                                         2016 IL App (3d) 140094

                                Opinion filed March 16, 2016
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2016

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 14th Judicial Circuit,
                                                      )       Rock Island County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-14-0094
            v.                                        )       Circuit No. 06-CF-844
                                                      )
     THOMAS E. JONES,                                 )       Honorable
                                                      )       Walter D. Braud,
            Defendant-Appellant.                      )       Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
           Justice Lytton concurred in the judgment and opinion.
           Justice Carter dissented, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Following an unsuccessful direct appeal, defendant, Thomas E. Jones, filed a pro se

     petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). After

     90 days passed, the petition advanced to the second stage and the trial court appointed counsel to

     represent defendant. Appointed counsel amended the petition arguing that defendant's appellate

     counsel was ineffective for failing to raise arguments on direct appeal concerning evidence

     presented at trial of the victim's autopsy photographs and a redacted video recording of

     defendant's statements to police.
¶2            Following a hearing on the State's motion to dismiss, the trial court dismissed the petition

     at the second stage. Defendant appeals, arguing appointed counsel failed to provide reasonable

     assistance of postconviction counsel. Specifically, defendant argues that appointed counsel

     failed to satisfy his duty under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) to make

     amendments to his pro se petition necessary to adequately present the defendant's contentions.

     We reverse the order dismissing defendant's petition and remand the matter for further second-

     stage proceedings and the appointment of new postconviction counsel to amend the petition as

     necessary.

¶3                                                   FACTS

¶4            Defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West 2006)) and

     aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 2006)) based on the death of his two-

     month-old son, K.C. Both counts alleged that defendant "violently shook" K.C. causing his

     death.

¶5            Before trial, the State filed a motion in limine notifying defendant of its intent to present a

     redacted video recording of defendant's statements to police. In the redacted video recording,

     defendant demonstrated how he handled K.C. Defense counsel filed a motion in limine seeking

     to bar the State from introducing the redacted version of the video recording.

¶6            Defendant's motion argued:

                     "[defense counsel] has been made aware that the State seeks the introduction of

                     video and audio recordings of the Defendant's statements which would be edited

                     to highlight certain respects of his interrogation or questioning by law

                     enforcement representatives. It is improper to introduce into evidence audio

                     recordings that have been changed, augmented, or deleted.


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¶7          In arguing the motions before the trial court, the following colloquy occurred:

                            "[Defense Counsel]: Judge, these demonstrations are—I have seen them. I

                    have been through the evidence—are all in response to specific questions and a

                    chain of questions leading up to the demonstrations ***. That all needs to be

                    played in context so the jury has that context in which to place his statements.

                    Just having blurps without context, Judge, is improper.

                            THE COURT: What context are you talking about?

                            [Defense Counsel]: The questioning. The series of questioning, what

                    leads up to this. Cleary & Graham in their handbook of Illinois Evidence, Judge,

                    state that the federal courts established the elements of the foundation for these

                    videotapes and audiotapes and Item 4 of what they enumerate, what needs to be

                    made clear here, is that changes, additions, or deletions have not been made to the

                    recording. That's one of the requirements. So snipping it, cutting it, putting it in

                    difference places, cutting out pieces, that would be altering this evidence and it

                    should be played in its entirety."

¶8          The State responded that it did not have an objection to playing the video in its entirety

     but noted that the unedited version of the video recording contained around eight hours of

     questioning. The trial court reserved ruling on the issue.

¶9          After jury selection, but prior to opening statements, the trial court resumed discussion on

     the issue of the redacted video recording. Defense counsel informed the trial court that he still

     objected to its introduction because he believed that "redacting, editing, or otherwise altering a

     video or audio recording is improper; that if the State seeks to introduce those—what they deem




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       are admission or the demonstrative portions, that the context of the entire interview" should be

       shown to the jury.

¶ 10           The trial court rejected defense counsel's argument and noted that "the State is entitled to

       present its case in the way that they wish to do it as long as it doesn't violate the rules of

       evidence, and there's no law that indicates that *** the State has to play the whole statement."

       The trial court then instructed defense counsel that he could introduce defendant's statements

       omitted from the redacted video recording, except defendant's exculpatory statements, "under the

       Completion Doctrine if it's applicable."

¶ 11           During the State's case-in-chief, the prosecution presented the redacted video recording of

       defendant's statements to police over defense counsel's renewed objection. Defense counsel did

       not present any additional video footage of defendant's statements during its case-in-chief.

