                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Kirkpatrick, 2012 IL App (2d) 100898




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      RYAN C. KIRKPATRICK, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-10-0898


Filed                        April 17, 2012


Held                         The dismissal of defendant’s postconviction petition was affirmed where
(Note: This syllabus         the alleged deficiencies in the filings of defendant’s postconviction
constitutes no part of       counsel were harmless in light of the substance of counsel’s certificate
the opinion of the court     and his representations to the trial court, no per se conflict of interest
but has been prepared        existed as a result of the trial court’s appointment of defendant’s trial
by the Reporter of           counsel to represent him on his postconviction petition, the record did not
Decisions for the            support defendant’s contention that he was denied the reasonable
convenience of the           assistance of postconviction counsel, and postconviction counsel’s failure
reader.)
                             to provide a properly notarized supporting affidavit was rendered moot
                             when the State moved to dismiss the petition on the merits and did not
                             challenge the alleged procedural defects, a hearing was held, and the trial
                             court ruled on the merits.


Decision Under               Appeal from the Circuit Court of McHenry County, No. 06-CF-163; the
Review                       Hon. Rosemary Collins, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Alan D. Goldberg and Jennifer L. Bontrager, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M. Bauer
                           and Edward R. Psenicka, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE HUTCHINSON delivered the judgment of the court, with
                           opinion.
                           Justices McLaren and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant, Ryan C. Kirkpatrick, appeals the trial court’s second-stage dismissal of his
        petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/art. 122 (West
        2008)). Defendant contends, inter alia, that he received the unreasonable assistance of
        postconviction counsel. The State counters that (1) we lack jurisdiction or (2) we should
        dismiss this appeal based on defects in the pleading; or (3) we should affirm because
        defendant received the reasonable assistance of counsel. We affirm.
¶2          In 2006, defendant was indicted on two counts of threatening a public official (720 ILCS
        5/12-9(a)(1)(i) (West 2004)). Following a jury trial, defendant was convicted, and he was
        sentenced to 14 years’ imprisonment. Defendant’s conviction was affirmed on direct appeal.
        People v. Kirkpatrick, No. 2-07-0323 (2009) (unpublished order under Supreme Court Rule
        23).
¶3          On June 15, 2009, defendant filed a pro se postconviction petition alleging multiple
        claims, including a claim that his trial counsel was unable to provide effective assistance
        because the trial court and the prison failed to allow communication with counsel and to
        allow access to discovery materials. Defendant attached various documents to the petition.
        On January 26, 2010, defendant filed a motion to appoint a special public defender due to
        a conflict of interest. On March 5, 2010, the trial court conducted a hearing. The trial court
        informed defendant that his petition had proceeded to the second stage and inquired “on the
        record” what his “position was with respect to [his] representation.” Defendant responded
        that he wanted his trial counsel to represent him. The trial court asked, “So you’re not
        alleging any conflict with him at all,” and defendant replied, “No.” The trial court granted
        defendant’s request.
¶4          On August 13, 2010, counsel filed an amended petition for postconviction relief. Counsel
        alleged that (1) defendant was prejudiced by the length of time that elapsed between the time
        the act occurred and the time of the filing of the indictment; (2) the prosecutor failed to

