People v. Suarez

Docket No. 100499.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWIN
SUAREZ, Appellant.

Opinion filed January 19, 2007.

JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
and Karmeier concurred in the judgment and opinion.
Justice Burke took no part in the decision.

OPINION

Following a jury trial in December 1987 before the circuit court of
Cook County, defendant Edwin Suarez was convicted of first degree
murder and three counts of attempt (first degree murder). The circuit
court imposed a 40-year prison sentence for the murder conviction,
concurrent sentences of 15 years’ imprisonment on two of the three
attempt (first degree murder) counts, and a 15-year sentence on the
third count, to be served consecutively to the 40-year sentence.
Defendant’s convictions and sentences were affirmed on appeal.
People v. Suarez, 238 Ill. App. 3d 110 (1991). In November 1993,
private counsel filed a postconviction petition on defendant’s behalf,
alleging ineffective assistance of trial counsel. The circuit court
granted the State’s motion to dismiss the petition as untimely filed.
This decision was affirmed by the appellate court. People v. Suarez,
No. 1–94–4391 (1995) (unpublished order under Supreme Court Rule
23).
In November 2000, defendant filed a pro se petition, in which he
alleged that the statute under which he was sentenced violated the rule
of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.
Ct. 2348 (2000). The petition proceeded to second-stage review and
the circuit court appointed counsel for defendant. Counsel filed a
supplemental petition. That petition was dismissed on the State’s
motion. Counsel did not file a certificate under Supreme Court Rule
651(c) (134 Ill. 2d R. 651(c)). The appellate court affirmed. No.
1–04–0696 (unpublished order under Supreme Court Rule 23). We
granted defendant leave to appeal. 177 Ill. 2d R. 315.

BACKGROUND
Defendant and a codefendant were tried together before separate
juries. The codefendant’s jury convicted him of first degree murder
and acquitted him of all attempt charges. The codefendant received a
40-year prison sentence.
Defendant’s 15-year consecutive sentence on one count of attempt
(first degree murder) was imposed under section 5–8–4(b) of the
Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par.
1005–8–4(b), now 730 ILCS 5/5–8–4(b) (West 2004)). At the time
defendant committed the offenses of which he was convicted, that
section prohibited the circuit court from imposing a consecutive
sentence unless, having regard to the nature and circumstances of the
offense and the history and character of the defendant, the court was
of the opinion that such a term is required to protect the public from
further criminal conduct by the defendant. The circuit court made the
necessary finding at defendant’s sentencing hearing and imposed the
consecutive sentence. In his petition, defendant argued that because
the sentencing statute permitted the judge to make the finding, rather
than a jury, the statute was unconstitutional under Apprendi and his
consecutive sentence was therefore void.
The pro se petition filed by defendant in November 2000 was
brought under section 2–1401 of the Code of Civil Procedure (735
ILCS 5/2–1401 (West 2000)). The circuit court treated the petition as

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a postconviction petition and appointed counsel for defendant.
Counsel filed a supplemental petition in September 2002. That petition
realleged defendant’s Apprendi claim and added a second claim, i.e.,
that defendant’s three convictions for attempt (first degree murder)
should be vacated because they were inconsistent with the acquittal of
his codefendant on the same charges. The circuit court granted the
State’s motion to dismiss the petition. The appellate court affirmed.
Defendant’s only argument in the appellate court was that the cause
must be remanded because postconviction counsel failed to file a
certificate of compliance with Rule 651(c) and the record failed to
demonstrate compliance. The appellate court concluded that the
failure to comply was harmless error because defendant’s
postconviction claims were without merit as a matter of law. Thus, the
court reasoned, no amount of reviewing the record, communicating
with defendant, or amending the pro se petition would have prevented
the rejection of defendant’s claims.

ANALYSIS
I
Because the question presented in this appeal concerns the proper
interpretation of a supreme court rule, our review is de novo. People
v. Henderson, 217 Ill. 2d 449, 458 (2005). In addition, when a
postconviction petition is dismissed without an evidentiary hearing,
the standard of review is de novo. People v. Coleman, 183 Ill. 2d 366,
388-89 (1998).

