                                        2017 IL App (3d) 150460

                              Opinion filed September 29, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                   2017

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 10th Judicial Circuit,
                                                     )       Tazewell County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-15-0460
            v.                                       )       Circuit No. 09-CF-488
                                                     )
     RICK VINSON,                                    )
                                                     )       Honorable Paul P. Gilfillan,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice Carter concurred in the judgment and opinion.
            Justice McDade concurred in part and dissented in part, with opinion.

                                                OPINION

¶1          Defendant, Rick Vinson, appeals the partial dismissal of his postconviction petition at the

     second stage, arguing that postconviction counsel was unreasonable for failing to (1) allege

     ineffective assistance of appellate counsel based on a conflict of interest and (2) attach

     supporting evidence. We affirm.
¶2                                                  FACTS

¶3          After a bench trial, the court found defendant guilty of four counts of criminal sexual

     assault. 720 ILCS 5/12-13(a)(1), (a)(2) (West 2008). 1 The court sentenced defendant to two

     consecutive terms of four years’ imprisonment, with two of the four counts merging. During

     trial, defendant was represented by private counsel, Jason Kopec. Kopec continued to represent

     defendant during his direct appeal. This court affirmed defendant’s convictions on direct appeal.

     People v. Vinson, 2011 IL App (3d) 100667-U. In doing so, we noted that two of defendant’s

     arguments were forfeited and defendant failed to argue plain error. Id. ¶¶ 39-41, 47. We also

     noted that one of defendant’s arguments was waived because defendant “only raise[d] this issue

     on appeal but [did] not argue it.” Id. ¶ 50.

¶4          Defendant subsequently filed a pro se postconviction petition. The petition alleged,

     inter alia, numerous instances of ineffective assistance of counsel. Specifically, defendant

     argued, in part, that trial counsel was ineffective for failing to (1) properly file motions or object

     during trial to the extent that issues raised on direct appeal were considered waived or forfeited,

     (2) advise defendant on the terms of an alleged plea offer and whether to consider it, and (3)

     advise defendant on what his sentence would be and the percentage of the sentence he would

     have to serve. Defendant argued that appellate counsel was ineffective for failing to (1) argue

     plain error of the forfeited errors and (2) address more fully the issue the appellate court deemed

     waived. Defendant further alleged that he had asked that trial counsel have the Office of the State

     Appellate Defender appointed on appeal, but counsel had ignored defendant’s request.

¶5          The circuit court did not rule on defendant’s pro se petition within 90 days. Therefore,

     the court appointed postconviction counsel, and the petition moved to the second stage.

            1
             This statute was subsequently renumbered as section 11-1.20 by Public Act 96-1551 (Pub. Act
     96-1551 art. 2, § 5 (eff. July 1, 2011)).
                                                       2
Postconviction counsel filed a 68-page amended petition and a Rule 651(c) certificate stating that

he made all amendments necessary for presentation of defendant’s contentions. The petition

included a footnote that stated: “The Defendant denies that he retained his trial counsel for the

appeal. The Defendant asserts that he had wanted an appellate defender but that his trial counsel

never had one appointed.” The amended petition advanced all the allegations of ineffective

assistance of counsel that defendant had included in his pro se petition, including specific

instances in which Kopec had, in the circuit court, failed to (1) object at trial, (2) file motions,

and (3) conduct investigations. On appeal, Kopec failed to (1) argue plain error for two issues

and (2) properly argue and brief an issue. The amended petition stated:

                “On the first day of trial, after the lunch break, the Defendant was

                told by his defense trial counsel that the prosecution offered a plea

                bargain to one count. The defense trial counsel told the Defendant

                that the prosecutor did not mention how many years. However, the

                defense trial counsel stated that the prosecutor could not offer less

                than the Judge would give. Based on Defendant’s prior

                conversations with his defense counsel, the Defendant understood

                this to mean 4 years DOC at 50% day for day good time.”

The petition argued that Kopec implicitly informed defendant not to take the plea deal because

the case was going well for defendant and the State “had prepared the victim for a loss.” Further,

the petition stated:

                “Defense trial counsel had told the Defendant at a pre trial meeting

                at the jail that considering the Defendant’s background, there was




                                                 3
                    no way the Judge was going to sentence the Defendant to more

                    than one count at the minimum four years at 50%.

                                                          ***

                              *** The Defendant ultimately received a sentence of 4

                    years on two counts, consecutive, at 85% time. This actual

                    sentence was therefore three times the sentence that defense trial

                    counsel told the Defendant pre trial he would receive if found

                    guilty.

