People v. Perry

2017 IL App (1st) 150587

FOURTH DIVISION
December 21, 2017

No. 1-15-0587

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 05 CR 11283
)
CORDELL PERRY, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.

OPINION

¶1 Defendant Cordell Perry appeals the trial court’s second stage dismissal of his successive

petition for postconviction relief, arguing that his postconviction counsel rendered unreasonable

assistance by withdrawing a supporting affidavit and tacitly agreeing to dismissal of his petition

and that the $105 costs assessment must be vacated.

¶2 Following a jury trial, defendant was convicted of first degree murder in connection with

the shooting of the victim, Denzel Calhoun, on April 1, 2005, at Magnum Motors at Cicero and

Wabansia Avenues in Chicago. Defendant was sentenced to a term of 65 years in prison, which

included a mandatory enhancement for discharging a firearm.

¶3 At trial, Latavia Hayden testified that on April 1, 2005, she was with her boyfriend,

Calhoun, at Magnum Motors because Calhoun was selling his car and buying a new one. While

Calhoun filled out paperwork, Hayden stepped onto the balcony to smoke a cigarette and noticed

defendant standing on the corner. Hayden and Calhoun left the office to transfer Calhoun’s
No. 1-15-0587

belongings from his old car to his new one. As Calhoun walked between two SUVs, shots were

fired, and Calhoun fell to the ground. Defendant stood in one spot as he fired one shot to

Calhoun’s head and three or four shots at Calhoun’s body.

¶4 Hayden identified defendant as the shooter by his nickname, Bushwick, to police that

afternoon. She subsequently identified defendant in a photo array, a lineup, and in court. Hayden

admitted that she told her friend, Keisha Reese, that she did not see the shooter’s face. Hayden

testified that she said that to Reese because Reese would discuss their conversation with other

people. Hayden also testified that she knew a man named Vernon Holman from the

neighborhood, but she denied seeing him at the car lot. The trial court sustained the State’s

objection to questions regarding any prior relationship Hayden may have had with Holman.

¶5 Holman testified that he knew Hayden and defendant, and that he sold drugs near

Magnum Motors. On April 1, 2005, while cutting through the car lot, he saw Hayden talking to a

man who looked like Calhoun, whom he had not met. As Holman passed by, he noticed

defendant, who was wearing a coat and a black hoodie, standing alone between two vans on the

lot. As Holman walked toward Wabansia Avenue, he heard three or four shots, at which point he

ran home. Holman had two prior felony convictions for murder and possession of a controlled

substance with intent to deliver. On April 2, 2005, Holman was arrested on a drug charge and

initially denied knowing about the Calhoun shooting. Holman gave information to the police

about the shooting several days later. Holman also had a pending misdemeanor charge. He

testified that the State had not promised him anything for his testimony. An assistant public

defender testified that on May 11, 2007, Holman told her that he had not seen defendant in the

car lot on April 1, 2005, and was afraid of being charged with perjury.

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¶6 Boykin Gradford testified that he and his wife were driving on Cicero Avenue when he

heard shots. Gradford saw a short, stocky African-American man wearing a black hoodie and a

white “do-rag” standing behind an SUV on the lot, with his arm outstretched and a gun in his

hand. Gradford also saw the victim standing between two parked cars, approximately three to

four feet away from the shooter. He saw the victim fall to the ground and did not recall any shots

fired thereafter. On April 7, 2005, Gradford viewed a lineup and thought defendant looked like

the shooter but was not 100% certain. The viewing was recorded by police as a “negative

lineup.” Officer Robert Bullock testified that his case report did not reflect Gradford saying he

saw a man with a gun. Detective Stanley Colon testified that when he interviewed Gradford on

April 1, 2005, Gradford did not mention seeing a gun fired or someone running with a gun.

¶7 After police arrested defendant on April 6, Detective Michael Barz interviewed him.

Detective Barz testified that defendant admitted he was at the scene of the shooting, but he

denied seeing who fired the shots. Defendant further stated that he recognized Calhoun as the

man who killed his friend, Anderson Thomas, also known as “Shug.” Defendant had a tattoo on

his arm that read “RIP Shug.”

¶8 A certified copy of Calhoun’s 1993 murder conviction was entered into evidence.

