] that could have been called. The victim’s sister Angenette
         Holloway the defendant’s fiancé[e] and her son Ramon Herron. They both would have
         testified to the victim’s violent behavior as they both have witnessed his behavioral
         patterns in the past. Also the arresting officers from the victims [sic] recent battery case
         (Riverdale police report) Officer Pearson #128 and Officer Belliveau #139 could have
         testified to the victims [sic] violent behavior at the time of the recent battery case.”
¶8       The defendant attached to his petition a Riverdale police department report from
     September 5, 2005, regarding a domestic battery incident in which Herron was the suspect
     and his fiancée Julie Mayes was the victim. He also attached a report showing two 911 calls
     made from 145 East 133rd Street on May 8, 2005, as well as a copy of a police report for that


            1
              In People v. Lynch, 104 Ill. 2d 194, 200 (1984), the supreme court held that when self-
     defense is raised, the defendant may present appropriate evidence of the victim’s aggressive and
     violent character to establish the victim as the aggressor.

                                               -3-
       incident.
¶9          At a hearing on March 18, 2009, an assistant public defender (APD) informed the court
       that two undated and unsigned memorandum orders, drafted by two different judges, one of
       which was file-stamped, had been found. Each order dismissed the defendant’s
       postconviction petition as frivolous and patently without merit. The case was then passed,
       and when it was recalled, the court noted, “[a]fter looking at this, after talking with the staff
       attorney, I am going to have to docket this.” Consistent with section 122-2.1(b) of the Act
       (725 ILCS 5/122-2.1(b) (West 2010)), the court docketed the defendant’s postconviction
       petition and appointed the public defender to represent him.
¶ 10        On April 27, 2009, postconviction counsel presented the court with an order for
       transcripts and the record, and as of December 14, 2009, counsel was still trying to obtain
       the transcripts of the Lynch hearing. On January 14, 2010, counsel filed a Rule 651(c) (Ill.
       S. Ct. R. 651(c) (eff. Dec. 4, 1984)) certificate in which she noted, inter alia, “I have
       examined Petitioner’s pro se Petition for Post-Conviction Relief and, as it adequately
       presents his issues, a supplemental petition will not be presented.”
¶ 11        On March 11, 2010, a new APD informed the court that he had taken over the
       defendant’s case. That same day, the State filed a motion to dismiss the defendant’s petition,
       asserting that postconviction counsel had violated Illinois Supreme Court Rule 137 (Ill. S.
       Ct. R. 137 (eff. Feb. 1, 1994)) by adopting a frivolous pleading and that the petition was
       based on conclusory allegations which failed to state a cognizable claim. In the motion, the
       State also expressed its displeasure with counsel’s failure to amend the petition or withdraw
       as counsel, noting that “[t]he petition must now be deciphered by the People and by this
       Honorable Court,” and that “the services of appointed counsel, paid by the taxpayers to
       represent petitioner, would really have come in handy.”
¶ 12        A hearing was held on the State’s motion on April 15, 2010. There the State argued, inter
       alia, that:
            “[W]ith post-conviction petitions when a pro-se petition such as this one have no valid
            claims, the attorney is supposed to state so and withdraw.
                Here the pro-se petition was just adopted and passed onto the Court and two [sic]
            State to comb through and try and figure out what the defendant was talking about.”
¶ 13        In response, counsel asserted that “if what [the State] is dictating is that I should now
       withdraw because there is no meritorious claim, I also reject that.” Counsel conceded “that
       as far as trial counsel, trial counsel’s hands were tied by this Lynch hearing as to what kind
       of evidence she could present.” However, counsel stated that “the issue I present to you today
       is ineffective assistance of Appellate Counsel.” Counsel argued that he had certification “that
       there is no transcript of this alleged Lynch hearing,” and that “the appeal that was filed went
       only to reasonable doubt instead of specifically highlighting the issue of the Lynch hearing
       and what information was or was not allowed in.” Counsel then concluded, “I don’t think
       that this is a non-meritorious claim. I believe that this has merit to it. We don’t have the
       hearing. Appellate counsel did not even raise the issue.” The State replied that counsel’s
       raising of this argument was “a total ambush.”
¶ 14        On June 1, 2010, the circuit court entered a written order noting that the defendant’s “pro