                                                          ***

                              *** Had the Defendant been informed that the sentence

                    would be served at 85% time, the Defendant would have taken the

                    plea offer on one count.

                              *** Had the Defendant been informed that he would be

                    sentenced on two counts post trial, the Defendant would have

                    taken the plea offer on one count.”

     Attached to the petition was an affidavit of defendant. Defendant’s pro se petition was also

     attached as an affidavit.

¶6          The State filed a motion to dismiss arguing, inter alia, (1) defendant’s petition was

     untimely, (2) some of defendant’s claims were waived or barred by res judicata, (3) defendant’s

     claims of ineffective assistance of counsel were not adequately supported, and (4) defendant

     could not show that counsel was deficient or that he was prejudiced. A hearing was held on the

     motion to dismiss. The court issued a written order. The court denied the motion with respect to

     two of defendant’s allegations, stating that (1) defendant’s claim that his right to counsel of

                                                     4
     choice on appeal, if proven, would be structural error and (2) trial counsel’s strategy regarding

     the deoxyribonucleic acid (DNA) chain of custody was not capable of direct review as Kopec

     continued to represent defendant on appeal. However, the court granted the motion to dismiss as

     to every other allegation in the petition.

¶7          The petition proceeded to a third-stage hearing on the issues of “whether or not the

     defendant desire[d] to have his appellate counsel actually handle his appeal, and then depending

     on the outcome of that particular issue, whether or not the chain of custody was adequately

     addressed by counsel during the trial.” After the hearing, the court denied the postconviction

     petition, stating that the court could not conclude that defendant requested different counsel on

     appeal. The court further found that reasonable trial strategy could explain Kopec’s action or

     inaction regarding the DNA chain of custody.

¶8                                                ANALYSIS

¶9          On appeal, defendant raises two claims of unreasonable assistance of postconviction

     counsel. First, defendant argues that counsel failed “to shape into proper legal form [defendant’s]

     pro se claim that trial counsel was ineffective for representing him on appeal, despite the

     defendant’s request for the appointment of the public defender, and where counsel was placed in

     an irreconcilable conflict that adversely affected his performance on appeal.” Stated another way,

     defendant argues that postconviction counsel should have amended the petition to allege

     ineffective assistance of counsel based on a conflict of interest. Second, defendant argues that

     postconviction counsel failed to attach supporting evidence necessary for “defendant’s claim that

     trial counsel failed to properly advise him on the terms of a plea bargain and inaccurately advised

     him about his potential sentence,” nor did postconviction counsel explain why such evidence was

     not included.


                                                     5
¶ 10           Based on our supreme court’s opinion in People v. Lawton, 212 Ill. 2d 285 (2004), we

       find that postconviction counsel properly amended defendant’s petition to include all necessary

       claims of ineffective assistance of counsel. Further, postconviction counsel’s amended petition

       included an affidavit from defendant stating that the State did not include a term of years when

       presenting a plea offer to Kopec. Because of this and because the lack of an affidavit from the

       State or Kopec may have been trial strategy, we find that counsel’s supporting evidence was

       sufficient.

¶ 11           Though two of defendant’s claims reached the third stage of the postconviction process,

       defendant solely challenges the assistance given by his postconviction counsel at the second

       stage. During second-stage postconviction proceedings, the defendant bears the burden of

       making a substantial showing of a constitutional violation. People v. Schlosser, 2012 IL App

       (1st) 092523, ¶ 15. There is no constitutional right to the assistance of postconviction counsel.

       People v. Suarez, 224 Ill. 2d 37, 42 (2007). Instead, the right to counsel during postconviction

       proceedings is statutory under the Post-Conviction Hearing Act, and petitioners are only entitled

       to a reasonable level of assistance. Id.; 725 ILCS 5/122-1 et seq. (West 2012).

¶ 12           “Postconviction counsel is required only to investigate and properly present defendant’s

       claims.” People v. Russell, 2016 IL App (3d) 140386, ¶ 10. Rule 651(c) requires that appointed

       postconviction counsel make amendments to the petitioner’s pro se postconviction petition that

       are necessary for adequate presentation of the petitioner’s contentions, but counsel is not

       required to make amendments that would further a frivolous or nonmeritorious claim. Ill. S. Ct.

