                                                                         Digitally signed by
                                                                         Reporter of Decisions
                        Illinois Official Reports                        Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                                                                         Date: 2017.12.21
                               Appellate Court                           13:07:29 -06'00'




                    People v. Sweet, 2017 IL App (3d) 140434



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            DEREK I. SWEET, Defendant-Appellant.



District & No.     Third District
                   Docket Nos. 3-14-0434, 3-16-0346 cons.



Filed              September 8, 2017
Rehearing denied   October 2, 2017



Decision Under     Appeal from the Circuit Court of McDonough County, No.
Review             01-CF-141; the Hon. Dwayne Morrison, and the Hon. Richard
                   Gambrell, Judges, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Peter A. Carusona, and Dimitrios G. Golfis, of
Appeal             State Appellate Defender’s Office, of Ottawa, for appellant.

                   Matthew P. Kwacala, State’s Attorney, of Macomb (Patrick Delfino,
                   Lawrence M. Bauer, and Mark A. Austill, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE CARTER delivered the judgment of the court, with opinion.
                   Justices Lytton and Schmidt concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Derek I. Sweet, appeals the denial of his postconviction petition after a
     third-stage evidentiary hearing. On appeal, defendant argues this court should reverse the trial
     court’s denial of his postconviction petition because he was denied the reasonable assistance of
     postconviction counsel where his postconviction counsel failed to present any evidence in
     support of his claim that his trial counsel, Gayle Carper, was operating under a per se conflict
     of interest at the time of defendant’s guilty plea. Defendant also appeals the dismissal of his
     petition for relief from judgment filed pursuant to section 2-1401 of the Code of Civil
     Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), arguing that (1) the trial court
     erroneously dismissed the section 2-1401 petition and (2) the trial court abused its discretion
     by denying defendant’s request for counsel to be appointed for representation on his section
     2-1401 petition. We affirm both the denial of defendant’s postconviction petition and the
     dismissal of his petition for relief from judgment.

¶2                                             FACTS
¶3                                          A. Background
¶4       On September 10, 2001, at the age of 25, defendant was charged with first-degree murder
     of two-year-old Faith Hamann. The charging instrument was subsequently amended, alleging
     that defendant had “without lawful justification, bent Faith Hamann backwards, bending her
     back, causing a separation of the vertebrae and a torn aorta, knowing such acts created a strong
     probability of great bodily harm to Faith Hamann, thereby causing the death of Faith
     Hamann.” Defendant was represented by John Carter, a public defender.
¶5       On October 1, 2001, after a preliminary hearing, defendant pled not guilty. On August 5,
     2002, Carter withdrew as counsel for defendant due to a conflict of interest. The trial court
     appointed Gayle Carper as defendant’s new counsel.
¶6       On December 3, 2002, defendant’s jury trial began. On the first day of trial, the State’s
     evidence showed that defendant and his girlfriend, Sarah, were living together with Sarah’s
     two children—seven-year-old Logan and two-year-old Faith. On the evening of Faith’s death,
     Sarah had gone out to run errands, leaving the children with defendant. Twenty minutes later
     defendant called 9-1-1 because Faith was not breathing. Upon arrival at the home, the police
     chief observed Faith lying on the kitchen counter, unresponsive, and defendant standing next
     to her. Defendant appeared panicked and upset. Defendant initially indicated that Faith was in
     bed when he heard a thud, he found her facedown, and she was not breathing. An autopsy
     showed Faith had a torn aorta, which caused her to bleed to death internally, and she had an
     abnormal separation of the vertebrae caused by a forced hyperextension of her body
     backwards. A medical doctor opined that a massive amount of force was required to cause the
     injuries to Faith and death would come within minutes of the injuries. Defendant informed an
     investigator that he had picked up Faith while she was facedown, with her feet in one hand and
     her head in his other hand, and he bent her up so that her feet touched her head until he heard
     her back snap.
¶7       On the second day of trial, the prosecutor indicated that he would be calling one more
     witness to testify. The trial court announced it had been informed that defendant wished to
     withdraw his plea of not guilty and, instead, enter a plea of guilty. The trial court admonished