                                                 -4-
       se petition is unclear and fails to allege a coherent claim,” and that “appointed counsel’s
       decision to adopt the pro se petition, without clarifying the alleged claims, leaves this Court
       the job of deciphering the petition.” The court also found that the defendant waived his
       sufficiency of the evidence claim, that his allegation of ineffective assistance of trial counsel
       was baseless, conclusory, and unsupported by affidavits from the witnesses whom counsel
       allegedly failed to contact, and, ultimately, that he failed to make a substantial showing of
       a constitutional violation. The court thus granted the State’s motion to dismiss the
       defendant’s postconviction petition. Also on June 1, 2010, the defendant filed a timely notice
       of appeal of the trial court’s order which dismissed his pro se postconviction petition.

¶ 15                                          ANALYSIS
¶ 16        On June 1, 2010, the trial court dismissed the defendant’s pro se postconviction petition.
       Also on June 1, 2010, the defendant filed a timely notice of appeal. This court has
       jurisdiction to consider the defendant’s arguments on appeal pursuant to Illinois Supreme
       Court Rule 651(a) (eff. Dec. 1, 1984).
¶ 17        On appeal, the defendant does not challenge the dismissal of his postconviction petition
       on the merits. Rather, he contends that postconviction counsel rendered unreasonable
       assistance by failing to amend his pro se postconviction petition or procure supporting
       affidavits, and that his case should be remanded for second-stage proceedings. Our review
       of the dismissal of a petition without an evidentiary hearing is de novo. People v. Coleman,
       183 Ill. 2d 366, 387-88 (1998).
¶ 18        We observe that the right to postconviction counsel is a matter of legislative grace and
       that a postconviction petitioner is only entitled to a reasonable level of assistance. People v.
       Thompson, 383 Ill. App. 3d 924, 931 (2008). That said, Rule 651(c) imposes specific duties
       on postconviction counsel to ensure that counsel provides that reasonable level of assistance.
       People v. Suarez, 224 Ill. 2d 37, 42 (2007). The rule requires that postconviction counsel
       consult with the defendant to ascertain his contentions of the deprivation of constitutional
       rights, examine the record of the proceedings at trial, and make any amendments to the
       defendant’s pro se petition that are necessary for an adequate presentation of his contentions.
       Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984).
¶ 19        Compliance with Rule 651(c) may be shown by the filing of a certificate representing that
       counsel has fulfilled her duties. People v. Perkins, 229 Ill. 2d 34, 50 (2007). The filing of the
       certificate gives rise to the presumption that the defendant received the required
       representation during second-stage proceedings (People v. Mendoza, 402 Ill. App. 3d 808,
       813 (2010)); however, this presumption may be rebutted by the record (People v. Marshall,
       375 Ill. App. 3d 670, 680 (2007)).
¶ 20        In this case, postconviction counsel filed a Rule 651(c) certificate on January 14, 2010,
       thereby creating a presumption that the defendant received the representation required by the
       rule at this stage of proceedings. Mendoza, 402 Ill. App. 3d at 813. In this court, the
       defendant does not dispute that counsel examined the record of the proceedings at trial and
       consulted with him to ascertain his contentions of deprivation of constitutional rights, but
       contends that counsel failed to make “any of several necessary amendments” to his petition.