II
We first address the State’s argument that the record in this case
demonstrates that postconviction counsel fulfilled the duties mandated
by Rule 651(c), despite the fact that she did not file a certificate of
compliance.
There is no constitutional right to the assistance of counsel in
postconviction proceedings; the right to counsel is wholly statutory
(see 725 ILCS 5/122-4 (West 2000)), and petitioners are only entitled
to the level of assistance provided for by the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122–1 et seq. (West 2000)); People v. Turner,
187 Ill. 2d 406, 410 (1999). The Act provides for a reasonable level

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of assistance. People v. Flores, 153 Ill. 2d 264, 276 (1992). To ensure
that postconviction petitioners receive this level of assistance, Rule
651(c) imposes specific duties on postconviction counsel. The rule
provides as follows:
“Upon the timely filing of a notice of appeal in a
post-conviction proceeding, if the trial court determines that
the petitioner is indigent, it shall order that a transcript of the
record of the post-conviction proceedings, including a
transcript of the evidence, if any, be prepared and filed with
the clerk of the court to which the appeal is taken and shall
appoint counsel on appeal, both without cost to the petitioner.
The record filed in that court shall contain a showing, which
may be made by the certificate of petitioner’s attorney, that
the attorney has consulted with petitioner either by mail or in
person to ascertain his contentions of deprivation of
constitutional right, has examined the record of the
proceedings at the trial, and has made any amendments to the
petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).
Defendant argues the record does not demonstrate that counsel
consulted with defendant to ascertain his contentions of constitutional
deprivation. The State argues that by considering the supplemental
petition together with counsel’s obligations under Supreme Court
Rule 137 (155 Ill. 2d R. 137), it may be inferred that counsel fulfilled
the consultation requirement of the rule. Rule 137 requires attorneys
to certify that they have made “reasonable inquiry” into the basis for
pleadings signed by them and provides sanctions for violation of the
rule. According to the State, this duty, coupled with the fact that
postconviction counsel added a new claim of inconsistent verdicts in
the supplemental petition, raises a presumption that counsel did, in
fact, consult with defendant. The State further asserts that the burden
should be on defendant to rebut this presumption. In support, the
State cites People v. Greer, 212 Ill. 2d 192 (2004). In Greer, the issue
was whether postconviction counsel may seek to withdraw as counsel
due to a petition’s lack of merit. This court determined that such a
procedure was permissible, noting that under Rule 137 counsel could
not ethically pursue claims that were frivolous and patently without
merit. Greer, 212 Ill. 2d at 209.

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 As applied to the instant case, the State argues that postconviction
counsel could not have fulfilled the “reasonable inquiry” requirement
of Rule 137 and prepared a supplemental petition that was well
grounded in fact without consulting with defendant. However, the
supplemental petition simply realleged defendant’s Apprendi claim in
more detail and made legal arguments that were lacking in the pro se
petition. In support of the new claim of inconsistent verdicts, counsel
made only a general allegation that the evidence before the two juries
concerning the attempted murder charges was the same. The
supplemental petition based this allegation on the appellate court
opinion that affirmed defendant’s convictions. Nothing in the
supplemental petition suggests that counsel consulted with defendant
in preparing the petition. Further, Greer does not support the State’s
argument that a presumption of consultation should arise from the
mere amendment of a pro se postconviction petition. Greer did not
raise any issue of compliance with Rule 651(c), nor did it discuss that
rule in conjunction with Rule 137. Accordingly, we reject the State’s
argument that compliance was shown in this case and that any
presumption of compliance with the consultation requirement is raised
by the amendment of the pro se petition or the filing of a supplemental
petition.

III
We now turn to defendant’s argument that the appellate court
erred in finding that postconviction counsel’s failure to comply with
Rule 651(c) constituted harmless error.
Within 90 days of the filing and docketing of a pro se petition for
postconviction relief, the circuit court is to examine the petition. If the
court determines that the petition is frivolous or is patently without
merit, it shall dismiss the petition. If the petition is not dismissed
within the 90-day period, the circuit court must order the petition
docketed for further consideration. 725 ILCS 5/122–2.1(a), (b) (West
2000). The circuit court may thereafter appoint counsel if the
petitioner requests counsel and is indigent. 725 ILCS 5/122–4 (West
2000). Within 30 days of the docketing of the petition under section
122–2.1(b) of the Act, the State must file an answer to the petition or
move to dismiss it. 725 ILCS 5/122–5 (West 2000).