                                                -2-
       defendant in relation to his guilty plea and the sentencing range for the murder charge. The trial
       judge asked defendant if he understood that the charge against him carried a penalty range of
       20 to 100 years of imprisonment, to which defendant responded, “Yes, sir.” The trial judge
       asked defendant if he was telling the court that on September 7, 2001, he had bent Faith
       Hamann back, causing a fracture to the spine and a torn aorta, without lawful justification,
       knowing that action created a strong probability of causing her death, and that he committed
       the alleged offense. Defendant responded, “Yes, sir.” The trial court accepted defendant’s plea
       of guilty.
¶8          On March 7, 2003, the trial court sentenced defendant, who was then 27 years old, to 50
       years of imprisonment. Carper filed a motion, on defendant’s behalf, for the trial court to
       reconsider the sentence
¶9          Prior to a hearing on the motion to reconsider sentence filed by Carper, defendant filed a
       pro se motion to reconsider the sentence and a pro se motion to withdraw his guilty plea,
       alleging that Carper had failed to investigate his defense and had coerced him into pleading
       guilty by telling him he would get a 20-year sentence if he pled guilty and a life sentence if he
       did not plead guilty. In support of his motion to withdraw his guilty plea, defendant claimed
       that he received inadequate representation of counsel because Carper should have presented a
       defense but, instead, “she did not say anything whatsoever to counter balance the States
       Attorney’s unfounded evidence, for this crime [he] did not commit.” Defendant further
       claimed that he was coerced into pleading guilty by Carper, who told defendant that the judge
       felt sorry for him, felt he had shown enough remorse, looked at defendant as if he were his own
       son sitting in defendant’s chair, felt defendant was not involved in Faith’s death, and felt that
       even if defendant were involved in Faith’s death, it was an accident and not intentional.
       Defendant also argued that Carper told him that if he refused to enter an open plea of guilty, he
       was going to get a life sentence. Defendant further claimed that a thorough investigation of the
       crime was not completed.
¶ 10        In his motion for reduction of sentence, defendant indicated that his sentence should be
       reduced because, among other things, (1) his attorney “should have presented a defense
       period” and his attorney “didn’t say anything whatsoever to counter balance the State
       Attorney’s unfounded evidence”; (2) a thorough investigation had not been done, over 200
       names were given and no one checked them out, and “no full or any defense investigation
       period”; and (3) his attorney had guaranteed him “an easy and short 20 year sentence” and he
       feels his counsel violated his rights and “took prime advantage of [him] not knowing the law or
       laws of the nature of [the] crime committed.”
¶ 11        On April 21, 2003, Carper filed a motion to withdraw as defendant’s counsel. In the
       motion, Carper indicated that defendant’s pro se motions contained false allegations regarding
       her representation and that her continued representation of defendant “would violate several
       Rules of Professional Conduct,” with Carper citing to Rules 1.16, 2.1, and 6.2 of the Illinois
       Rules of Professional Conduct of 2010 (Ill. R. Prof’l Conduct (2010) Rs. 1.16, 2.1, 6.1 (eff.
       Jan. 1, 2010)). Carper indicated that Rule 6.2 provided that a lawyer should not seek to avoid
       the appointment to represent a person, except for good cause, such as when representing the
       client will likely violate the Illinois Rules of Professional Conduct or when “the client or the
       cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or
       lawyer’s ability to represent the client.”