                                                 -2-
     disclose his submission for a judgeship, which resulted in a conflict of interest involved in
     the prosecution of this case; (3) a prosecutor erred on the record when he stated that various
     other crimes could not be charged as the statute of limitations had run on the crimes; and (4)
     he was given insufficient access to his discovery documents to assist in his defense. Counsel
     also filed a “Certificate of Counsel Pursuant to Illinois Supreme Court Rule 604(d),” in
     which he stated that he attempted to consult with defendant, reviewed the court file and
     record of proceedings, and made any necessary amendments.
¶5        On August 24, 2010, the State filed a motion to dismiss, and on August 25, 2010, it filed
     an amended dismissal motion. The State argued that every issue defendant raised could have
     been raised on direct appeal, and therefore the issues were waived. The State also argued that
     dismissal would be proper because the petition failed to “clearly set forth the respects” in
     which his constitutional rights were violated, as required by section 122-2 of the Act (725
     ILCS 5/122-2 (West 2008)). The State further requested dismissal based on defendant’s
     failure to attach to his petition affidavits, records, or other evidence supporting his
     allegations, as required by section 122-2 of the Act.
¶6        On August 31, 2010, the trial court conducted a hearing on defendant’s amended
     postconviction petition and the State’s dismissal motion. At the hearing, postconviction
     counsel informed the trial court that he had spoken with defendant a couple of times and had
     written communication with him. Counsel further informed the trial court that he had
     reviewed defendant’s postconviction petition and discussed with defendant the petition and
     changes to the petition. Following argument of the parties, the trial court granted the State’s
     motion to dismiss. In doing so, the trial court found that, despite the lapse of time between
     the event and the indictment, the State did not violate the statute of limitations and the lapse
     of time did not constitute a violation of defendant’s rights. With respect to the second issue,
     the trial court found it waived because defendant could have raised the issue on direct appeal.
     The trial court found that the third issue had no constitutional merit. With respect to the
     fourth issue, the trial court indicated that it followed the supreme court’s rules concerning
     discovery. In granting the State’s motion to dismiss, the trial court concluded that defendant
     failed to raise any issue that amounted to a constitutional violation of his rights and that he
     had waived many of the issues, which could have been raised on direct appeal. Defendant
     filed a timely notice of appeal.
¶7        Defendant argues that his counsel provided unreasonable assistance by failing to file a
     proper certificate under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) and by failing
     to make necessary amendments to the petition or provide supporting affidavits. The State
     first argues that we lack jurisdiction because the petition was not verified by a notarized
     affidavit. Secondly and alternatively, the State asks that we affirm the dismissal and find that
     counsel did not provide unreasonable assistance.
¶8        Initially, we reject the State’s claim that we lack jurisdiction over the appeal because the
     postconviction petition was not verified by a notarized affidavit. See People v. Nitz, 2011 IL
     App (2d) 100031, ¶ 12 (determining that jurisdiction was not based upon a fully executed
     affidavit).
¶9        Turning to the merits, defendant argues that his counsel provided unreasonable assistance


                                               -3-
       by failing to file a proper certificate under Rule 651(c) and by failing to make necessary
       amendments to the petition or provide supporting affidavits. The State asks that we affirm
       the dismissal and find that counsel did not provide unreasonable assistance.
¶ 10        The Act provides a method by which persons under criminal sentence can assert that their
       convictions were the result of a substantial denial of their rights under the United States or
       the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2008); People v. Ligon, 239
       Ill. 2d 94, 103 (2010) (citing People v. Petrenko, 237 Ill. 2d 490, 495-96 (2010)). A
       postconviction proceeding is a collateral attack on the prior conviction or sentence that does
       not relitigate a defendant’s innocence or guilt. Ligon, 239 Ill. 2d at 103 (citing People v.
       Evans, 186 Ill. 2d 83, 89 (1999)).
¶ 11        Proceedings under the Act are commenced by the filing of a petition in the circuit court
       in which the original proceeding took place. People v. Hansen, 2011 IL App (2d) 081226,
       ¶ 18 (citing People v. Jones, 211 Ill. 2d 140, 144 (2004)). A postconviction proceeding that
       does not involve the death penalty consists of three stages. At the first stage, the defendant
       files a petition and the trial court has 90 days in which it may review the petition without the
       input of any party and summarily dismiss it if the court finds it frivolous or patently without
       merit. 725 ILCS 5/122-2.1(a)(2) (West 2008); Hansen, 2011 IL App (2d) 081226, ¶ 18
       (citing Jones, 211 Ill. 2d at 144). To survive summary dismissal, the petition must present
       only the gist of a constitutional claim. People v. Hodges, 234 Ill. 2d 1, 9 (2009); Hansen,
       2011 IL App (2d) 081226, ¶ 18 (citing Jones, 211 Ill. 2d at 144).
¶ 12        At the second stage, counsel may be appointed for the defendant, if the defendant is
       indigent. 725 ILCS 5/122-4 (West 2008); People v. Pendleton, 223 Ill. 2d 458, 472 (2006).
       After an appointment, Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) requires
       counsel: (1) to consult with the defendant by mail or in person; (2) to examine the record of
       the challenged proceedings; and (3) to make any amendments that are “necessary” to the
       petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42 (2007).
¶ 13        The Act further provides that, after counsel has made any necessary amendments to the
       petition, the State may move to dismiss it. Pendleton, 223 Ill. 2d at 472 (discussing 725 ILCS
       5/122-5 (West 2000)); see also Perkins, 229 Ill. 2d at 43. If the State moves to dismiss, the
       trial court may hold a dismissal hearing, which is still part of the second stage. People v.
       Coleman, 183 Ill. 2d 366, 380-81 (1998). A trial court is foreclosed “from engaging in any
       fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this
       point in the proceeding.” Coleman, 183 Ill. 2d at 380-81. A court reviewing a dismissal of
       a postconviction petition without an evidentiary hearing will do so de novo. People v.
       Edwards, 195 Ill. 2d 142, 156 (2001) (citing Coleman, 183 Ill. 2d at 389). In the present case,
       the trial court dismissed defendant’s petition at the second stage; therefore, our review is de
       novo.
¶ 14        In the present case, the record does not establish that postconviction counsel was
       unfamiliar with the Act’s requirements. Counsel is presumed to know the law. See People
       v. Holman, 164 Ill. 2d 356, 369 (1995) (courts recognize a strong presumption that attorneys
       are competent). Although defense counsel filed a certificate with the caption that it was
       pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 13, 2005), the contents of the