¶ 12           While the jury began its deliberation, the trial court and parties went through the trial

       exhibits and discussed which exhibits should be given to the jury to review. After discussing the

       exhibits, the trial court determined, over defense counsel's objection, that it would allow the

       photographs of the victim's autopsy to go back to the jury. As to the redacted videotaped

       statement, the trial court determined that it would not allow the redacted video recording to go

       into the jury room while they deliberated.

¶ 13           Ultimately, the jury found defendant not guilty of first degree murder (720 ILCS 5/9-

       1(a)(2) (West 2006)) but guilty of aggravated battery of a child (720 ILCS 5/12-4.3(a) (West

       2006)). Defense counsel filed a motion for new trial, arguing the trial court erred by allowing

       "redacted, edited and altered video evidence of the defendant's interrogation which highlighted

       specific statements without the context of the entire line of questioning and without showing the




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       lines of questioning that led to the highlighted portions that were admitted into evidence over

       defense objection."

¶ 14          At the hearing on the motion, the trial court acknowledged its prior ruling on the parties'

       motions in limine and that it had informed defense counsel that he could have sought to introduce

       other portions of the recorded statements "through completion" but did not. After denying the

       motion, the trial court sentenced defendant to 25 years' imprisonment.

¶ 15          On direct appeal, appellate counsel only argued that the trial court imposed an excessive

       sentence. This court affirmed defendant's sentence. People v. Jones, No. 3-08-4011 (2009)

       (unpublished order under Supreme Court Rule 23).

¶ 16          Subsequently, defendant filed a pro se petition for postconviction relief. Specifically,

       defendant argued that the trial court's evidentiary ruling (allowing the State to introduce the

       redacted version of his videotaped statements) denied him a fair trial because it: "(a) permitted

       the State to introduce pieces of the DVD interviews as the Prosecution saw fit; and (b) because it

       restricted the defense from playing the entire tape." Defendant argued that this evidentiary ruling

       denied him a fair trial because presenting the video recording without the line of questioning

       leading to the demonstrations misled the jury. Defendant also argued that the trial court denied

       him a fair trial by allowing the State to introduce the victim's autopsy photographs.

¶ 17          After 90 days passed, the trial court docketed the petition for second-stage proceedings

       and appointed counsel to represent defendant. Appointed counsel filed a certificate under Illinois

       Supreme Court Rule 651(c) (eff. Feb. 6, 2013) along with an amended postconviction petition.

       The amended petition alleged that defendant's appellate counsel was ineffective for failing to

       challenge the trial court's evidentiary rulings allowing: (1) the victim's autopsy photographs into

       evidence and providing those photographs to the jury during deliberations; and (2) "redacted


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       versions of defendant's statements to go to the jury before deliberations." The amended petition

       did not mention the unredacted version of defendant's videotaped statements or explain its

       absence from the petition.

¶ 18          The State responded to the amended petition arguing the photographs were properly

       introduced at trial to demonstrate and corroborate expert witness testimony regarding shaken

       baby syndrome. As to the redacted videotaped statements, the State argued that the statements

       were redacted because they contained material prejudicial to defendant and that defendant did

       "not allege what statements that were redacted would have helped [defendant] at trial."

¶ 19          At the second-stage hearing, appointed counsel explained that there were no claims of

       ineffective assistance of trial counsel, but all the claims were based on ineffective assistance of

       appellate counsel. In regard to the autopsy photographs, appointed counsel argued that the trial

       court erred in allowing them into evidence and providing them to the jury during deliberations

       because they were more prejudicial than probative. As to the redacted videotaped interview,

       appointed counsel argued, "the trial court had improperly allowed redacted versions of

       defendant's statement[s] to go back to the jury for deliberations" because those "statements were

       more prejudicial than probative." Appointed counsel concluded his argument by noting that

       appellate counsel was ineffective because the issues were preserved by trial counsel and could

       have been raised on direct appeal.

¶ 20          The State responded by questioning appointed counsel's ability to argue that the

       photographs and redacted videotaped statements were prejudicial when appointed counsel had

       not seen them. The State further noted that it could not be determined whether the redacted

       version of the videotaped statements was prejudicial when appointed counsel did not explain




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       how the videotape was prejudicial or refer to any statements redacted from the video recording

       that should have been left in the redacted statements.