                                                   -3-
¶ 12       The hearing on Carper’s motion to withdraw took place on June 6, 2003. Carper indicated
       that on the day she came to court to argue the motion to reconsider sentence she had filed, she
       was informed that defendant had filed several pro se motions. Carper further indicated that that
       bulk of defendant’s allegations in his pro se motions pertained to her representation. She
       stated, “because I consider those allegations in his motions to be false, I feel that it would be, it
       would be requiring me to violate a number of rules of professional conduct to continue to
       represent him,” and she referenced Rules of Professional Conduct 1.16, 2.1, and 6.2. The trial
       court asked defendant if he objected to Carper withdrawing as his counsel. Defendant stated, “I
       have no problem with that, sir.” The trial court appointed Heidi Benson as defendant’s new
       counsel. Benson filed posttrial motions on behalf of defendant, which the trial court denied.
¶ 13       Defendant appealed, arguing that his guilty plea should be vacated as having been entered
       unknowingly and involuntarily due to the trial court’s failure to admonish him properly. He
       also argued that the requirement for those convicted of first degree murder of a child to register
       as a sex offender was unconstitutional. Defendant’s conviction and sentence were affirmed,
       with this court rejecting his argument that his plea was unknowing and involuntary and
       rejecting his constitutional challenge to the sex offender registration requirement. People v.
       Sweet, No. 3-03-0837 (2005) (unpublished order under Supreme Court Rule 23).

¶ 14                                     B. Postconviction Petition
¶ 15        On March 2, 2006, defendant filed a postconviction petition, alleging Carper had coerced
       him into pleading guilty when she knew the State’s evidence against him was weak, she had
       plenty of evidence to put on an overwhelming defense, and she mislead him into entering a
       “blind plea.” He further alleged that Carper neglected to ensure a proper defense investigation
       was conducted by the assigned private investigator and medical expert to “clear up the charges
       and to clearly see what was going on.” He claimed that, at trial, the credibility of the State’s
       medical expert regarding Faith’s autopsy and the credibility of other witnesses could have been
       called into question, evidence could have been presented that his confession was coerced,
       evidence that Faith had died prior to defendant arriving home could have been presented,
       evidence that Faith’s mother had a background of abuse and neglect and involvement with the
       Department of Children and Family Services (DCFS) could have been presented, and the
       manner in which the police investigation was conducted could have been called into question.
       He claimed that that he was not given Miranda warnings prior to speaking with police and the
       coroner. Defendant also claimed that his appellate counsel provided ineffective assistance for
       failing to present additional issues on appeal.
¶ 16        More specific to Carper’s representation, defendant alleged that Carper “never believed in
       [his] innocence,” and she had been assigned to his case only four months prior to trial. He
       alleged that Carper did not investigate any of his claims, did not have key defense witnesses
       interviewed, and did not file any pretrial motions. Defendant alleged that Carper “never
       intended to present a defense” and had him “plea out for no apparent good reason.” He claimed
       that as soon as he “spoke out about [Carper’s] poor representation,” Carper filed a motion to
       withdraw as his counsel. Defendant claimed that Carper prejudiced the court against him when
       she, in presenting her motion to withdraw, indicated to the court that defendant’s allegations of
       ineffective assistance were false and that she found defendant’s case to be “morally offensive”
       and him and his cause “too repugnant,” at a time when defendant had a pending motion to
       withdraw his guilty plea on file. According to defendant, Carper’s actions and statements made