¶9 The jury found defendant guilty of first degree murder, and the court sentenced him to 65

years in prison. On direct appeal, defendant argued that the trial court excessively restricted his

attempts to cross-examine the State’s witnesses and present a theory of defense, the trial court

erred in refusing defense counsel’s request for a jury instruction on the meaning of the

reasonable doubt standard, and the trial court erred in refusing defense counsel’s request for the

jury to be given an addict instruction regarding Holman. This court affirmed defendant’s

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conviction and sentence on direct appeal. People v. Perry, No. 1-07-2761 (2009) (unpublished

order under Supreme Court Rule 23).

¶ 10 In July 2010, defendant filed his pro se postconviction petition, raising several allegations

of ineffective assistance of trial counsel. Specifically, the petition alleged (1) the failure to

investigate and call several witnesses, including forensic witnesses, witnesses who would have

testified that Hayden had been romantically involved with defendant’s brother, which ended

when defendant exposed Hayden’s infidelity, and that Hayden was romantically involved with

Holman at the time of Calhoun’s murder, and a witness who witnessed Holman admitted to

committing the murder, (2) trial counsel refused to allow defendant to testify at trial and coerced

him to waive his right to testify, (3) trial counsel presented a defense theory he knew to be false,

and (4) cumulative error based on these allegations. Defendant attached four affidavits, one from

himself and three from potential witnesses, but none were notarized. The trial court summarily

dismissed defendant’s petition in September 2010. Defendant appealed, and this court affirmed

the dismissal. People v. Perry, 2012 IL App (1st) 103225-U.

¶ 11 In April 2013, defendant filed his pro se successive postconviction petition asserting a

claim of actual innocence. In support of his petition, defendant attached an affidavit purportedly

from Hayden. In the affidavit, Hayden averred that she did not see who shot Calhoun. She

identified defendant “after pressure” from the police and the assistant State’s Attorney (ASA).

She was given defendant’s name from detectives. Hayden stated that prior to defendant’s trial,

she was advised by the ASA with the details of her testimony, including that she was not forced

to identify defendant. She further averred that she was now willing to testify that she did not see

defendant shoot Calhoun and she did not see who killed Calhoun. She “falsely testified and

identified [defendant] at his trial, because [she] had already lied in [her] statement and [she]

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feared prosecution.” She stated that she was not forced or induced to give this statement. The

affidavit was signed and notarized and included a photocopy of Hayden’s state identification

card.

¶ 12 In June 2013, the trial court docketed defendant’s successive petition. The public

defender was appointed to represent defendant. In March 2014, defendant’s public defender filed

her Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) certificate, stating that she had spoken

with defendant, had examined the proceedings and trial record, and had not amended defendant’s

petition. In June 2014, at a status hearing, the prosecutor stated that she had conducted an

investigation and had related the results of the investigation to defendant’s postconviction

counsel to review. In August 2014, postconviction counsel answered ready for a third stage

hearing and asked for a status date to set the hearing.

¶ 13 In September 2014, the State filed its answer to defendant’s postconviction petition. In its

answer, the State agreed that defendant had “met the burden required to proceed to a stage three

post conviction hearing.” Also in September 2014, postconviction counsel filed a motion to

disqualify the assigned ASA. The motion asserted that counsel received a written investigative

report prepared by an ASA investigator. The written report noted that Hayden stated in an

interview with the ASA that Hayden did not sign the affidavit and her identification had been

stolen. The ASA also gave counsel a DVD of an interview with Hayden and the ASA recorded in

June 2014. On information and belief, the video was recorded by the ASA investigator. Hayden

stated in the video interview that her identification was lost. Counsel stated that based on the

investigation, the ASA’s testimony for impeachment purposes “may be vital,” and the ASA was

potential witness at the evidentiary hearing. The trial court denied counsel’s motion following a

hearing.

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¶ 14 In October 2014, the parties appeared for the evidentiary hearing. Counsel waived

defendant’s appearance and asked for a date. She stated that she “may have made some mistakes

that [would] cause this to come back on a remand, so I’m asking for date.” When asked by the

trial court what she meant, counsel responded, “It means that I need to, I talked to my supervisor

on the phone and he raised some issues, so I don’t want to go through the evidentiary hearing

an[d] have it come back on appeal.”