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 At the time defendant’s pro se postconviction petition was filed,
this court had not determined whether Apprendi applied in
postconviction proceedings. Accordingly, defendant’s petition stated
the gist of a constitutional claim and qualified for second-stage review
and the appointment of counsel. While defendant’s postconviction
proceedings were pending, however, this court filed its decision in
People v. De La Paz, 204 Ill. 2d 426 (2003), holding that Apprendi
does not apply in collateral proceedings. In the meantime, however,
postconviction counsel filed a supplemental petition that realleged
defendant’s Apprendi claim and added another claim regarding
inconsistent verdicts. The State argues that application of harmless
error review to this case is appropriate because counsel could do
nothing to shape defendant’s noncognizable Apprendi claim into a
meritorious issue. Accordingly, it would be a waste of judicial
resources to remand this cause for compliance with Rule 651(c).
Defendant, on the other hand, argues that this court should not depart
from its precedent that has insisted on compliance with Rule 651(c),
regardless of the merits of the pro se petition.
In affirming the dismissal of defendant’s petition on the basis of
harmless error, the appellate court followed the reasoning of People
v. Sargent, 357 Ill. App. 3d 946 (2005), a First District case. The
postconviction petitioner in Sargent raised an Apprendi claim in a pro
se petition filed in 2001. The petition proceeded to second-stage
review and counsel was appointed. Subsequently, the circuit court
dismissed the petition in light of this court’s decision in De La Paz.
The appellate court affirmed the dismissal, finding postconviction
counsel’s failure to comply with the requirements of Rule 651(c) to be
harmless error. The court noted that the question presented was one
purely of law. According to the court, “no amount of scouring the
record, nor multiple meetings with petitioner, nor any amendment of
the petition, could have saved the Apprendi claim from ultimate
dismissal.” Sargent, 357 Ill. App. 3d at 953. A case from the Third
District has also affirmed the dismissal of a postconviction petition on
the basis of harmless error where counsel failed to comply with Rule
651(c). In People v. Oakes, 355 Ill. App. 3d 748 (2005), as in Sargent
and the instant case, the defendant filed a pro se petition whose sole
claim was that his sentence violated the rule of Apprendi. The record
contained no showing that appointed counsel had consulted with the

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defendant; despite this, the appellate court found the error to be
harmless. Oakes, 355 Ill. App. 3d at 750.
As this court has noted, in granting a right to counsel for pro se
petitioners whose petitions are not dismissed at the first stage of
postconviction proceedings, the legislature recognized that most
postconviction petitions would be filed by pro se prisoners who lacked
the assistance of counsel in framing their petitions. People v.
Slaughter, 39 Ill. 2d 278, 285 (1968). The duties imposed on
postconviction counsel serve to ensure that the complaints of a
prisoner are adequately presented. To that end, the statute envisioned
that counsel would consult with the prisoner either by mail or in
person, ascertain his alleged grievances, examine the record of
proceedings at the trial, and amend the pro se petition, if necessary.
“The statute cannot 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.” Slaughter, 39 Ill. 2d at 285. Rule 651(c)
was promulgated by this court to implement its decision in Slaughter,
as well as its decisions in People v. Jones, 43 Ill. 2d 160 (1969)
(failure to consult is a failure to discharge an elementary responsibility
of representation), and People v. Garrison, 43 Ill. 2d 121 (1969)
(holding that a failure to confer does not meet even a minimal
professional standard and necessitates reversal). 134 Ill. 2d R. 651(c),
Committee Comments.
This court has consistently held that remand is required where
postconviction counsel failed to fulfill the duties of consultation,
examining the record, and amendment of the pro se petition,
regardless of whether the claims raised in the petition had merit. See,
e.g., People v. Wales, 46 Ill. 2d 79 (1970); People v. Barnes, 40 Ill.
2d 383 (1968); People v. Ford, 40 Ill. 2d 440 (1968); People v.
Wilson, 40 Ill. 2d 378 (1968); People v. Craig, 40 Ill. 2d 466 (1968);
People v. Tyner, 40 Ill. 2d 1 (1968). In Jones, this court rejected the
State’s argument that the circuit court properly dismissed the petition
because its allegations were insufficient to raise a constitutional issue
and it could not be made sufficient through amendment. The court
noted its prior holdings that it is error to dismiss a postconviction
petition on the pleadings where there has been inadequate
representation by counsel:

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 “We have held it to be error to dismiss a post-conviction
petition on the pleadings, as occurred here, where there has
been inadequate representation by counsel, though the [p]ro
se petition itself fails to present a substantial constitutional
claim.” Jones, 43 Ill. 2d at 162.
In People v. Brown, 52 Ill. 2d 227 (1972), the record failed to
show that postconviction counsel had examined the transcript of
proceedings. The State argued on appeal that an examination of the
transcript would not have benefitted the defendant because all errors
found therein were either res judicata or waived. This court noted
that fundamental fairness may require the review of waived issues. In
addition, the court noted:
“[T]he purpose underlying Rule 651(c) is not merely formal.
It is to ensure that all indigents are provided proper
representation when presenting claims of constitutional
deprivation under the Post-Conviction Hearing Act.
[Citation.] The fulfillment of this design would not be
encouraged were we to ignore the rule’s nonobservance in
those cases appealed to this court.” Brown, 52 Ill. 2d at 230.
More recent decisions have not departed from this principle. In
People v. Johnson, 154 Ill. 2d 227 (1993), this court refused to
speculate whether the circuit court might have dismissed the
defendant’s postconviction petition on grounds other than the failure
to attach supporting affidavits, as there was no evidence in the record
that the circuit court did dismiss the petition on such grounds:
“The trial court here concluded that the allegations in the
petition relating to counsel’s performance at trial did not
warrant an evidentiary hearing. It is entirely possible that the
trial court would have reached this same conclusion even if
counsel had contacted the witnesses named in the petition and
attached affidavits in support of the post-conviction claims.
We cannot simply presume, however, that the trial court
would have dismissed the petition without an evidentiary
hearing if counsel had adequately performed his duties under
Rule 651(c). It is the duty of the trial court, and not this court,
to determine on the basis of a complete record whether the
post-conviction claims require an evidentiary hearing.”
Johnson, 154 Ill. 2d at 246.

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 Again, in People v. Turner, 187 Ill. 2d 406 (1999), this court
rejected the State’s argument that the postconviction petitioner was
not prejudiced by his counsel’s deficiencies because the claims in the
pro se petition lacked merit. We held that, “[o]n a more fundamental
level, it is improper to affirm the dismissal of a post-conviction
petition when this court finds that post-conviction counsel’s
performance was so deficient that it amounts to virtually no
representation at all.” Turner, 187 Ill. 2d at 415-16. Counsel in that
case had not consulted with petitioner, examined pertinent portions of
the record, or amended the pro se petition. This court rejected the
State’s harmless error argument, refusing to speculate on whether the
circuit court would have dismissed the petition without an evidentiary
hearing had counsel adequately performed his duties under Rule
651(c). Turner, 187 Ill. 2d at 416.
Our recent decision in People v. Lander, 215 Ill. 2d 577 (2005),
illustrates the importance of compliance with the requirements of Rule
651(c). In Lander, the defendant filed a pro se postconviction petition,
alleging ineffective assistance of counsel. The petition advanced to the
second stage and counsel was appointed. The circuit court dismissed
the petition as untimely. Counsel did not file a Rule 651(c) certificate
and the record did not show compliance. The appellate court held that
no showing of compliance was required because counsel had no
obligation to consult with the defendant regarding his claims of
constitutional deprivation until the time bar was overcome. This court
disagreed, noting that the State had the ability to waive the time
requirement if the petition demonstrates a substantial deprivation of
the defendant’s constitutional rights. Thus, postconviction counsel
must fulfill the duties imposed by the rule to present the defendant’s
constitutional claims. Lander, 215 Ill. 2d at 585.
The State would have us overrule decades of precedent to affirm
the appellate court. This necessarily implicates the principle of stare
decisis, which we recently discussed in People v. Sharpe, 216 Ill. 2d
481 (2005):
“Overruling a decision of this court, let alone an entire
body of case law, necessarily implicates stare decisis
principles. With regard to stare decisis, this court recently
observed the following:
‘The doctrine of stare decisis “expresses the policy of