                                                     -4-
       it impossible for the trial judge to hear his motion to withdraw his guilty plea with an open and
       unbiased mind. Defendant claimed that Carper’s view of the nature of his case, as “morally
       offensive” or “too repugnant,” was the view that she held “all along” and rather than Carper
       withdrawing as defendant’s counsel, she, perhaps, stayed on the case “long enough to sell
       [him] up the river.” Defendant alleged that Carper had no intention of providing him with a
       defense and failed to investigate his claims of innocence, improper police conduct, police
       brutality, an illegal and tainted crime scene, and coerced statements. He also claimed that
       Carper was ineffective for failing to go to trial, failing to seek a jury instruction on the lesser
       charge of manslaughter, failing to seek an outright acquittal, and, instead, coercing him into
       entering a blind plea at a point in the trial when only the State’s witnesses were heard and no
       defense or rebuttal for defendant had been presented.
¶ 17        Defendant’s postconviction petition was stricken as premature because defendant’s
       petition for leave to appeal to the Illinois Supreme Court was still pending. Defendant’s
       petition for leave to appeal was subsequently denied. On October 6, 2010, the trial court
       reinstated defendant’s postconviction petition and, subsequently, docketed defendant’s
       postconviction petition for second-stage consideration and appointed postconviction counsel.
       On May 4, 2011, the State filed a motion to dismiss defendant’s pro se postconviction petition.
¶ 18        On February 3, 2014, postconviction counsel filed a certificate pursuant to Illinois
       Supreme Court Rule 651(c) (eff. Feb. 6, 2012), certifying that he read the trial transcript,
       reviewed the entire circuit court file and the appellate court filings, corresponded with
       defendant by mail to ascertain his contentions of constitutional violations, reviewed all
       correspondence from defendant, investigated the legality of defendant’s allegations by way of
       extensive legal research, and determined that “[d]efendant’s pro se filing was legally sufficient
       on its face and did not require any amendments.” At the second-stage hearing on the State’s
       motion to dismiss the postconviction petition, postconviction counsel confirmed that the
       constitutional issue that had been raised in the petition was the lack of effective assistance of
       counsel and there were no other issues he was raising. The trial court found the petition was
       sufficient to raise the constitutional issue of lack of effective assistance of counsel and denied
       the State’s motion to dismiss.
¶ 19        On April 16, 2014, the trial court conducted a third-stage evidentiary hearing on
       defendant’s postconviction petition. Defendant testified that he and his trial counsel, Carper,
       had not discussed a guilty plea until the morning of the second day of trial and the State had not
       offered any plea deal. Sweet testified that on the morning of December 4, 2002, he was rushed
       from the jail to the courthouse earlier than he was originally scheduled to appear because
       Carper wanted to meet with him. Carper told him that the judge wanted to sentence him to 20
       years of imprisonment and the State would not offer any plea bargain because the prosecutor
       wanted defendant to get a life sentence. Carper told defendant that the judge felt sorry for him.
       Defendant indicated that Carper did not indicate anything about an “open plea.” Defendant
       testified:
                “I decided to plead guilty because she basically told me there was no defense in my, in
                my case, and there is. *** I sat there and argued and told her, ‘Yes, we do.’ ‘Call these
                witnesses and these witnesses.’ ‘We have a defense.’ ”
¶ 20        Defendant testified that he “vaguely” understood that his opportunity at trial to put on
       evidence had not yet occurred. He did not understand what the judge had meant when he asked
       defendant whether he had been threatened or promised anything in relation to entering a guilty