¶ 21          Appointed counsel responded that the autopsy photographs were not attached to the

       amended petition because they were entered into evidence at trial and included in the trial record.

       Appointed counsel did not respond to the State's argument regarding the redacted video

       recording.

¶ 22          Following a brief recess, the trial court dismissed the amended petition. In its ruling, the

       trial court concluded that appellate counsel was not ineffective for failing to raise an issue

       regarding the photographs on direct appeal and dismissed the postconviction petition. At first,

       the trial court did not mention defendant's claim regarding the redacted videotaped statements.

       However, at the end of the hearing, defendant asked the trial court about the admission of his

       redacted videotaped statements. The trial court responded that it did not discuss the issue in

       detail because defendant's appointed counsel did not spend significant time on the issue. Then,

       the trial court rejected the claim by noting, "I don't know what the redaction is. I don't know

       what the redaction was for."

¶ 23                                               ANALYSIS

¶ 24          On appeal, defendant argues that appointed counsel failed to provide reasonable

       assistance of postconviction counsel. Specifically, defendant argues that appointed counsel

       failed to make amendments to his pro se petition that were necessary for an adequate

       presentation of his postconviction claims regarding: (1) the redacted videotape of defendant's

       statements to the police; and (2) the victim's autopsy photographs. Upon review, we hold

       appointed counsel failed to provide reasonable assistance of postconviction counsel when




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       presenting defendant's redacted videotape claim. We do not reach defendant's argument

       regarding the victim's autopsy photographs.

¶ 25          A defendant is only entitled to a reasonable level of assistance from appointed counsel.

       People v. Perkins, 229 Ill. 2d 34, 42 (2007). Illinois Supreme Court Rule 651(c) (eff. Feb. 6,

       2013) requires postconviction counsel to: (1) consult with the petitioner to ascertain his

       contentions of constitutional deprivation; (2) examine the record of the proceeding of the original

       trial; and (3) make any amendments to the pro se petition necessary to adequately present the

       petitioner's constitutional contentions.

¶ 26          Here, defendant acknowledges that appointed counsel is presumed to have provided

       defendant reasonable assistance of counsel because he filed a Rule 651(c) certificate. People v.

       Mendoza, 402 Ill. App. 3d 808, 813 (2010). However, he argues the record rebuts this

       presumption with respect to appointed counsel's third duty to make any amendments to the pro

       se petition that are necessary to adequately present defendant's contentions. People v. Marshall,

       375 Ill. App. 3d 670, 680 (2007).

¶ 27          Defendant first argues that appointed counsel provided unreasonable assistance of

       postconviction counsel because he failed to include a claim in the amended petition that trial

       counsel provided ineffective assistance of counsel. According to defendant, appointed counsel

       should have argued that trial counsel was ineffective by not introducing or making an offer of

       proof regarding the omitted portions of the redacted videotaped statements. The State responds

       by arguing that Rule 651(c) only requires appointed counsel to adequately present the claims

       actually raised in defendant's pro se petition (i.e., defendant's claim that the trial court denied

       him a fair trial in allowing the State to present the redacted videotape). Thus, the State contends

       that appointed counsel was not obligated to raise an ineffective assistance of trial counsel claim


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       because defendant did not include it in his pro se petition. Defendant replies that including this

       allegation did not require appointed counsel to present a new claim. Rather, the amendment was

       necessary to adequately present defendant's pro se allegation that he was denied a fair trial when

       the sole presentation of the videotape at trial was in redacted form.

¶ 28          At the outset, we acknowledge that appointed counsel is not required to amend

       defendant's pro se postconviction petition if the pro se claims are adequately presented. People

       v. Turner, 187 Ill. 2d 406, 412 (1999). Also, appointed "counsel is only required to investigate

       and properly present the petitioner's claims." (Emphasis in original.) People v. Davis, 156 Ill.

       2d 149, 164 (1993). However, the purpose of Rule 651(c) "is to ensure that counsel shapes the

       petitioner's claims into proper legal form and presents those claims to the court." Perkins, 229

       Ill. 2d at 44. To that end, Rule 651(c) requires a showing that appointed counsel "took the

       necessary steps to secure adequate representation of petitioner's claims." People v. Szabo, 144

       Ill. 2d 525, 532 (1991). Therefore, our analysis is guided by "the conviction that where

       postconviction counsel does not adequately complete the duties mandated by the rule, the limited

       right to counsel conferred by [statute] cannot be fully realized." People v. Suarez, 224 Ill. 2d 37,

       51 (2007).