                                                  -4-
       certificate were also consistent with the requirements of Rule 651(c). See People v. Williams,
       186 Ill. 2d 55, 59 n.1 (1999) (stating that the failure to file a proper affidavit certifying
       compliance with Rule 651(c) is harmless if the record demonstrates that counsel adequately
       fulfilled his or her duties, as the filing rule is not a rule of strict compliance). Despite
       counsel’s failure to state that he satisfied his duties under the proper rule, the remaining
       substantive contents reflected that he attempted to consult with defendant, reviewed the court
       file and record of proceedings, and made any necessary amendments. Furthermore, at the
       hearing on the State’s motion to dismiss, counsel informed the trial court that he had spoken
       with defendant a couple of times and had written communication with him. Counsel further
       informed the trial court that he had reviewed defendant’s postconviction petition and
       discussed with defendant the petition and changes to the petition. We conclude that any
       deficiencies in postconviction counsel’s filing were harmless in light of the substance of
       counsel’s certificate and counsel’s representations to the trial court.
¶ 15        Defendant next contends that he did not knowingly and intelligently waive the conflict
       created when the trial court appointed the same attorney who represented him at trial to also
       represent him on his postconviction petition. Defendant argues that the trial court failed to
       explain the conflict, its significance, and how it could affect postconviction counsel’s
       representation of him.
¶ 16        “A criminal defendant’s sixth amendment right to effective assistance of counsel includes
       the right to conflict-free representation.” People v. Taylor, 237 Ill. 2d 356, 374 (2010).
       “Unless a defendant waives his or her right to conflict-free representation, a per se conflict
       of interest is grounds for automatic reversal.” Id. at 375. However, a per se conflict does not
       exist merely because a defendant questions his attorney’s competence during posttrial
       proceedings. People v. Perkins, 408 Ill. App. 3d 752, 762 (2011).
¶ 17        In the present case, we review the underlying allegations of incompetence to determine
       whether an actual conflict of interest exists. See People v. Davis, 151 Ill. App. 3d 435, 443
       (1986). Defendant alleged that his trial counsel was unable to provide effective assistance
       because the trial court and the prison failed to allow communication with counsel and to
       allow access to discovery materials. Defendant does not appear to take issue with his trial
       counsel’s competence but, rather, seems to express frustration with the court and the prison
       system. Although defendant alleged in his pro se postconviction petition that he was denied
       a fair trial and questioned counsel’s effectiveness, he advanced no substantive allegations in
       support of the claim. See People v. Williams, 139 Ill. 2d 1, 12 (1990) (stating that bare
       allegations of a conflict are not enough). To the extent there was any issue regarding
       defendant’s desire to advance a claim regarding the effectiveness of his trial counsel in his
       amended postconviction petition, the trial court sufficiently inquired as to defendant’s wishes
       for representation. We conclude that no per se conflict existed when defendant’s trial counsel
       represented him during the postconviction proceedings.
¶ 18        Defendant’s next issue concerns the sufficiency of the amended postconviction petition.
       Defendant argues that postconviction counsel failed to provide a reasonable level of
       assistance because counsel failed to amend the postconviction petition as necessary and
       failed to attach supporting affidavits. Defendant asserts that counsel largely copied his pro
       se claims, failed to cite relevant case law, failed to include legal arguments, and attached no

