                                            2018 IL App (3d) 150630

                                   Opinion filed April 3, 2018
       _____________________________________________________________________________

                                                     IN THE

                                     APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       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. 3-15-0630
              v. 	                                       )       Circuit No. 02-CF-351

                                                         )

       MARCUS T. DIXON,                                  )       Honorable

                                                         )       Walter D. Braud,
              Defendant-Appellant.                       )       Judge, Presiding.
       _____________________________________________________________________________

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

                                                   OPINION

¶1            The defendant, Marcus T. Dixon, appeals the denial of his postconviction petition at the

       second stage of postconviction proceedings. The defendant argues that his postconviction

       counsel failed to provide a reasonable level of assistance in that counsel failed to shape the

       defendant’s pro se claims into proper legal form in the amended petition filed by counsel.

¶ 2	                                                 FACTS

¶3            Following a jury trial, the defendant was convicted of two counts of aggravated battery

       with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2002)). The court sentenced the defendant to 20
     years’ imprisonment on each count. On appeal, we affirmed the defendant’s conviction. People

     v. Dixon, No. 3-03-0041 (2005) (unpublished order under Illinois Supreme Court Rule 23).

¶4          On January 25, 2006, the defendant filed a pro se postconviction petition. The defendant

     attached a signed, unnotarized affidavit to his petition describing the manner in which he was

     arrested. On January 31, 2006, the court appointed postconviction counsel for the defendant.

     Over the next five years, the court appointed three separate attorneys, and they each withdrew.

     On April 20, 2011, the court appointed the defendant’s fourth and final postconviction attorney.

¶5          On January 2, 2015—nearly four years after his appointment—counsel filed an amended

     petition for postconviction relief. After setting forth the procedural history of the case, the

     amended petition stated:

                            “A. [The defendant’s] Sixth Amendment right to effective assistance of

                    counsel was violated by [trial counsel] for the following reasons:

                                      1. Counsel failed to order a fitness evaluation of defendant prior to

                            trial. [Citation.]

                                      2. Counsel failed to investigate facts or interview witnesses prior to

                            trial. [Citation.]

                                      3. Counsel failed to file any pre-trial motions on the defendant’s

                            behalf.

                                      4. Counsel failed to call witnesses at trial that would have

                            corroborated the defendant’s defense. [Citation.]

                                      5. Counsel failed to file a motion to quash defendant’s arrest when

                            there were witnesses who would have provided testimony in support of

                            such motion.

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               6. Counsel failed to impeach witnesses at trial when there were

       contradictory statements made. [Citation.]

       B. [The defendant’s] Sixth Amendment right to effective assistance of

counsel was violated by appellate attorneys for the following reason:

               1. Counsel failed to raise a claim of ineffective assistance of

       counsel against trial counsel for trial counsel’s failure to strike for cause

       biased jurors.

       C. [The defendant’s] Sixth Amendment right to effective assistance of

counsel was violated by post-trial [counsel] for the following reasons:

               1. Counsel failed to prepare or investigate aggravation and

       mitigation evidence. [Citations.]

               2. Counsel failed to object to the admission of false information

       during sentencing.

       D. Furthermore, [the defendant’s] Fourth and Fourteenth Amendment

right to Due Process was violated for the following reasons:

               1. The trial court denied funding to the defense for the use of

       expert witnesses that could have been used to bolster the defendant’s

       defense. [Citations.]

               2. The trial court allowed the State to call one or more witnesses at

       trial who were not disclosed to the defense prior to trial, in violation of the

       Illinois Supreme Court’s rules of discovery. [Citation.]




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                                       3. The State did not disclose evidence of ballistic testing and labs

                               prior to trial in violation of the Illinois Supreme Court’s rules of

                               discovery. [Citation.]

                                       4. The State presented deceptive, false, and misleading testimony

                               at the preliminary hearing. [Citations.]

                                       5. The State used evidence in trial that was obtained by an

                               unconstitutional search. [Citations.]

                               E. [The defendant’s] Fourth and Fourteenth Amendment protection

                       against unreasonable search and seizure was violated for the following reason:

                                       1. Defendant was arrested without a warrant and without probable

                               cause. [Citations.]

                                       2. Defendant’s property was seized without a warrant.

                               F. [The defendant’s] Sixth Amendment right to an impartial jury was

                       violated for the following reason:

                                       1. The jurors chosen and selected were neither impartial, nor from

                               a fair cross-section of the community where the jurors had substantial ties

                               to the State’s Attorney’s office and the county police department.”

¶6             The amended petition stated that the defendant sought “incorporation of the Affidavits

       attached to his pro se Petition for Post-Conviction Relief filed on January 25, 2006.” Counsel

       also filed a Rule 651(c) certificate. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶ 7	           The State filed a motion to dismiss the amended postconviction petition. The motion to

       dismiss argued that the allegations in the amended petition were conclusory and not supported by

       affidavits or the record.