       R. 651(c) (eff. Feb. 6, 2013); People v. Turner, 187 Ill. 2d 406, 412 (1999); People v. Greer, 212

       Ill. 2d 192, 205 (2004). Postconviction counsel’s filing of a Rule 651(c) certificate gives rise to

       the presumption that the defendant received the required representation, but such a presumption


                                                       6
       may be rebutted by the record. Russell, 2016 IL App (3d) 140386, ¶ 10. “ ‘[A] defendant is not

       required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused

       prejudice.’ ” People v. Ross, 2015 IL App (3d) 130077, ¶ 15 (quoting People v. Nitz, 2011 IL

       App (2d) 100031, ¶ 18).

¶ 13                                           I. Conflict of Interest

¶ 14             Defendant argues that postconviction counsel was unreasonable for failing to allege that

       Kopec was ineffective based on a conflict of interest. In support of his position, defendant relies

       on Lawton, 212 Ill. 2d 285. The defendant in Lawton was declared a sexually dangerous person

       and appealed. Id. at 287. The attorney that had represented him at trial also represented him in

       his appeal. Id. at 292. The appellate court affirmed. Id. He subsequently filed a petition for relief

       from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

       (West 2002)), alleging, inter alia, ineffective assistance of counsel. Lawton, 212 Ill. 2d at 293.

       The circuit court granted the defendant’s petition, finding that he had not been provided effective

       assistance of counsel, and the State appealed. Id. at 294. The appellate court reversed, holding

       that a section 2-1401 petition was “not an appropriate forum for a defendant to raise claims

       regarding competency of counsel.” Id.

¶ 15             Our supreme court determined that a petition for relief from judgment was the correct

       place for the defendant to raise his ineffective assistance of counsel claim. Id. at 295. The court

       noted that “[p]roceedings under the Sexually Dangerous Persons Act are civil in nature” but that

       defendants subject to the act were entitled to effective assistance of counsel. Id. The court then

       stated:

                               “The right to effective assistance of counsel has no

                        meaning unless a defendant has some means to assert it. Where a


                                                         7
defendant in a proceeding under the Sexually Dangerous Persons

Act contends that he was denied effective assistance of counsel at

trial, he may raise that issue on direct appeal from the circuit

court’s judgment. [Citation.] When the defendant’s trial counsel

goes on to represent him on appeal, however, that avenue is likely

to be foreclosed. An attorney cannot be expected to argue his own

ineffectiveness. That is why, for example, trial counsel’s failure to

assert his own ineffective representation in a posttrial motion does

not waive the issue on appeal. [Citation.]

       That is the problem facing Lawton in the case before us

here. As we have indicated, the lawyer whose actions in the trial

court are the basis for Lawton’s claim of ineffective assistance of

counsel is the same lawyer who handled Lawton’s appeal on direct

review. To advance Lawton’s argument that he had mishandled the

trial proceedings would have required the lawyer to argue his own

incompetence on appeal. To avoid the criticism that he was

incompetent would have required that he compromise his

obligation as an attorney to represent Lawton zealously. The

lawyer thus faced an inherent conflict of interest.

       Defendants seeking to challenge the effectiveness of the

representation they received during their criminal trials have a

mechanism for avoiding this problem. If their trial counsel

continues to represent them on direct review and does not raise the


                                  8
                      issue of the effectiveness of the representation he provided, notions

                      of waiver will yield to considerations of fundamental fairness and

                      defendants will still be permitted to challenge trial counsel’s

                      effectiveness through proceedings under the Post-Conviction

                      Hearing Act.” Id. at 295-96.

       Because the case was civil in nature, however, the defendant could not file a postconviction

       petition in which to raise the ineffectiveness of counsel. Id. at 297. Therefore, the court

       determined that the defendant could have sought relief in a section 2-1401 petition, though the

       court ultimately rejected the defendant’s claim on the merits. Id. at 297, 302.

¶ 16           Ultimately, Lawton provides two takeaways (1) if an attorney represents a defendant in a

       criminal case during both the trial and the appeal, the defendant can raise ineffective assistance

       of counsel on postconviction and (2) if the same scenario is true in a case under the Sexually

       Dangerous Persons Act, the defendant can raise ineffective assistance in a section 2-1401

       petition.

¶ 17           Here, defendant attempts to expand Lawton into the proposition that when counsel

       represents a defendant both during trial and on appeal, postconviction counsel must amend the

       petition to include ineffective assistance of counsel based on a conflict of interest. Lawton does

       not state this, nor does defendant cite any other case with such a result. Lawton is clear that an

       attorney only labors under a conflict of interest if he is forced to argue his own ineffectiveness.