¶ 15 In December 2014, counsel filed a motion to withdraw Hayden’s affidavit “after much

investigation” and to substitute an affidavit from defendant. Defendant’s affidavit simply stated

his date of birth, current address in prison, a statement that “I am innocent of all charges and I

still maintain my innocence,” and that this affidavit was attached to and incorporated by

reference to his postconviction petition.

¶ 16 At the hearing on the motion, the ASA asserted that defendant’s affidavit cannot meet the

burden to set forth actual innocence and orally moved to dismiss defendant’s petition.

Postconviction counsel responded that she would waive notice and had no argument. The court

stated it needed to take the matter under advisement because the court had not had a situation

like this before and wanted to look into it.

¶ 17 At a status hearing in January 2015, postconviction counsel informed the trial court that

she needed to file an amended Rule 651(c) certificate. She stated that she had received a letter

from defendant. She said that defendant was “under the misapprehension of—regarding me

withdrawing the affidavit. My position still stands. I’m just asking, so this doesn’t come back on

an ineffective assistance of counsel.” The amended Rule 651(c) certificate stated:

“I have consulted with Petitioner, Cordell Perry, by phone,

mail, electronic mean or in person to ascertain his contentions of

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deprivation of constitutional rights; I have examined the record of

the proceedings at the trial, Petitioner’s post-conviction claims and

investigated the Affidavit attached to the pro se Petition; I have

attached a new Affidavit to the pro se Petition but I have made no

amendment to the pro se Petition previously filed, as the pro se

Petition is sufficient for the adequate presentation of Petitioner’s

contentions.”

¶ 18 At the next status hearing in January 2015, postconviction counsel informed the trial

court as follows.

“The reason the case passed the first stage was due to the affidavit.

And the affidavit, according to my own investigations, and with

the State’s investigations, as an officer of the Court, I cannot

proceed with the affidavit.”

Counsel indicated that defendant “does not agree” with her, but “as an officer of the Court, I

stand by my decision.” The trial court subsequently issued a written order dismissing defendant’s

postconviction petition because the petition with defendant’s “self-serving affidavit” was

“frivolous and completely without merit.” The court then assessed $105 in filing fees, $90 for

filing the petition, and $15 for mailing fees.

¶ 19 This appeal followed.

¶ 20 On appeal, defendant argues that his postconviction counsel rendered unreasonable

assistance by withdrawing the affidavit purportedly by Hayden over defendant’s objection and

tacitly agreeing to the dismissal of his petition.

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¶ 21 The Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-8

(West 2012)) provides a tool by which those under criminal sentence in this state can assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2012); People v.

Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to constitutional

deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. “A proceeding

brought under the [Post-Conviction Act] is not an appeal of a defendant’s underlying judgment.

Rather, it is a collateral attack on the judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999).

¶ 22 At the first stage, the circuit court must independently review the postconviction petition

within 90 days of its filing and determine whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). If the circuit court does not dismiss the

postconviction petition as frivolous or patently without merit, then the petition advances to the

second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4

(West 2012)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West

2012)). At this stage, the circuit court must determine whether the petition and any

accompanying documentation make a substantial showing of a constitutional violation. See

Coleman, 183 Ill. 2d at 381. If no such showing is made, the petition is dismissed. “At the

second stage of proceedings, all well-pleaded facts that are not positively rebutted by the trial

record are to be taken as true, and, in the event the circuit court dismisses the petition at that

stage, we generally review the circuit court’s decision using a de novo standard.” People v.

Pendleton, 223 Ill. 2d 458, 473 (2006). If, however, a substantial showing of a constitutional

violation is set forth, then the petition is advanced to the third stage, where the circuit court

conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). “Only those claims in which a

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substantial showing has been made entitle the defendant to an evidentiary hearing.” People v.

Cleveland, 2012 IL App (1st) 101631, ¶ 55 (citing People v. Lara, 317 Ill. App. 3d 905, 908

(2000)).

¶ 23 However, the Post-Conviction Act only contemplates the filing of one postconviction

petition with limited exceptions. 725 ILCS 5/122-1(f) (West 2012); see also People v.