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¶8             Postconviction counsel filed an answer to the motion to dismiss, which stated that a

       pro se document prepared by the defendant titled “Memorandum of Points and Authorities in

       Support of Attached Petition for Post-Conviction Relief” was attached. Postconviction counsel

       requested that this document “be accepted as an exhibit to [the defendant’s] original Petition and

       his Amended Petition and characterized as an affidavit in support of the claims advanced in both

       versions of the Petition.” The memorandum was an unnotarized, handwritten document that also

       included police reports and other documentation. The memorandum and supporting documents

       were over 70 pages long.

¶9             A hearing was held on the State’s motion to dismiss. The court asked the State if the

       defendant had “filed enough to get to us [sic] Stage 3.” The State replied, “Nope.” The State

       argued that the petition was not sufficient to warrant an evidentiary hearing because there were

       no affidavits supporting the claims raised in the petition. The State described the pro se

       memorandum that counsel submitted as an affidavit as “about 50 pages of gibberish, copies of

       police reports, and stuff that I can’t make heads or tails of.” The court granted the State’s motion

       to dismiss, finding that the amended petition did not contain affidavits supporting the claims in

       the petition.

¶ 10                                               ANALYSIS

¶ 11           The defendant argues that he did not receive a reasonable level of assistance from his

       postconviction counsel because counsel failed to put his claims into proper legal form in the

       amended petition.

¶ 12           The defendant’s petition was dismissed at the second stage of postconviction

       proceedings. “During the second stage, the petitioner bears the burden of making a substantial

       showing of a constitutional violation.” People v. Domagala, 2013 IL 113688, ¶ 35.


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                       “The second stage of postconviction review tests the legal sufficiency of the

                       petition. Unless the petitioner’s allegations are affirmatively refuted by the record,

                       they are taken as true, and the question is whether those allegations establish or

                       ‘show’ a constitutional violation. In other words, the ‘substantial showing’ of a

                       constitutional violation that must be made at the second stage [citation] is a

                       measure of the legal sufficiency of the petition’s well-pled allegations of a

                       constitutional violation, which if proven at an evidentiary hearing, would entitle

                       petitioner to relief.” (Emphasis in original.) Id.

¶ 13           “During second-stage proceedings, the court may appoint counsel for an indigent

        defendant, who may amend the petition as necessary ***.” People v. Cotto, 2016 IL 119006,

        ¶ 27. The defendant is entitled to a reasonable level of assistance from appointed counsel. People

        v. Greer, 212 Ill. 2d 192, 204 (2004). In order to assure that a defendant receives a reasonable

        level of assistance from postconviction counsel, Illinois Supreme Court Rule 651(c) (eff. Feb. 6,

        2013) imposes three duties on counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Specifically,

        Rule 651(c) provides that counsel must certify that he or she (1) “has consulted with petitioner

        by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of

        constitutional rights,” (2) “has examined the record of the proceedings at the trial,” and (3) “has

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

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

¶ 14	          “The purpose of [Rule 651(c)] is to ensure that postconviction counsel shapes the

        defendant’s claims into a proper legal form and presents them to the court.” People v. Profit,

        2012 IL App (1st) 101307, ¶ 18; see also People v. Richmond, 188 Ill. 2d 376, 381 (1999)

        (“ ‘The [Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014))] can not


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        [sic] perform its function unless the attorney appointed to represent an indigent petitioner

        ascertains the basis of his complaints, shapes those complaints into appropriate legal form and

        presents them to the court.’ ” (quoting People v. Slaughter, 39 Ill. 2d 278, 285 (1968))). Where,

        as in the instant case, postconviction counsel files a Rule 651(c) certificate, there is a

        presumption that the defendant received reasonable assistance of postconviction counsel. People

        v. Russell, 2016 IL App (3d) 140386, ¶ 10. However, that presumption may be rebutted by the

        record. Id.

¶ 15           Here, the record rebuts the presumption that counsel fulfilled the requirements of Rule

        651(c) because the record shows that counsel failed to make the necessary amendments to the

        pro se petition to adequately present the defendant’s claims. That is, counsel failed to shape the

        defendant’s pro se claims into proper legal form. See Profit, 2012 IL App (1st) 101307, ¶ 18;

        Richmond, 188 Ill. 2d at 381.

¶ 16           First, the amended petition failed to allege the basic elements of the claims it raised. For

        example, the amended petition alleged several claims of ineffective assistance of counsel but

        failed to allege that the defendant was prejudiced by trial counsel’s deficiencies. “To prevail on

        *** a claim [of ineffective assistance of counsel], a defendant must show both that his counsel

        was deficient and that this deficiency prejudiced the defendant.” People v. Bew, 228 Ill. 2d 122,

        127 (2008). Without even an allegation of prejudice, the petition could not have stated a viable

        claim of ineffective assistance of counsel. Because the petition failed to allege the basic elements

        of the claims it raised, the petition was not in an appropriate legal form to present the defendant’s

        claims to the court.

¶ 17	          Similarly, the amended petition contained virtually no specific, factual allegations to

        support the general claims it asserted. Rather, the petition contained only conclusory allegations.