¶ 29          The substance of defendant's pro se videotape claim was that he wished to have the entire

       videotape statement presented to the jury. Specifically, defendant argued in his pro se petition

       that the trial court's evidentiary ruling allowing the State to introduce the redacted version of his

       videotaped statements denied him a fair trial because it: "(a) permitted the State to introduce

       pieces of the DVD interviews as the Prosecution saw fit; and (b) because it restricted the defense

       from playing the entire tape." Defendant then explained that omitting the statements (the line of

       questioning leading up to defendant's answers, as well as defendant's purported exculpatory


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       statements) from the redacted videotape misled the jury. Viewing these pro se allegations in

       conjunction with the facts that: (1) trial counsel argued extensively at trial that the omitted

       statements were necessary to defendant's defense; and (2) trial counsel then failed to present any

       additional video footage, including defendant's purported exculpatory statements; we find

       defendant's pro se allegations are sufficient to alert appointed counsel that defendant's contention

       encompassed not only a challenge to the trial court's evidentiary ruling, but also a claim that trial

       counsel provided ineffective assistance of counsel.

¶ 30          In coming to this conclusion, we note that this is not a case where appointed counsel

       would have had to comb through the entire record to discern this claim. See People v. Rials, 345

       Ill. App. 3d 636, 641 (2003) (" '[P]ostconviction counsel is not required to comb the record for

       issues not raised in the defendant's pro se postconviction petition.' " (quoting People v. Helton,

       321 Ill. App. 3d 420, 424-25 (2001)). Defendant's pro se petition identified the specific evidence

       (defendant's videotaped statements to police) and explicitly referenced the facts at issue (that the

       State presented the videotape without showing the entire line of questioning or including

       defendant's purported exculpatory statements). Defendant also included citations to the record to

       support the claim. We also emphasize again that the record clearly reveals that trial counsel

       argued extensively that the omitted statements were necessary to defendant's defense. Trial

       counsel then simply failed to present them when afforded the opportunity.

¶ 31          In addition, we hold that it was not only necessary for appointed counsel to raise the

       claim of ineffective assistance of trial counsel but also for appointed counsel to either allege facts

       regarding the content of those statements omitted from the redacted videotape or attach

       evidentiary support to the petition. To adequately present defendant's allegation, appointed

       counsel merely needed to attach an affidavit from defendant regarding the substance of those


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       statements or, preferably, attach the entire videotaped statement. Appointed counsel, however,

       failed to allege any facts regarding the redacted videotape or attach any evidentiary support to

       the amended petition. The consequence of appointed counsel's failure is best illustrated by the

       trial court's statement when dismissing the amended petition: "I don't know what the redaction is.

       I don't know what the redaction was for." When claims in the petition are "not supported by

       affidavits, records or other evidence, the trial court [has] no choice but to dismiss the post-

       conviction petition without an evidentiary hearing." People v. Johnson, 154 Ill. 2d 227, 245

       (1993). Accordingly, we find the record rebuts the presumption that appointed counsel provided

       defendant with reasonable assistance of postconviction counsel.

¶ 32          Although not necessary to our disposition, we would be remiss if we did not call attention

       to the fact that appointed counsel not only failed to properly amend defendant's claim, but he also

       failed to tender an accurate factual summary at the second-stage hearing. Specifically, appointed

       counsel argued that it was improper for the trial court to allow the redacted version of the

       statements to go to the jury while it deliberated. Yet, a brief review of the record establishes that

       the trial court did not allow the redacted version of defendant's statements to go back to the jury.

¶ 33          Viewing the above facts in totality, we hold that this matter must be remanded in order

       for appointed counsel to adequately complete the duties mandated by Rule 651(c). See, e.g.,

       Suarez, 224 Ill. 2d 37; Turner, 187 Ill. 2d 406; Johnson, 154 Ill. 2d 227; People v. Brown, 52 Ill.

       2d 227 (1972); People v. Jones, 43 Ill. 2d 160 (1969). "[R]emand is required where

       postconviction counsel failed to fulfill the duties of consultation, examining the record, and

       amendment of the pro se petition, regardless of whether the claims raised in the petition had

       merit." (Emphasis added.) Suarez, 224 Ill. 2d at 47.