                                                    -5-
       plea. He had only read the written guilty plea to where his name was stated and then he was
       rushed into the courtroom and did not read the remainder of the document before signing it in
       front of the trial judge. During the guilty plea hearing, defendant was under the impression that
       he was pleading guilty in return for a 20-year sentence. He did not understand the judge’s
       question about promises made in relation to his guilty plea, and he did not say anything
       because Carper told him “to keep it hush-hush and just go along with the Court, keep [his]
       mouth shut, and everything would be all right.” He went along with what Carper told him to do
       because she gave him the impression that she would not put on a defense for him at trial and if
       he did not plead guilty, then he would likely get a life sentence. He tried to tell Carper that he
       had a defense because he did not do anything wrong, but Carper responded, “Well, I’m not
       gonna do it” and just threw her hands up, leaned back, and stared at him. Defendant
       acknowledged that he had responded, “Yes, sir” to the trial court question of whether he
       committed the offense and understood the sentencing range because Carper had instructed him
       to just go along with the trial court. He did not learn that he did not have an agreement for a
       20-year sentence until the trial court sentenced him to 50 years of imprisonment.
¶ 21       Defendant also testified as to his claim of a lack of investigation into his case. He indicated
       he did not know the timing for or procedures of the investigator and had relied on Carper to
       facilitate the investigation. Defendant was not questioned about his allegations that Carper had
       found him and his case “too repugnant” to be able to provide effective assistance of counsel.
¶ 22       Carper testified that she and defendant had discussed the evidence and had discussed
       “everything about the case for many hours and numerous times.” According to Carper, after
       the first day of trial, the evidence against defendant was “pretty overwhelming,” and defendant
       “decided to end the jury trial” and enter an “open plea.” She explained to defendant what an
       open plea meant numerous times. She testified that she did not tell defendant the judge had
       promised him a 20-year sentence or that there was a tacit understanding to that effect with the
       judge, indicating “there is no way that that existed and no way that I told that to him.” She did
       not tell defendant that if he refused to plead guilty, he would get life in prison. Carper testified
       that she would have put on a defense if the trial had continued and she “had been preparing for
       that for four months.” She felt prepared for trial. According to Carper, she and defendant had
       even sat down to prepare a statement in allocution, but he threw it away when he was about to
       give it. Carper also testified that she did not promise defendant a specific sentence or threaten
       him. She indicated that during her representation of defendant, “[h]e was willing to not only
       ask questions but to argue about the issues in the case.” She indicated that she did not coerce
       defendant into pleading guilty and stated that it was hard for her to get him to take her advice
       and she doubted that she could have coerced defendant into doing anything.
¶ 23       Carper further testified that she did not review the court file prior to the postconviction
       evidentiary hearing because “it was so big.” The part that she did read about the “accusations
       and lies told about [her] personally” was “so offensive” to her that she did not want to read any
       more. Carper indicated, “[y]ou have to understand that this has also been the subject of appeals
       and an ARDC complaint that was unfounded where the same lies and insults were said, so I am
       really not interested in reading the whole court file again.”
¶ 24       Carper testified that defendant had wanted to bring in witnesses to testify about the prior
       DCFS complaints that had been made against Faith’s mother. Carper’s decision was that those
       witnesses had no relevance to defendant’s murder trial, “so those witnesses were not gonna be
       called.” Carper contemplated calling a medical expert but decided against doing so because

                                                    -6-
       “the testimony would have been very damaging.” Carper’s defense for defendant at the point
       the trial stopped consisted of her cross-examining the State’s witnesses, with the defense’s
       case-in-chief depending on how the State had finished with their evidence.
¶ 25       On May 9, 2014, the trial court issued its decision and denied defendant’s postconviction
       petition. The trial court found that defendant failed to sustain his burden of demonstrating that
       his plea had been coerced, that he was promised a 20-year sentence in exchange for a guilty
       plea, or that Carper refused to put on a defense for him. The trial court found Carper to be
       credible and found defendant not credible. The trial court found that defendant failed to make a
       substantial showing that Carper provided ineffective assistance. Defendant appealed the denial
       of his postconviction petition.