Pitsonbarger, 205 Ill. 2d 444, 456 (2002). The supreme court has recognized two bases upon

which the bar against successive proceedings will be relaxed. People v. Edwards, 2012 IL

111711, ¶ 22. First, under section 122-1(f), a defendant must satisfy the cause and prejudice test

for failure to raise the claim earlier in order to be granted leave to file a successive

postconviction petition. 725 ILCS 5/122-1(f) (West 2012). The second basis to relax the bar

against a successive postconviction is “what is known as the ‘fundamental miscarriage of justice’

exception.” Edwards, 2012 IL 111711, ¶ 23. “The United States Supreme Court has stated that

the exception serves as an additional safeguard against compelling an innocent man to suffer an

unconstitutional loss of liberty [citation], guaranteeing that the ends of justice will be served in

full.” (Internal quotation marks omitted.) Id. (quoting People v. Szabo, 186 Ill. 2d 19, 43 (1998)

(Freeman, C.J., specially concurring, joined by Heiple, J.), quoting McCleskey v. Zant, 499 U.S.

467, 495 (1991)).

¶ 24 “In order to demonstrate a miscarriage of justice to excuse the application of the

procedural bar, a petitioner must show actual innocence.” Id. With respect to those seeking to

relax the bar against successive postconviction petitions on the basis of actual innocence, the

supreme court has held that “leave of court should be denied only where it is clear, from a review

of the successive petition and the documentation provided by the petitioner that, as a matter of

law, the petitioner cannot set forth a colorable claim of actual innocence.” Id. ¶ 24. “Stated

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differently, leave of court should be granted when the petitioner’s supporting documentation

raises the probability that ‘it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). “The elements of a claim of actual innocence are that the evidence in support of the

claim must be ‘newly discovered’; material and not merely cumulative; and of such conclusive

character that it would probably change the result on retrial.” Id. ¶ 32 (citing People v. Ortiz, 235

Ill. 2d 319, 333 (2009)).

¶ 25 The issue before us on appeal does not involve a consideration of the merits of

defendant’s petition, but rather a review of whether defendant received a reasonable level of

assistance as he was entitled during the postconviction proceedings.

¶ 26 Defendant in postconviction proceedings is only entitled to a “reasonable” level of

assistance, which is lower than the standard given under federal or state constitutions. Pendleton,

223 Ill. 2d at 472. “Counsel’s duties, pursuant to Rule 651(c), include consultation with the

defendant to ascertain his contentions of deprivation of constitutional right, examination of the

record of the proceedings at the trial, and amendment of the petition, if necessary, to ensure that

defendant’s contentions are adequately presented.” Id.; see also Ill. S. Ct. R. 651(c) (eff. Dec. 1,

1984). Under Rule 651(c), postconviction counsel is required “to examine as much of the record

‘as is necessary to adequately present and support those constitutional claims raised by the

petitioner.’ ” Pendleton, 223 Ill. 2d at 475-76 (quoting People v. Davis, 156 Ill. 2d 149, 164

(1993)). Postconviction counsel may conduct a more thorough examination of the record and

raise additional claims, but he or she is under no obligation to do so. Id. at 476. Postconviction

counsel is not required to advance frivolous or spurious claims and “ ‘is only required to

investigate and properly present the petitioner’s claims.’ ” (Emphasis in original.) Id. at 475

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(quoting Davis, 156 Ill. 2d at 164). “[E]thical obligations prohibit counsel from doing so if the

claims are frivolous or spurious.” People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008) (citing

People v. Greer, 212 Ill. 2d 192, 205 (2004)). “The question remains what should counsel do if

counsel investigates the claims but finds them without merit.” Id. Illinois case law provides

options: (1) “stand on the allegations in the pro se petition and inform the court of the reason the

petition was not amended” or (2) withdraw as counsel. Id. “In both of these scenarios, the

allegations in the pro se petition remained to proceed according to the parameters of the Act.” Id.