                                                 -5-
¶ 21        We note that postconviction counsel is not required to amend a defendant’s pro se
       postconviction petition (People v. Turner, 187 Ill. 2d 406, 412 (1999)) but, rather, is only
       required to investigate and present the defendant’s claims (People v. Pendleton, 223 Ill. 2d
       458, 475 (2006)). Although counsel may raise additional issues if he or she so chooses,
       counsel is not required to do so. Pendleton, 223 Ill. 2d at 476. Also, counsel is not required
       to advance frivolous or spurious claims. People v. Greer, 212 Ill. 2d 192, 205 (2004). In fact,
       counsel’s decision not to amend a defendant’s pro se petition has been held not to constitute
       a deprivation of adequate representation where his claim lacks a sufficient factual basis.
       People v. Johnson, 17 Ill. App. 3d 277, 279 (1974).
¶ 22        Here, the defendant filed a pro se postconviction petition alleging that his trial counsel
       was ineffective for failing to present police reports and call certain witnesses in support of
       his claim of self-defense. The record shows that, prior to trial, counsel explained Lynch
       witnesses to the defendant and informed him of “a woman we’re trying to bring in.” The
       defendant, on the record, declared, “I want to go to trial without the witness,” and insisted
       that there was “only one witness” who was “not going to press charges.” Despite the
       defendant’s attempts to derail her efforts, however, counsel persisted in attempting to gather
       and introduce Lynch evidence, informing the court on a subsequent date that she “had
       subpoenaed some material about the alleged victim in this case, Lynch material,” then later,
       participating in a Lynch hearing.
¶ 23        The record thus indicates that defense counsel attempted to introduce at least some of the
       Lynch witnesses named in the defendant’s petition where it was alleged in the defendant’s
       motion for a new trial that “other’s [sic] in the home could have testified to Mr. Herron’s
       aggressive and violent nature.” However, the trial court ultimately limited the Lynch
       evidence which counsel could present to the defendant’s testimony alone. In light of this
       limitation, we find no factual basis to support the defendant’s claim that counsel was
       ineffective for failing to introduce additional Lynch evidence, and that counsel cannot be
       charged with incompetence for deciding not to amend the defendant’s pro se petition with
       allegations that were without substance. Id.
¶ 24        The defendant nonetheless claims that counsel provided unreasonable assistance by
       failing to procure affidavits from the proposed Lynch witnesses named in his pro se petition,
       citing People v. Johnson, 154 Ill. 2d 227 (1993), and People v. Waldrop, 353 Ill. App. 3d 244
       (2004). In Johnson, the supreme court held that counsel failed to comply with Rule 651(c)
       where an affidavit he filed unequivocally established that he made no effort to obtain
       affidavits from the witnesses identified in the defendant’s pro se petition. Johnson, 154 Ill.
       2d at 241-43. Similarly, in Waldrop, the court held that counsel provided unreasonable
       assistance and failed to comply with Rule 651(c) where the record established that counsel
       mistakenly believed that he had no duty to obtain an affidavit from a witness identified in the
       defendant’s pro se petition. Waldrop, 353 Ill. App. 3d at 250.
¶ 25        In citing Johnson and Waldrop, the defendant fails to address the supreme court’s
       acknowledgment that “[i]n the ordinary case, a trial court ruling upon a motion to dismiss
       a postconviction petition which is not supported by affidavits or other documents may
       reasonably presume that postconviction counsel made a concerted effort to obtain affidavits
       in support of the postconviction claims, but was unable to do so.” Johnson, 154 Ill. 2d at 241;