¶ 26                       C. Section 2-1401 Petition for Relief From Judgment
¶ 27       Subsequently, on March 3, 2016, defendant filed a pro se section 2-1401 petition for relief
       from judgment. In the petition, defendant alleged that Carper had coerced him into pleading
       guilty by telling him that he would get a life sentence if he did not plead guilty and would
       receive a 20-year term of imprisonment if he did plead guilty. Defendant further alleged that
       Carper had written him a letter on January 5, 2003, and he had requested his postconviction
       counsel to submit the letter as evidence during postconviction proceedings but his
       postconviction counsel failed to do so. In the letter she sent to defendant, Carper had stated:
               “Remember that Judge Henderson has promised that there will be no life sentence.
               That makes me believe that he will fashion a sentence that will someday allow you to
               resume a positive life.”
¶ 28       In the section 2-1401 petition, defendant alleged that he did not receive a reasonable level
       assistance from his postconviction counsel because his postconviction counsel did not use the
       letter as evidence, nor did his postconviction counsel use the letter to impeach Carper’s
       testimony at the postconviction evidentiary hearing. Defendant also alleged that Carper
       committed perjury during the postconviction evidentiary hearing and if the circuit court had
       known of the letter, his postconviction petition would not have been denied. Defendant
       requested the appointment of counsel and attached an affidavit attesting to the truth of the
       statements in “the foregoing petition for a successive post conviction petition.” The trial court
       denied defendant’s request for the appointment of counsel, stating in its written ruling, “[t]here
       is no statutory basis for appointment of counsel in a 2-1401 motion proceeding.” Also in its
       written ruling, the trial court acknowledged that the State had not responded to defendant’s
       section 2-1401 petition, indicated that a trial court may dismiss a section 2-1401 petition
       sua sponte if the facts alleged failed to state a legal basis for relief, noted that a section 2-1401
       proceeding was not an appropriate forum for raising an ineffective assistance of counsel claim,
       and summarily dismissed the section 2-1401 petition because it was alleging the ineffective
       assistance of postconviction counsel. Defendant appealed.
¶ 29       Defendant’s two appeals have been consolidated by this court.

¶ 30                                        ANALYSIS
¶ 31                      A. Denial of Defendant’s Postconviction Petition
¶ 32       On appeal, defendant argues this court should reverse the denial of his postconviction
       petition and remand for further proceedings because his postconviction counsel did not


                                                     -7-
       provide a reasonable level of assistance. According to the defendant, his postconviction
       counsel failed to present any evidence regarding his postconviction claim that his trial counsel,
       Carper, was ineffective at the time defendant entered his guilty plea in that Carper was
       harboring a per se conflict of interest. The State argues that the record shows that
       postconviction counsel provided reasonable assistance and postconviction counsel was not
       required to advance defendant’s frivolous claim that Carper had represented defendant while
       operating under a per se conflict of interest.
¶ 33       A criminal defendant’s sixth amendment right to the effective assistance of counsel
       includes the right to representation that is conflict-free. People v. Hernandez, 231 Ill. 2d 134,
       142 (2008). However, there is no constitutional right to the assistance of counsel in
       postconviction proceedings; the right to counsel is wholly statutory, and petitioners are only
       entitled to the level of assistance provided for by the Post-Conviction Hearing Act (Act), which
       is a reasonable level of assistance. 725 ILCS 5/122-1 et seq. (West 2012); People v. Suarez,
       224 Ill. 2d 37, 42 (2007). Trial counsel and postconviction counsel serve different roles—a
       defendant in postconviction proceedings already has been stripped of the presumption of
       innocence and, therefore, the right to counsel in postconviction proceedings is not
       constitutionally required. People v. Owens, 139 Ill. 2d 351, 364-65 (1990).
¶ 34       In determining whether a defendant received ineffective assistance of counsel based on an
       alleged conflict of interest, we first resolve whether counsel labored under a per se conflict.
       Hernandez, 231 Ill. 2d at 142. If a per se conflict in defense counsel representation exists,
       defendant is not required to show that counsel’s actual performance was affected by the
       conflict, meaning defendant is not required to show actual prejudice. Id. at 143. Instead, a
       per se conflict is grounds for an automatic reversal. Id.
¶ 35       A per se conflict of interest is one in which facts about a defense attorney’s status gives rise
       to a disabling conflict, such as when a defendant’s attorney has ties to a person or entity that
       would benefit from an unfavorable verdict for defendant. Id. The very nature of the per se
       conflict rule precludes inquiry into the specific facts of a case because the status of the
       defendant’s attorney itself dictates the application of the per se rule. Id. at 150. Our supreme
       court has held that a per se conflict of interest exists where defense counsel (1) has a prior or
       contemporaneous association with the victim, prosecution, or entity assisting the prosecution;
       (2) contemporaneously represents a prosecution witness; or (3) was a former prosecutor who
       had been personally involved in the prosecution of the defendant. Id. at 143-44.
¶ 36       Distinguishable from a per se conflict of interest is an actual conflict of interest. An actual
       conflict of interest exists where the defendant can point to a specific defect in his counsel’s
       strategy, tactics, or decision making that was attributable to a conflict. Id. at 144. If the trial
       court has not been apprised of the potential conflict, then a reversal of a conviction will only be
       had upon a showing that an actual conflict of interest adversely affected counsel’s
       performance. People v. Spreitzer, 123 Ill. 2d 1, 18 (1988).
¶ 37       Here, defendant requests this court to, as a matter of first impression, find that a per se
       conflict of interest exists where trial counsel represented a defendant who is, or whose cause is,
       so repugnant to the attorney that the attorney-client relationship or the attorney’s ability to
       represent the defendant is likely to be impaired. This court need not address defendant’s
       contention that such a scenario creates a per se conflict because the record indicates that
       Carper was not acting either under a per se or an actual conflict of interest in regard to her