       This scenario is not present in the instant case as Kopec did not argue his own ineffectiveness on

       direct appeal. See id. at 296; see also People v. Sullivan, 2014 IL App (3d) 120312, ¶¶ 46-47.

       Moreover, Kopec was not required to argue his own ineffectiveness since defendant could raise

       the argument in his postconviction petition. Stated another way, representing a defendant both


                                                        9
       during trial and on appeal would only become a conflict of interest, in this context, if the attorney

       was forced to argue his ineffectiveness. As a defendant may always bring such a claim in his

       postconviction petition, an attorney will not be forced to make such an argument, and the conflict

       is avoided. In other words, there is no conflict that must be alleged simply because trial counsel

       continued to represent a defendant on appeal.

¶ 18          Here, postconviction counsel amended defendant’s pro se postconviction petition to

       include each claim of ineffective assistance defendant raised in his pro se petition, including the

       claims of ineffective assistance of appellate counsel. There was no conflict of interest to allege as

       Kopec did not argue his own effectiveness on direct appeal. Therefore, postconviction counsel

       sufficiently presented defendant’s claims of ineffective assistance. See Lawton, 212 Ill. 2d at

       295-96.

¶ 19                                               II. Affidavit

¶ 20          Defendant contends that postconviction counsel was unreasonable for failing to attach an

       affidavit from either the State or Kopec stating the terms of the plea offered.

¶ 21          Section 122 of the Post-Conviction Hearing Act states, “The petition shall have attached

       thereto affidavits, records, or other evidence supporting its allegations or shall state why the

       same are not attached.” 725 ILCS 5/122-2 (West 2014).

                      “The evidentiary affidavit attached to a postconviction petition

                      serves two purposes. First, it must contain a factual basis sufficient

                      to show the petition’s allegations are ‘capable of objective or

                      independent corroboration.’ [People v. Collins, 202 Ill. 2d 59, 67

                      (2002).] Second, it must ‘identify with reasonable certainty the

                      sources, character, and availability of the alleged evidence


                                                        10
                      supporting the petition’s allegations.’ [People v. Delton, 227 Ill. 2d

                      247, 254 (2008).]” People v. Allen, 2015 IL 113135, ¶ 32.

¶ 22          Postconviction counsel attached a supplemental affidavit of defendant, which was signed

       and notarized. Defendant’s affidavit states, in part:

                      “My trial defense counsel also told me that over the noon break

                      (after the morning testimony and before the afternoon resumption

                      of the trial) that the prosecutor had made a plea offer that I plead

                      guilty to one count. I asked my defense counsel how many years

                      and my defense counsel said that the prosecutor did not say how

                      many years on the one count.”

       Defendant explicitly states in the affidavit that there was not a term of years offered as part of the

       plea offer. “Absent a showing of available material for supporting affidavits, a failure to present

       affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d

       42, 46 (1970). Defendant has not shown that there were actually any terms to the plea offer. In

       fact, defendant’s affidavit appears to confirm there were no specific terms, with regard to years,

       attached to the offer. Moreover, even if we accept defendant’s contention that there was a term of

       years in the plea, counsel’s decision not to attach an affidavit of the State or Kopec may have

       been strategy as the term of imprisonment offered could have been more than the sentence

       defendant actually received. For these reasons, counsel was not unreasonable for failing to attach

       an affidavit of the State or Kopec.

¶ 23          In coming to this conclusion, we reject defendant’s contention that postconviction

       counsel could have raised the novel argument “that the defendant would have taken a plea to one

       count, regardless of the sentence, because of the sex offender registry requirements.”


                                                        11
       Postconviction counsel need only amend the claims raised by defendant in his pro se petition.

       People v. Garcia-Rocha, 2017 IL App (3d) 140754, ¶ 35; People v. Pendleton, 223 Ill. 2d 458,

       476 (2006) (“While postconviction counsel may conduct a broader examination of the record

       [citation], and may raise additional issues if he or she so chooses, there is no obligation to do so.”

       (Emphasis in original.)). Moreover, postconviction counsel has “no obligation to seek out or

       explore alternative bases for defendant’s claim.” People v. Vasquez, 356 Ill. App. 3d 420, 425

       (2005).

¶ 24                                             CONCLUSION

¶ 25             For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell

       County.

¶ 26             Affirmed.