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 the courts to stand by precedents and not to disturb settled
points.” Neff v. George, 364 Ill. 306, 308-09 (1936),
overruled on other grounds by Tuthill v. Rendelman, 387
Ill. 321 (1944). This doctrine “is the means by which
courts ensure that the law will not merely change
erratically, but will develop in a principled and intelligible
fashion.” Chicago Bar Ass’n v. Illinois State Board of
Elections, 161 Ill. 2d 502, 510 (1994). Stare decisis
enables both the people and the bar of this state “to rely
upon [this court’s] decisions with assurance that they will
not be lightly overruled.” Moehle v. Chrysler Motors
Corp., 93 Ill. 2d 299, 304 (1982).
To be sure, stare decisis is not an inexorable
command. Chicago Bar Ass’n, 161 Ill. 2d at 510; Payne
v. Tennessee, 501 U.S. 808, 842, 115 L. Ed. 2d 720, 746,
111 S. Ct. 2597, 2617 (1991) (Souter, J., concurring).
However, we have consistently held that any departure
from stare decisis must be specially justified (Chicago Bar
Ass’n, 161 Ill. 2d at 510) and that prior decisions should
not be overruled absent “good cause” (Moehle, 93 Ill. 2d
at 304; Heimgaertner v. Benjamin Electric Manufacturing
Co., 6 Ill. 2d 152, 166-67 (1955)) or “compelling reasons”
(Moehle, 93 Ill. 2d at 304; People v. Robinson, 187 Ill. 2d
461, 463-64 (1999)). *** In sum, “when a rule of law has
once been settled, contravening no statute or
constitutional principle, such rule ought to be followed
unless it can be shown that serious detriment is thereby
likely to arise prejudicial to public interests.” Maki, 40 Ill.
2d at 196; see also Heidenreich v. Bremner, 260 Ill. 439,
450-51 (1913).’ Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82
(2004).” Sharpe, 216 Ill. 2d at 519-20.
In attempting to make its case for the overruling of our precedent
regarding compliance with Rule 651(c), the State draws a distinction
between prior cases where we have rejected its arguments advocating
a harmless error analysis and the instant case. In those past cases, the
State says, the claims raised were potentially meritorious; in contrast,
defendant’s Apprendi claim, like the claims raised in the Sargent and
Oakes cases, is not cognizable and nothing counsel could do would

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make the claim meritorious. However, this case does not present the
clear-cut situation the State describes. Postconviction counsel filed a
supplemental petition and added a claim concerning alleged
inconsistent verdicts. The appellate court found that the claim was
meritless based upon our decision in People v. Jones, 207 Ill. 2d 122
(2003). That case concerned allegedly inconsistent verdicts against the
same defendant. This court held there that a defendant may no longer
challenge a conviction on the sole basis that it is inconsistent with that
same defendant’s acquittal on another charge. Jones, 207 Ill. 2d at
134-35. The issue raised by postconviction counsel in the amended
petition, however, concerned alleged inconsistent verdicts as between
defendant and his codefendant. Curiously, neither defendant nor the
State makes any argument in their respective briefs concerning the
potential viability of this issue. We express no opinion on the viability
of this claim; we raise the matter only to show that the State’s
assertion that this case concerns only the pro se Apprendi claim is
inaccurate.
Our analysis, however, does not depend upon whether the pro se
or supplemental petitions in this case did or did not contain potentially
meritorious issues. Our Rule 651(c) analysis has been driven, not by
whether a particular defendant’s claim is potentially meritorious, but
by the conviction that where postconviction counsel does not
adequately complete the duties mandated by the rule, the limited right
to counsel conferred by the Act cannot be fully realized. See Brown,
52 Ill. 2d at 230 (“[T]he purpose underlying Rule 651(c) is not merely
formal. It is to ensure that all indigents are provided proper
representation when presenting claims of constitutional deprivation
under the Post-Conviction Hearing Act. [Citation.] The fulfillment of
this design would not be encouraged were we to ignore the rule’s
nonobservance in those cases appealed to this court”); Jones, 43 Ill.
2d at 162 (failure to consult with postconviction petitioner is a failure
to discharge an elementary responsibility of representation). We have
consistently declined the State’s invitation to excuse noncompliance
with the rule on the basis of harmless error. We have refused to
address questions that are properly determined in the first instance by
the circuit court. The State presents no new persuasive arguments that
would justify departing from our prior case law. Accordingly, we
decline to hold that noncompliance with Rule 651(c) may be excused

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on the basis of harmless error.

CONCLUSION
For the reasons stated, we hold that the appellate court erred in
applying a harmless error analysis where no compliance with Rule
651(c) was shown. Such compliance must be shown regardless of
whether the claims made in the pro se or amended petition are viable.
Accordingly, we reverse the judgment of the appellate court and
remand this cause to the circuit court for the purpose of
demonstrating compliance with Rule 651(c). We overrule the
appellate court decisions in Sargent and Oakes to the extent those
cases are in conflict with our holding.

Appellate court judgment reversed;
cause remanded.

JUSTICE BURKE took no part in the consideration or decision
of this case.

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