                                                    -8-
       personal feeling about defendant or the nature of his case during her representation of
       defendant.
¶ 38        The record indicates that Carper filed a motion to withdraw from representing defendant
       during postplea proceedings. In her motion, she indicated that she could no longer represent
       defendant because she found his allegations pertaining to her performance, as alleged in his
       pro se posttrial motions, to be so repugnant that her continued representation of him would
       violate Illinois Rule of Professional Conduct 6.2(c). There is no indication of a conflict of
       interest prior to trial, during trial, or during the guilty plea hearing, and Carper withdrew as
       defendant’s counsel as soon as the conflict arose when defendant filed his pro se postplea
       motion that alleged Carper’s ineffective assistance of counsel. Consequently, defendant’s
       postconviction counsel did not provide unreasonable assistance to defendant during
       postconviction proceedings by failing to present evidence of defendant’s claim that Carper was
       ineffective for harboring a per se conflict of interest where the record shows that a conflict of
       interest did not exist. See People v. Greer, 212 Ill. 2d 192, 205 (2004) (providing that
       postconviction counsel is not required to advance a frivolous claim or a claim that is patently
       without merit).
¶ 39        We also reject defendant’s claim that postconviction counsel was ineffective for initially
       adopting at the second stage of the postconviction proceeding defendant’s pro se claim of
       Carper’s ineffective assistance as his trial counsel due to an alleged conflict of interest and then
       failing to present any evidence in support of that claim during the third-stage evidentiary
       hearing. At the evidentiary hearing, Carper testified that she was prepared to represent
       defendant at trial and that her conflict in representing defendant did not arise until after
       defendant filed his pro se postplea motion of ineffective assistance of counsel containing what
       Carper felt were unfounded lies and insults toward her performance as his counsel.
       Defendant’s claim that Carper harbored strong negative feelings toward him that biased her
       against him to the point of creating a per se conflict of interest, from almost inception of her
       representation of him, was not proven. Notably, defendant does not indicate what, if any,
       evidence postconviction counsel could have or should have presented in support of
       defendant’s speculative claim that his trial counsel was operating under the alleged per se
       conflict during her representation of him. Even more notable is the fact that the record shows
       that Carper withdrew from representing defendant when the conflict arose. Under the
       circumstances of this case, we find no deficiency in postconviction counsel’s representation of
       defendant and conclude that defendant received the reasonable level of assistance afforded
       under the Act. Therefore, we affirm the trial court’s denial of defendant’s postconviction
       petition.