                                                -5-
       evidence supporting the claims.
¶ 19       To proceed beyond the second stage of proceedings under the Act, a defendant must
       make a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d at 473. Only
       upon a substantial showing of a constitutional violation is a defendant entitled to a third-stage
       evidentiary hearing. See People v. Spreitzer, 143 Ill. 2d 210, 218 (1991) (a defendant is not
       entitled to an evidentiary hearing unless the allegations in his postconviction petition,
       supported by the trial record and the accompanying affidavits, make a substantial showing
       that his constitutional rights were violated).
¶ 20       Our supreme court has repeatedly held that postconviction counsel must perform specific
       duties in his or her representation as provided by Rule 651(c). People v. Greer, 212 Ill. 2d
       192, 204-05 (2004). This rule requires that counsel meet with defendant to ascertain
       contentions of error and amend, if necessary, the pro se petition so as to adequately present
       those issues. Though these requirements do not obligate counsel to advance frivolous or
       spurious claims (id. at 205), a defendant is entitled to a “ ‘reasonable’ ” level of assistance
       of postconviction counsel (Perkins, 229 Ill. 2d at 42 (quoting Pendleton, 223 Ill. 2d at 472)).
¶ 21       Defendant’s argument that postconviction counsel failed to provide a reasonable level
       of assistance is unavailing. Defendant primarily relies on People v. Waldrop, 353 Ill. App.
       3d 244 (2004). In Waldrop, the defendant asserted that his postconviction counsel was
       unreasonable for failing to contact an eyewitness. Id. at 250. In his pro se petition, the
       defendant attached a report from a police department indicating that an officer spoke with
       a witness but the witness, despite witnessing the crime, did not want to get involved. Id. The
       allegation was realleged nearly verbatim in the defendant’s amended petition, but
       postconviction counsel did not attach a supporting affidavit explaining the significance of
       the witness’s testimony or why the supporting documentation was absent. Id. During
       argument on the State’s motion to dismiss, postconviction counsel stated that he did not
       think evidentiary support was necessary for the defendant’s allegation and contended that the
       defendant’s verification was sufficient evidentiary support to make a substantial showing of
       a constitutional violation. Id. The reviewing court noted that, when ruling on a motion to
       dismiss a petition not supported by an affidavit, a trial court may reasonably presume that
       postconviction counsel made a concerted effort to obtain affidavits in support of the claims
       despite being unable to do so. The reviewing court further stated:
           “[I]n this case, that presumption is flatly contradicted by the record. Postconviction
           counsel mistakenly believed that he did not have a duty to seek an affidavit from the
           witness specifically identified in [the] defendant’s pro se petition.” Id.
       As a result, the reviewing court concluded that postconviction counsel’s representation fell
       below a reasonable level of assistance, in violation of Rule 651(c). Id. at 250-51. The
       reviewing court concluded that, “[a]t a minimum, [postconviction] counsel was obligated to
       obtain evidentiary support for claims raised in the pro se petition.” Id. at 251.
¶ 22       We find Waldrop distinguishable from the current matter and, therefore, unpersuasive.
       In Waldrop, the presumption that counsel made a concerted effort to obtain affidavits and
       other supporting documentation was clearly and unequivocally refuted by postconviction
       counsel’s representation to the trial court that he did not believe evidentiary support was