¶ 27             JUSTICE MCDADE, concurring in part and dissenting in part.

¶ 28             The majority upholds the partial dismissal of defendant’s postconviction petition at the

       second stage, finding that postconviction counsel did not act unreasonably in (1) failing to allege

       ineffective assistance of appellate counsel (Kopec) based on a conflict of interest or (2) failing to

       attach an affidavit supporting defendant’s pro se claim that trial counsel (Kopec) incorrectly

       advised him on the terms of his potential plea bargain and sentence. While I concur with the

       majority’s holding as to the first issue, I dissent from the majority’s finding as to the second

       issue. I believe postconviction counsel’s failure to attach an affidavit from the prosecutor or

       Kopec describing the terms of the potential plea agreement constitutes unreasonable assistance.

       Section 122-2 of the Post-Conviction Hearing Act expressly provides that “[t]he petition shall

       have attached thereto affidavits, records, or other evidence supporting its allegations or shall




                                                        12
       state why the same are not attached.” (Emphasis added.) 725 ILCS 5/122-2 (West 2012).

       Postconviction counsel did not comply with either mandate.

¶ 29          The importance of trial counsel’s effectiveness cannot be overstated, particularly in

       criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). On appeal, all of the applicable

       standards of review favor upholding the verdict. The likelihood of correcting constitutional

       issues on postconviction review is even lower than on direct appeal. Although the procedural

       scheme in such actions is fair, its implementation is narrowly restricted. At the second stage,

       postconviction counsel is supposed to review the proceedings and discuss the contentions of

       error with the defendant, but counsel is not required to make any arguments or raise any issues

       that the defendant did not raise in his pro se postconviction petition. Russell, 2016 IL App (3d)

       140386, ¶ 10. In other words, postconviction counsel need only advance those contentions

       actually raised by a person who is ignorant of the letter and nuances of the law in general and the

       postconviction statute in particular. Counsel is, however, required to shape all the claims the

       defendant has made into proper form. Id. As postconviction counsel is not required to raise new

       issues, it is all the more important that counsel properly shape those defendant has raised.

¶ 30          In order to adequately allege ineffective assistance of counsel for incompetency during

       plea negotiations, “a defendant must show the outcome of the plea process would have been

       different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). Stated another

       way, defendant’s postconviction petition had to show that defendant was prejudiced by Kopec’s

       incompetency. Proof of such prejudice cannot be based on mere conjecture or speculation as to

       the outcome. People v. Palmer, 162 Ill. 2d 465, 481 (1994). Further, as the majority states (supra

       ¶ 22), the Post-Conviction Hearing Act requires that a postconviction petition “have attached




                                                       13
       thereto affidavits, records, or other evidence supporting its allegations or *** state why the same

       are not attached.” 725 ILCS 5/122-2 (West 2014).

¶ 31          Without an affidavit or other evidence stating the terms of the plea deal (or possibly

       showing this was just an opening offer to negotiate which counsel discouraged), or a statement

       from postconviction counsel regarding why such support was lacking, any prejudice to defendant

       was speculative and therefore fatal to his petition. Postconviction counsel had a responsibility to

       amend the petition in such a way that the prejudice to defendant during the plea process was

       based on actual evidence, not just conjecture. Palmer, 162 Ill. 2d at 481. As counsel did not do

       so, his performance was unreasonable.

¶ 32          Finally, the majority states, “Moreover, even if we accept defendant’s contention that

       there was a term of years in the plea, counsel’s decision not to attach an affidavit of the State or

       Kopec may have been strategy as the term of imprisonment offered could have been more than

       the sentence defendant actually received.” (Emphasis added.) Supra ¶ 22. I am not aware of any

       case law, nor does the majority cite any, that permits a gloss of “strategy” to excuse

       postconviction counsel’s failure to comply with his statutorily mandated duty to support a

       defendant’s claim or explain why he was unable to do so. Instead, a court’s deference to an

       attorney’s “strategy” is restricted to the context of representation at trial. In contrast,

       postconviction counsel’s discretionary decisions are limited to two choices: (1) attach supporting

       affidavits, records, or other evidence or (2) explain the absence of such documents. 725 ILCS

       5/122-2 (West 2012). There is no “strategy” or excuse justifying an attorney’s decision to do

       neither.




                                                       14
¶ 33          Accordingly, I would reverse the dismissal of defendant’s claim that he received

       ineffective assistance of counsel during plea negotiations and remand for third stage

       postconviction proceedings.




                                                 15