¶ 27 We find the supreme court’s discussion in People v. Kuehner, 2015 IL 117695,

describing postconviction counsel’s responsibilities in filing a motion to withdraw to be

instructive. When at the second stage of proceedings after the trial court has found that petition is

not frivolous or without merit, then “appointed counsel’s task is not to second guess the trial

court’s first-stage finding but rather is to move the process forward by cleaning up the

defendant’s pro se claims and presenting them to the court for adjudication.” Id. ¶ 20. However,

the supreme court acknowledged that postconviction counsel may discover “something that

ethically would prohibit [him or her] from actually presenting the defendant’s claims to the

court.” Id. ¶ 21. Postconviction counsel “bears the burden of demonstrating, with respect to each

of the defendant’s pro se claims, why the trial court’s initial assessment was incorrect.” Id. The

supreme court compared postconviction counsel’s motion to withdraw to a motion to reconsider,

in that “a motion to withdraw filed subsequent to a trial court’s affirmative decision to advance

the petition to the second stage does not ask the trial court to conduct its first-stage assessment a

second time but rather seeks to bring to the trial court’s attention information that was not

apparent on the face of the pro se petition at the time such assessment was made.” Id. Therefore,

“where a pro se postconviction petition advances to the second stage on the basis of an

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affirmative judicial determination that the petition is neither frivolous nor patently without merit,

appointed counsel’s motion to withdraw must contain at least some explanation as to why all of

the claims set forth in that petition are so lacking in legal and factual support as to compel his or

her withdrawal from the case.” Id. ¶ 27.

¶ 28 In this case, postconviction counsel did not stand on the petition or move to withdraw but

withdrew a supporting affidavit over defendant’s objection. Defendant argues that counsel’s

decision to withdraw the affidavit rather than withdraw as counsel deprived him of reasonable

assistance. In the trial court, defendant’s petition raising a claim of actual innocence was

advanced to the second stage, and postconviction counsel was appointed to represent defendant.

Initially, counsel filed a Rule 651(c) certificate indicating that she was not amending defendant’s

petition as it adequately presented his postconviction claims. The State agreed that the petition

should be advanced to a third stage evidentiary hearing. Later, the State disclosed that its

investigation called into question the authenticity of the Hayden affidavit attached to defendant’s

petition. Hayden was interviewed by an ASA and an investigator and stated that she did not sign

the affidavit and her identification had been stolen. Subsequently, postconviction counsel moved

to withdraw Hayden’s affidavit “after much investigation” but did not describe her investigation.

Counsel then substituted defendant’s affidavit in which he simply proclaims his innocence. The

State then orally moved to dismiss the petition and postconviction counsel waived notice and

offered no argument. The trial court took the motion under advisement and later dismissed the

petition as frivolous and without merit because defendant’s affidavit failed to set forth the

elements necessary to establish a claim of actual innocence. Postconviction counsel also filed an

amended Rule 651(c) certificate indicating her withdrawal and substitution of affidavits. Counsel

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also stated on the record that defendant did not agree with her actions, but “as an officer of the

Court, I stand by my decision.”

¶ 29 Defendant relies on two decisions to support his claim of unreasonable assistance of

postconviction counsel. In People v. Shortridge, 2012 IL App (4th) 100663, the defendant had

plead guilty to one count of criminal drug conspiracy. He subsequently filed a pro se

postconviction petition arguing ineffective assistance of trial counsel and due process violations.

He attached his own affidavit, denying his involvement in a drug conspiracy. Id. ¶¶ 3-4.

Postconviction counsel filed a Rule 651(c) certificate but did not amend the defendant’s petition.

The State moved to dismiss the defendant’s petition. At a hearing, postconviction counsel stated

that he was “ ‘going to confess the motion to dismiss.’ ” Id. ¶ 6. The court then dismissed the

petition. Defendant later filed pro se motions for withdrawal of postconviction counsel and to

reconsider the dismissal of his petition. The court ruled that the withdrawal motion was moot and

the motion to reconsider was stricken for not being filed by counsel. Id. ¶ 7.

¶ 30 On appeal, the Fourth District held that “[i]f counsel, in fact, found the allegations

‘nonmeritorious,’ even with any necessary amendments, then he should have moved to withdraw

as counsel, not confess the State’s motion to dismiss.” Id. ¶ 14. The court reversed the dismissal

of the defendant’s petition and ordered for new counsel to be appointed to represent the

defendant. Id. ¶ 15. “If newly appointed counsel, after complying with the mandates of Rule 651,

determines that defendant’s petition lacks any meritorious issue, then he should move to

withdraw as counsel. At that point, the circuit court would need to determine whether the record

supported counsel’s assertion that the petition was without merit.” Id. “Depending on the court’s

assessment, defendant could be allowed to proceed pro se. In other words, appointed counsel

should either represent defendant’s interests in the proceedings or move to withdraw.” Id.