                                                 -6-
       necessary. Id. at 250. Conversely, the record here is not so clear, and therefore the
       presumption that defendant’s postconviction counsel made a concerted effort to obtain
       affidavits in support of the claims is not rebutted. See id.
¶ 23        Specifically, defendant’s amended postconviction petition raised the issues of the lapse
       of time between the alleged offense occurring and the State bringing charges, the prosecuting
       attorney being nominated for a judgeship, alleged legal misrepresentations by the
       prosecution, and the denial of the effective assistance of counsel. In support of these
       allegations, defendant submitted supporting documentation. With respect to defendant’s
       argument that he was denied the effective assistance of counsel because he did not have
       access to discovery documents, defendant’s documentation in support of his pro se petition
       clearly sets forth that trial counsel filed a motion for defendant to have access to discovery,
       but the trial court denied that motion. Therefore, defendant’s claim of being denied the
       effective assistance of counsel was based on the actions of the trial court, not trial counsel.
       Similarly, defendant does not identify the additional evidence that needed to be submitted
       with the amended petition to support his allegation that the prosecutor had a conflict of
       interest resulting from his candidacy for a judgeship. Finally, defendant represents in his brief
       before this court that postconviction counsel failed to adequately shape his pro se claim of
       a violation pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). However, because that
       claim lacked merit, counsel properly did not reallege it in his amended petition.
¶ 24        In short, unlike in Waldrop, the record is devoid of a “flat contradiction” that overcomes
       the presumption that postconviction counsel made a concerted effort to obtain supporting
       documents. As a result, we reject defendant’s contention that he was denied the reasonable
       assistance of postconviction counsel.
¶ 25        Last, defendant argues that his postconviction counsel failed to adequately represent him
       under Rule 651(c) because he failed to provide a properly notarized affidavit, and his
       inclusion of a certification under section 1-109 of the Code of Civil Procedure (see 735 ILCS
       5/1-109 (West 2008)) did not cure that failure. Defendant asks that we remand for
       appointment of new counsel, which is what the reviewing court did in Nitz. For the same
       reasons, the State asks that we affirm the dismissal.
¶ 26        Insofar as we have already upheld the trial court’s second-stage dismissal of defendant’s
       postconviction petition on the merits, we need not seek out an alternative, procedural defect
       on which to substantively decide the appeal. See People v. Johnson, 208 Ill. 2d 118, 129
       (2003) (stating that a reviewing court may affirm a trial court’s judgment on any ground
       appearing in the record). Moreover, our supreme court would prefer that we do not. See
       Petrenko, 237 Ill. 2d at 505 (noting that courts need not consider issues where they are not
       essential to the disposition of the cause or where the result will not be affected regardless of
       how the issues are decided).
¶ 27        We recognize People v. Carr, 407 Ill. App. 3d 315 (2011), as it is a published decision
       from this court (this author and Justice McLaren here concurring); however, Carr does not
       explain why it chose to address and resolve the appeal based on a procedural defect that was
       not addressed by the lower court prior to appellate review. See People v. Sparks, 393 Ill.
       App. 3d 878, 883 (2009) (stating that, at the dismissal stage of a postconviction proceeding,


                                                 -7-
       the trial court is concerned merely with determining whether the petition’s allegations
       sufficiently demonstrate a constitutional infirmity that would necessitate relief under the
       Act). We also recognize Nitz as it is a published decision from this court; however, we
       believe in the instant case that the notarization and certification issues are not justiciable and
       need not be addressed in this appeal. Once the State moved to dismiss on the merits and did
       not challenge the alleged procedural defects, and once the trial court conducted a hearing,
       during which neither party raised the alleged procedural defects, and presented its ruling
       based on the merits, the purported notarization and certification issues became moot.
¶ 28       Furthermore, we believe that our resolution of the current matter is more consistent with
       the spirit and purpose of the Act. See People v. Taylor, 237 Ill. 2d 356, 372 (2010) (stating
       that the purpose of a postconviction proceeding is to permit inquiry into constitutional issues
       involved in the original trial that have not been, and could not have been, adjudicated
       previously upon direct review). Our method of resolution also comports with our supreme
       court’s long-held view that the Act in general must be “ ‘liberally construed to afford a
       convicted person an opportunity to present questions of deprivation of constitutional
       rights.’ ” People v. Rissley, 206 Ill. 2d 403, 421 (2003) (quoting People v. Correa, 108 Ill.
       2d 541, 546 (1985)). And finally, under the auspices of fairness, we believe that reviewing
       and addressing the merits of a postconviction petition provide a more just result to a person
       under a criminal sentence. See People v. Boclair, 202 Ill. 2d 89, 101-02 (2002) (noting that,
       if a postconviction petition is untimely filed but has obvious substantive merit, i.e., if it
       clearly demonstrates that a prisoner suffered a deprivation of constitutional magnitude, a
       dutiful prosecutor should waive the procedural defect). For all of these reasons, we decline
       to apply the holdings of Carr and Nitz to the circumstances of the present case.
¶ 29       Accordingly, we affirm the judgment of the circuit court of McHenry County.

¶ 30       Affirmed.




                                                  -8-
