People v. Kirkpatrick

ILLINOIS OFFICIAL REPORTS
Appellate Court

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

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

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

Filed April 17, 2012

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

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

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

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

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

OPINION

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

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

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

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

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

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

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

¶ 30 Affirmed.

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