¶ 40                 B. Dismissal of Defendant’s Petition for Relief From Judgment
¶ 41       Defendant also argues on appeal that the circuit court erred by dismissing his section
       2-1401 petition. Defendant contends that his section 2-1401 petition properly raised the
       following three claims: (1) his postconviction petition would not have been denied if the circuit
       court had known of Carper’s letter; (2) the letter indicated that Carper testified falsely at the
       postconviction evidentiary hearing regarding whether the judge made a promise regarding
       defendant’s sentence; and (3) his postconviction counsel provided unreasonable assistance
       where postconviction counsel was well aware of Carper’s letter but postconviction counsel
       failed to present the letter during postconviction proceedings. The State argues, among other

                                                    -9-
       things, that defendant’s section 2-1401 petition failed to show the existence of a meritorious
       claim or defense.
¶ 42        Section 2-1401 of the Code sets forth a statutory procedure for the vacatur of judgment that
       is more than 30 days old. 735 ILCS 5/2-1401 (West 2012). Relief under section 2-1401 is
       provided where a petitioner proves by the preponderance of the evidence (1) the existence of a
       meritorious defense or claim that would have precluded the entry of a judgment in the original
       action, (2) due diligence in presenting this defense or claim in the original action, and (3) due
       diligence in filing the section 2-1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209,
       220-21 (1986). For the purposes of section 2-1401, a meritorious defense involves an error of
       fact or the existence of a valid defense that was not presented to the trial court that would have
       prevented the entry of the judgment. People v. Pinkonsly, 207 Ill. 2d 555, 565-66 (2003). If the
       facts alleged in a section 2-1401 petition cannot state a legal basis for the relief requested, the
       petition may be challenged at any time, even on appeal. People v. Vincent, 226 Ill. 2d 1, 8-9
       (2007). We review the dismissal of a section 2-1401 petition presenting purely legal claims
       de novo. Id. at 18.
¶ 43        We agree with the State that the content of Carper’s letter does not show the existence of a
       meritorious claim or defense. The letter merely states that the judge promised no life sentence
       and that Carper believed that the judge would “fashion a sentence that will someday allow
       [defendant] to resume a positive life.” Defendant did not receive a life sentence and the letter
       does not promise a particular sentence. Defendant was sentenced to a 50-year term of
       imprisonment. Presenting Carper’s letter at sentencing or in the postconviction proceedings
       would not have precluded the entry of the judgment, sentence, or a denial of defendant’s
       postconviction petition.
¶ 44        Defendant also argues that the trial court erred by failing to appoint him counsel to
       represent him on his section 2-1401 petition. The trial court had discretion in appointing
       counsel but chose not to do so. See People v. Kane, 2013 IL App (2d) 110594, ¶ 21 (while the
       appointment of counsel is not expressly prohibited in section 2-1401 proceedings, there is no
       statutory basis for the appointment of counsel in section 2-1401 proceedings and if the trial
       court is not required to, or prohibited from, taking an action, the court will be said to have
       discretion to do or not do that action). A trial court commits error when it refuses to exercise
       discretion based on the erroneous belief that it does not have the power to exercise its
       discretion. Id.
¶ 45        Defendant argues that the trial court abused its discretion by failing to exercise its
       discretion because “the court failed to recognize that it had discretion to appoint counsel.” In
       denying defendant’s request for the appointment of counsel for representation on his section
       2-1401 petition, the trial court simply stated, “[t]here is no statutory basis for appointment of
       counsel in a 2-1401 motion proceeding.” The statement does not support defendant’s claim
       that the trial court did not realize it had discretion to do so but, rather, merely indicates that the
       trial court knew defendant did not have a statutory right to counsel. There is no affirmative
       indication in the record to support defendant’s claim that the trial court did not know it had the
       discretion to appoint counsel just because the trial court correctly indicated that defendant did
       not have a statutory right to counsel “in a 2-1401 motion proceeding.” See In re Jonathon C.B.,
       2011 IL 107750, ¶ 72 (presuming that a trial judge knows and follows the law unless the record
       affirmatively indicates otherwise).


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¶ 46      For the foregoing reasons, we also affirm the trial court’s dismissal of defendant’s section
       2-1401 petition for relief from judgment.

¶ 47                                       CONCLUSION
¶ 48      The judgments of the circuit court of McDonough County are affirmed.

¶ 49      Affirmed.




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