                                                -6-
       Waldrop, 353 Ill. App. 3d at 250. The defendant’s failure to do so here appears to be a
       strategic oversight where counsel filed a Rule 651(c) certificate and, unlike Johnson and
       Waldrop, nothing in the record establishes or suggests that counsel did not make an effort
       to obtain affidavits in support of the defendant’s claims.
¶ 26       Notwithstanding, the defendant’s claim fails on a more fundamental level. Although Rule
       651(c) requires counsel to make those amendments to the defendant’s pro se petition which
       are necessary for an adequate presentation of his contentions (Ill. S. Ct. R. 651(c) (eff. Dec.
       1, 1984)), affidavits from the proposed Lynch witnesses in this case would have provided no
       support for the defendant’s claim that counsel was ineffective for failing to call such
       witnesses since the trial court limited the Lynch evidence counsel could present to the
       defendant’s testimony alone. The affidavits were therefore unnecessary for an adequate
       presentation of the defendant’s contention of ineffective assistance of trial counsel, and
       counsel’s failure to include them was not unreasonable. People v. Williams, 186 Ill. 2d 55,
       61-62 (1999).
¶ 27       The defendant next claims that counsel rendered unreasonable assistance because he
       failed to amend the defendant’s petition to include the oral claim of ineffective assistance of
       appellate counsel he asserted during argument on the State’s motion to dismiss. He maintains
       that counsel’s failure to do so was especially troubling because the failure to amend a petition
       to include a claim of ineffective assistance of appellate counsel is one of the few specific
       amendments that the Illinois Supreme Court has instructed that postconviction attorneys must
       make when necessary. See People v. Kluppelberg, 327 Ill. App. 3d 939, 947 (2002).
¶ 28       The State responds that counsel’s failure to amend the defendant’s petition with a claim
       of ineffective assistance of appellate counsel was not unreasonable because the claim lacked
       merit. We note that after the briefs were filed in this case, we allowed the motions of the
       defendant and the State to cite People v. Schlosser, 2012 IL App (1st) 092523, and People
       v. Profit, 2012 IL App (1st) 101307, pet. for leave to appeal pending, No. 114568 (filed July
       10, 2012), respectively, as additional authority on this issue.
¶ 29       In Schlosser, counsel was appointed to represent the defendant on his postconviction
       petition alleging that he was not proved guilty beyond a reasonable doubt and that his
       sentencing hearing was unfair. Schlosser, 2012 IL App (1st) 092523, ¶ 10. Counsel
       subsequently filed a Rule 651(c) certificate stating that he did not amend the defendant’s
       petition because it adequately presented his claims, but then, at a hearing on the State’s
       motion to dismiss, argued for the first time that appellate counsel was ineffective for failing
       to raise a sufficiency of the evidence claim on direct appeal. Id. ¶¶ 10, 19. The trial court
       found that this claim was forfeited because counsel did not amend the postconviction petition
       to include it, and dismissed the petition on the grounds of waiver. Id. ¶ 19.
¶ 30       On appeal, the defendant claimed that counsel’s failure to amend his pro se petition to
       avoid the application of waiver constituted unreasonable assistance under Rule 651(c). Id.
       This court noted that the “exact same issue” had been addressed in Turner, and that the
       supreme court held that Rule 651(c) requires counsel to amend a pro se petition to allege
       ineffective assistance of appellate counsel to avoid waiver. Id. ¶ 22 (citing Turner, 187 Ill.
       2d at 412-14). Therefore, consistent with Turner, this court found that counsel’s failure to