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¶ 31 In People v. Elken, 2014 IL App (3d) 120580, ¶¶ 19-20, postconviction counsel informed

the trial court that the defendant’s postconviction petition had no merit by explaining why each

issue failed, but he did not move to withdraw. In response, the trial court then dismissed the

defendant’s postconviction petition “ ‘based upon arguments of defense counsel.’ ” Id. ¶ 21. The

State did not raise its motion to dismiss or make any arguments. Id. The defendant filed a motion

to reconsider the dismissal of his petition and allowing counsel to withdraw, which the trial court

denied. Id. ¶¶ 22-23.

¶ 32 On appeal, the Third District noted the “unorthodox procedure” in the trial court and

observed that postconviction counsel never moved to withdraw and the record does not show that

the trial court allowed counsel to withdraw, but it did dismiss the petition. Id. ¶ 27. The

reviewing court reversed the dismissal of the defendant’s postconviction petition, finding the

reversal was warranted when counsel failed to file a motion to withdraw and instead “simply

stood up at the hearing and stated that defendant’s contentions had no merit.” Id. ¶ 32. The court

reasoned:

“If counsel finds that defendant’s contentions are frivolous or

patently without merit at the second stage, he cannot in good faith

continue, so he must file a motion to withdraw. If he files a motion

to withdraw, he must give his reasons for doing so. He is then, in

essence, ‘confessing’ that the defendant has no viable arguments

and is, in essence, agreeing that the petition should be dismissed.

Our point is only that the confession is not necessarily wrong, but

defendant should be afforded the opportunity to prepare for such

an attack on his petition and to make any arguments in rebuttal. He

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was denied that opportunity here. The appropriate procedure under

these circumstances would be for appointed counsel to file a

motion to withdraw, giving defendant notice of the same. This

allows defendant to prepare to argue against appointed counsel’s

motion. It further obviates any opportunity for a defendant to argue

that he was blindsided by his appointed counsel’s arguments.” Id.

¶ 36.

¶ 33 The State responds that the circumstances present in this case are distinguishable from

Shortridge and Elken, and are more in line with People v. Malone, 2017 IL App (3d) 140165,

and People v. Rivera, 2016 IL App (1st) 132573. In Malone, the defendant’s petition advanced to

the second stage, and counsel was appointed. The State moved to dismiss the petition, arguing

that none of the issues raised had merit. At the hearing on the motion, postconviction counsel

stated that he disagreed with the State’s motion and then stood on the arguments raised in the

petition. Counsel filed a Rule 651(c) certificate and did not amend the defendant’s petition.

Malone, 2017 IL App (3d) 140165, ¶ 5.

¶ 34 On appeal, the defendant argued that he received unreasonable assistance from his

postconviction counsel as counsel should have either amended the petition or sought to withdraw

from representation. Id. ¶ 7. The Third District concluded that once counsel filed a compliant

Rule 651(c) certificate, the rebuttable presumption arose that counsel provided reasonable

assistance and the defendant failed to rebut that presumption. Id. ¶ 11. The court further found

that while the supreme court in Greer, 212 Ill. 2d at 211, allowed “postconviction counsel to

withdraw when the allegations of the petition are without merit and frivolous, it does

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not compel withdrawal under such circumstances.” (Emphasis in original.) Malone, 2017 IL App

(3d) 140165, ¶ 12.

¶ 35 In Rivera, the defendant had been convicted of first degree murder as the shooter in a

gang-related shooting. In his postconviction petition, the defendant raised a claim of actual

innocence based on an affidavit from his codefendant. Rivera, 2016 IL App (1st) 132573, ¶ 1.

The codefendant had pleaded guilty to first degree murder under a theory of accountability, and

in the affidavit, the codefendant stated for the first time that he was the shooter in the murder, not

the defendant. Id. ¶¶ 6-7. At second stage proceedings, postconviction counsel filed a Rule

651(c) certificate and stated that the defendant’s petition adequately presented the claims. The

State moved to dismiss the petition, asserting that the codefendant’s affidavit was unreliable. Id.