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¶ 34          In light of our finding that appointed counsel failed to satisfy the requirements of Rule

       651(c) in presenting defendant's redacted videotaped statement claim, we do not reach

       defendant's alternative Rule 651(c) argument concerning the adequacy of appointed counsel's

       amendment to the victim's autopsy photographs claim. However, because we are remanding for

       new second-stage proceedings and for the inclusion of evidence of the entire videotaped

       statements, we also order appointed counsel to attach the victim's autopsy photographs to the

       newly amended petition.

¶ 35                                             CONCLUSION

¶ 36          The judgment of the circuit court of Rock Island County dismissing defendant's amended

       postconviction petition is reversed and the matter is remanded for the appointment of new

       counsel to amend the petition as directed. See People v. Shortridge, 2012 IL App (4th) 100663,

       ¶ 16; People v. Nitz, 2011 IL App (2d) 100031, ¶ 19.

¶ 37          Reversed and remanded with directions.

¶ 38          JUSTICE CARTER, dissenting.

¶ 39          The majority reverses the dismissal of defendant's postconviction petition and remands

       the matter for new second-stage proceedings. I dissent on the grounds that defendant has failed

       to show that the record rebuts the presumption that appointed postconviction counsel provided

       him with reasonable assistance.

¶ 40          As the majority correctly acknowledges, appointed counsel in this case is presumed to

       have provided the requisite level of assistance because he filed a Rule 651(c) certificate. Supra

       ¶ 26. The majority then goes on to find that the record rebuts the presumption that appointed

       counsel satisfied the requirement of Rule 651(c) that appointed counsel make any amendments to




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       the pro se petition necessary to adequately present defendant's constitutional contentions

       regarding the redacted videotaped statements. Supra ¶ 30.

¶ 41          Here, defendant's pro se petition raised an issue related to the redacted video, but he

       argued the trial court denied him a fair trial when it allowed the State to present the redacted

       version of defendant's videotaped statements. Based on defendant's pro se allegation, Rule

       651(c) only required appointed counsel to amend defendant's pro se claim regarding the trial

       court's evidentiary ruling. Appointed counsel fulfilled his obligation by amending the petition to

       raise the same underlying claim but, to avoid forfeiture, argued appellate counsel was ineffective

       for failing to challenge this evidentiary ruling on direct appeal. See Turner, 187 Ill. 2d at 413.

¶ 42          By contrast, the majority finds that defendant's pro se allegation is sufficient to alert

       counsel to raise the novel claim of ineffective assistance of trial counsel. Supra ¶ 30.

       Specifically, the majority finds appointed counsel should have included a claim that trial counsel

       was ineffective failing to make an offer of proof or introducing the statements omitted from the

       redacted videotaped statement. The majority's position cannot overcome the fact that defendant

       failed to make this argument in his pro se petition. Rule 651(c) did not obligate appointed

       counsel to raise this issue when he amended defendant's petition because such a claim is based

       on a wholly independent legal theory and facts. See Davis, 156 Ill. 2d at 164 ("Post-conviction

       counsel is only required to investigate and properly present the petitioner's claims." (Emphasis in

       original.)). Moreover, defendant conceded the majority's proposed issue when defendant argued

       in his pro se petition that trial counsel "rightfully decline[d]" moving to introduce the statements

       omitted from the redacted video even though he had the opportunity to do so during the defense's

       case-in-chief. Accordingly, I would find defendant has failed to overcome the presumption of

       Rule 651(c) with regard to the redacted videotaped statements.



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¶ 43          In light of the majority's finding with regard to the videotaped statements, the majority

       does not reach the issue of whether appointed counsel provided reasonable assistance.

       Defendant argues appointed counsel was unreasonable when he failed to attach the photographs

       to the amended petition. Because I disagree with the majority's videotaped statement finding, I

       will address defendant's argument regarding the victim's autopsy photographs.

¶ 44          Upon review, I would find that defendant failed to overcome the presumption created by

       appointed counsel's Rule 651(c) certificate. Notably, a defendant need not attach evidence

       supporting his postconviction claim when the claim can be determined based on the record.

       People v. Harmon, 2013 IL App (2d) 120439, ¶ 30 (citing People v. Johnson, 183 Ill. 2d 176,

       191 (1998)). Here, the contested photographs were entered into evidence at trial and included in

       the trial record. Thus, appointed counsel was under no obligation to attach the photographs to

       the amended petition.

¶ 45          Accordingly, I would affirm the trial court's decision dismissing defendant's

       postconviction petition.




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