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       For example, the petition alleged that trial counsel was ineffective for failing to request a fitness

       hearing but alleged no facts showing that there was a bona fide doubt as to the defendant’s

       fitness. See People v. McCallister, 193 Ill. 2d 63, 110 (2000) (“A defendant is presumed fit to

       stand trial. [Citation.] A defendant is entitled to a fitness hearing only when a bona fide doubt of

       his fitness to stand trial or be sentenced is raised.”).

¶ 18           The other allegations of ineffective assistance of counsel are similarly conclusory. For

       example, the amended petition stated that trial counsel was ineffective for failing to file pretrial

       motions but does not allege what motions counsel could have filed or that such motions would

       have been successful. Additionally, the petition states that trial counsel was ineffective for failing

       to investigate and call defense witnesses, but the petition does not specify who trial counsel

       should have called as witnesses and what the content of their testimony would have been.

¶ 19           Also, the amended petition alleged that the defendant’s constitutional rights were violated

       because he was arrested without a warrant and without probable cause. However, the petition

       gives no factual detail surrounding the arrest that would show the defendant was arrested without

       probable cause. Notably, an arrest warrant appears in the record, which the amended petition

       does not address. Also, the petition alleged that the State used evidence at trial that was obtained

       by an unconstitutional search, but the petition does not specify what the evidence was or allege

       the reason the search was unconstitutional.

¶ 20           “The allegations [in a postconviction petition] must contain a sufficient factual

       recounting of the basis for defendant’s post-conviction claim.” People v. Kubik, 214 Ill. App. 3d

       649, 654 (1991). When courts determine whether the allegations in a postconviction petition

       make a substantial showing of a constitutional violation, “all well-pleaded facts in the petition

       and affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely


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       amount to conclusions are not sufficient to require a hearing under the Act.” People v. Rissley,

       206 Ill. 2d 403, 412 (2003). Because the amended petition failed to allege specific facts to

       support its general claims, there was virtually nothing for the circuit court to take as true at the

       second stage. Thus, the amended petition was not in proper legal form.

¶ 21           In coming to this conclusion, we acknowledge that our supreme court has held that, in the

       absence of a showing that sufficient facts or evidence exists, postconviction counsel does not

       provide unreasonable assistance in “ ‘failing to make the [amended] petition’s allegations

       factually sufficient to require the granting of relief.’ ” People v. Spreitzer, 143 Ill. 2d 210, 221

       (1991) (quoting People v. Stovall, 47 Ill. 2d 42, 46 (1970)). Here, it was not postconviction

       counsel’s failure to plead sufficient facts to ultimately require the granting of relief that rendered

       counsel’s assistance unreasonable. Rather, counsel provided an unreasonable level of assistance

       because he failed to allege any specific facts in support of the general claims raised in the

       petition.

¶ 22           We note that it is not necessary for postconviction counsel to amend a petition if the

       amendment “would only further a frivolous or patently nonmeritorious claim.” Greer, 212 Ill. 2d

       at 205. Indeed, “[a]n attorney *** who determines that defendant’s claims are meritless cannot in

       good faith file an amended petition on behalf of defendant.” Id. Here, postconviction counsel

       chose to file an amended petition, so we assume that counsel found that the allegations in the

       pro se petition were not frivolous. If counsel had found some of the claims in the petition to be

       frivolous, the appropriate procedure would have been to omit those claims from the petition. If

       counsel had found all the claims in the petition to be frivolous, the appropriate procedure would

       have been to stand on the pro se petition or seek to withdraw as counsel. People v. Malone, 2017

       IL App (3d) 140165, ¶ 10.


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¶ 23          Finally, we would be remiss if we did not call attention to postconviction counsel’s

       submission of the defendant’s handwritten, unnotarized, 70-page pro se memorandum in lieu of

       a proper affidavit. This was improper because the handwritten memorandum was not a sworn

       statement. “[A]n affidavit must be sworn to, and statements in a writing not sworn to before an

       authorized person cannot be considered affidavits.” Roth v. Illinois Farmers Insurance Co., 202

       Ill. 2d 490, 494 (2002). To comply with Rule 651(c) and section 122-2 of the Act (725 ILCS

       5/122-2 (West 2014)), counsel should have submitted a proper, sworn affidavit of the defendant.

¶ 24          It is unclear from this record, however, whether counsel would have been able to obtain

       other affidavits or evidence to support the defendant’s claims. Our supreme court has recognized:

                             “In the ordinary case, a trial court ruling upon a motion to dismiss a post-

                      conviction petition which is not supported by affidavits or other documents may

                      reasonably presume that post-conviction counsel made a concerted effort to obtain

                      affidavits in support of the post-conviction claims, but was unable to do so.”

                      People v. Johnson, 154 Ill. 2d 227, 241 (1993).

       As we are remanding this case on the basis that counsel failed to shape the defendant’s claims

       into proper legal form by alleging the basic elements of the claims and supporting facts, counsel

       will have an opportunity to obtain and submit supporting affidavits and other evidence, if any

       exists, along with the amended petition.

¶ 25                                              CONCLUSION

¶ 26          The judgment of the circuit court of Rock Island County is reversed. The cause is

       remanded so that postconviction counsel may file a new amended postconviction petition that

       adequately presents the defendant’s claims.

¶ 27          Reversed and remanded.


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