¶¶ 8-9. At a hearing, the trial court requested the transcript from the codefendant’s guilty plea

hearing. During a colloquy on that request, postconviction counsel stated, “ ‘It is probably

important to see what the factual basis was.’ ” Id. ¶ 11-12. At a later court date, the trial court

indicated that it had obtained the transcript and the factual basis conflicted with the

codefendant’s affidavit in support of the defendant’s postconviction petition. Postconviction

counsel offered no argument. The court then dismissed the defendant’s petition. Id. ¶¶ 14-15.

¶ 36 On appeal, the defendant argued that the trial court erred in considering evidence outside

the record of his case in assessing the credibility of his codefendant’s affidavit at second stage

and that his postconviction counsel provided unreasonable assistance by effectively agreeing that

the trial court should consider the transcripts of codefendant’s plea hearing. Based on the

supreme court’s decision in People v. Sanders, 2016 IL 118123, the reviewing court held that the

trial court erred in considering evidence outside the record of the defendant’s case. Nevertheless,

the court affirmed the dismissal after concluding that the codefendant’s affidavit was not of such

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conclusive character that it would probably change to result on retrial. Rivera, 2016 IL App (1st)

132573, ¶ 33.

¶ 37 Finally, the reviewing court concluded that postconviction counsel’s representation of the

defendant did not fall below the standard set forth in Rule 651(c). In reaching this conclusion, the

court distinguished that case from Shortridge, noting that “at no point did counsel express the

view that defendant’s postconviction claims were without merit, as occurred in Shortridge.

Instead, counsel told the court he would ‘stand on the pro se petition’ of defendant.” Id. ¶ 39.

Further, “[u]nlike in Shortridge, postconviction counsel’s remark in this case that the factual

basis for [the codefendant’s] plea was ‘probably important’ did not represent a concession of the

petition’s merits.” Id.

¶ 38 The State contends that in Rivera the court drew a line in the sand between those actions

which affirmatively damage a defendant’s claims (Shortridge and Elken) and either passive or

forfeited actions which, at most, result in a failure to advance a defendant’s specific claim

(Rivera). The State further asserts that this case falls into the latter category because

postconviction counsel never indicated that defendant’s claim of actual innocence was frivolous

or without merit. According to the State, any claim that the withdrawal of the Hayden affidavit

over defendant’s objection damaged defendant’s claim should be rejected because the affidavit

had “no evidentiary value” based on the ASA’s and postconviction counsel’s investigations. We

disagree with the State.

¶ 39 We find the circumstances in this case more analogous to Shortridge and Elken. While

postconviction counsel did not explicitly “confess” that the petition was frivolous and without

merit, counsel’s actions fell below a reasonable level of assistance. Here, postconviction counsel

acted, over defendant’s objection, to withdraw the Hayden affidavit from defendant’s petition

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and substituted defendant’s self-serving affidavit. While the record establishes serious questions

regarding the reliability of the Hayden affidavit, counsel’s actions amounted to an affirmative

action that damaged defendant’s claims. Defendant’s claim of actual innocence could not stand

absent Hayden’s affidavit, as defendant’s bald assertion of innocence cannot support a claim of

actual innocence. See Edwards, 2012 IL 111711, ¶ 32. As our analysis illustrates, when

confronted with an ethical dilemma, such as the authenticity of the Hayden affidavit, counsel has

two options: stand on the petition or move to withdraw. Counsel in this case took neither option

and removed the factual support from defendant’s petition and then tacitly agreed with the

State’s oral motion to dismiss the petition. Defendant was given no opportunity to respond to his

counsel’s actions. Accordingly, we reverse the dismissal of defendant’s postconviction petition

and remand for new second stage proceedings on his original pro se successive postconviction

petition with new counsel appointed to represent defendant. New counsel will have the

opportunity to review defendant’s petition and the record and either proceed in his or her

representation or move to withdraw, allowing defendant an opportunity to respond.

¶ 40 Since we have remanded the case for new second stage proceedings, we vacate the

imposition of the $105 fees and costs assessed against defendant for filing a frivolous petition.

See 735 ILCS 5/22-105 (West 2012); 705 ILCS 105/27.2a (West 2012). We make no finding as

to whether the fees may be assessed based on the proceedings on remand.

¶ 41 Based on the foregoing reasons, we reverse the dismissal of defendant’s successive

postconviction petition and remand for further proceedings in accordance with this decision.

¶ 42 Reversed and remanded.

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