                                                 -7-
       amend the defendant’s petition with a claim of ineffective assistance of appellate counsel was
       unreasonable. Schlosser, 2012 IL App (1st) 092523, ¶¶ 25-26.
¶ 31        Here, as in Schlosser, counsel raised an oral claim of ineffective assistance of appellate
       counsel for the first and only time at a hearing on the State’s motion to dismiss the
       defendant’s postconviction petition. Counsel asserted that appellate counsel was ineffective
       for failing to challenge the trial court’s ruling on the admissibility of Lynch evidence and that
       this claim had merit. Unlike Schlosser, counsel’s claim in this case was not necessary to
       overcome a procedural bar to addressing the specific claims raised in the defendant’s
       petition, which were based on facts outside the record. See People v. Taylor, 237 Ill. 2d 356,
       372 (2010) (noting that rules of procedural default are relaxed where the facts pertaining to
       the postconviction claim do not appear on the face of the trial record). However, the claim
       was derived from the defendant’s allegations and presented by counsel as the only cognizable
       legal avenue by which the court could reach the crux of the defendant’s claims concerning
       the lack of Lynch evidence introduced at his trial. Thus, as in Schlosser, counsel effectively
       admitted to the court that the defendant’s “main claim” included ineffective assistance of
       appellate counsel, but failed to include that claim in the petition. Schlosser, 2012 IL App
       (1st) 092523, ¶ 28. Under these circumstances, we find that counsel did not comply with the
       duties imposed by Rule 651(c). See id. ¶ 33.
¶ 32        The State disagrees with this conclusion and argues that because counsel filed a Rule
       651(c) certificate, “it must be presumed that *** counsel determined that no amendments
       could be made to the petition which would render the defendant’s petition legally and
       factually sufficient to warrant further postconviction proceedings.” To overcome this
       presumption, the State claims, “defendant must present some evidence of record
       demonstrating that his petition was actually salvageable,” citing the recent decision of this
       court in Profit.2
¶ 33        In Profit, the trial court docketed the defendant’s pro se successive postconviction
       petition and appointed counsel to represent him, Profit, 2012 IL App (1st) 101307, ¶ 9. The
       defendant filed two pro se pleadings, which were stricken by the court. Id. ¶¶ 8-12.
       Postconviction counsel then filed a Rule 651(c) certificate and asked the court to reconsider
       the dismissal of one of the defendant’s pro se pleadings, but did not amend the petition to
       include the claims raised therein. Id. ¶ 13. The court declined to reconsider its dismissal of
       the defendant’s pleadings and granted the State’s motion to dismiss the defendant’s
       postconviction petition. Id. ¶¶ 13-14.
¶ 34       On appeal, the defendant claimed that the presumption of compliance with Rule 651(c),
       triggered by counsel’s filing of a certificate pursuant to that rule, was rebutted where counsel
       did not present the claims from his stricken pro se pleadings, regardless of the merits of those
       claims. Id. ¶¶ 19-21. This court found, to the contrary, that the question of whether the


               2
                 We note that the State, in its motion to cite additional authority, incorrectly characterizes
       the defendant’s claim of unreasonable assistance of postconviction counsel as being based on
       counsel’s failure to amend the petition with a claim that appellate counsel was ineffective for failing
       to raise a sufficiency of the evidence claim on appeal.

                                                    -8-
       defendant’s pro se allegations had merit was crucial to determining whether it was
       unreasonable for counsel to not file an amended petition. Id. ¶ 23. Accordingly, the
       conclusion that the defendant had failed to rebut the presumption that counsel complied with
       Rule 651(c) was based on an assessment of the merits of his stricken claims. Id. ¶¶ 24-31.
¶ 35        We find the State’s reliance on Profit to be misplaced. First, we note that Profit did not
       address the precise question at issue here: whether counsel provides unreasonable assistance
       when he disavows the defendant’s postconviction petition and orally asserts a new claim of
       professed merit at the hearing on the State’s motion to dismiss, having failed to include it in
       the defendant’s petition. Second, we note that, in Profit, this court addressed the merits of
       the claims raised in the defendant’s stricken pleadings on a record that was silent as to
       whether counsel believed those claims had merit. Here, however, counsel specifically
       represented that his oral claim of ineffective assistance of appellate counsel had merit,
       despite a Rule 651(c) certification (filed by previous postconviction counsel) that the
       defendant’s petition “adequately present[ed] his issues.” We thus find Profit factually
       distinguishable from the case at bar.
¶ 36        In sum, we conclude that postconviction counsel rendered unreasonable assistance by
       failing to amend the defendant’s pro se postconviction petition to include the claim of
       ineffective assistance of appellate counsel raised at the hearing on the State’s motion to
       dismiss. We therefore reverse and remand with directions that the trial court conduct a
       second-stage evaluation after allowing the defendant leave to amend his postconviction
       petition with a claim of ineffective assistance of appellate counsel. See Schlosser, 2012 IL
       App (1st) 092523, ¶ 35 (citing Turner, 187 Ill. 2d at 417).

¶ 37      Reversed and remanded with instructions.




                                                -9-
