People v. Smith

2020 IL App (1st) 181220
No. 1-18-1220
Opinion filed December 31, 2020
Fourth Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 08 CR 2655
)
KARL SMITH, ) Honorable
) Thomas Joseph Hennelly,
Defendant-Appellant. ) Judge, presiding.

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

OPINION

¶1 Defendant Karl Smith appeals the second-stage dismissal of his postconviction petition.

He argues that he is entitled to a remand for further second-stage proceedings because the attorney

who represented him at the hearing on the State’s motion to dismiss his petition did not comply

with the requirements of Illinois Supreme Court Rule 651(c). The State counters that the attorney

was not required to independently satisfy the duties prescribed by Rule 651(c) because her
No. 1-18-1220

predecessor counsel had already filed a valid Rule 651(c) certificate. For the following reasons,

we agree with the State and affirm the circuit court’s judgment. 1

¶2 I. BACKGROUND

¶3 In January 2008, defendant and two other men forced their way into an apartment that

Gabriel Curiel shared with his brother, Jonathon Collazo. Gabriel’s three children, including six-

year-old David, were also present at the time. The intruders stole money and cannabis from a safe

in the apartment. During the incident, David was shot in the head, and Gabriel was beaten, stabbed

in the chest, and shot in the shoulder. Both were seriously injured but survived.

¶4 At a jury trial in 2011, Gabriel and Collazo identified defendant as one of the offenders.

The State also called David, then nine years old, to testify. Before trial, defendant requested a

hearing on David’s competency, but the trial court stated that it would address that issue at trial.

After taking the stand, David answered several preliminary questions, but when asked about the

day of the attack, he responded “I need a hug” and “I want my mom.” The jury was then excused,

and defense counsel moved for a mistrial, arguing that David’s emotional reaction in front of the

jury had prejudiced defendant. The trial court denied that request, but stated that it would conduct

a competency hearing if the State recalled David to the stand. The State did not recall David and

the trial court later instructed the jury to disregard his testimony and what had occurred while he

was on the stand.

¶5 The jury found defendant guilty of two counts of attempted first degree murder, two counts

of aggravated battery with a firearm, and one count each of home invasion, armed robbery, and

1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.

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aggravated battery of a child. The trial court sentenced defendant to consecutive prison terms of

30 years and 25 years on the attempted first degree murder convictions and consecutive terms of

22 years for the home invasion and armed robbery convictions, for an aggregate sentence of

99 years. The court imposed concurrent sentences of 30 years and 15 years on the aggravated

battery with a firearm convictions and no sentence on the aggravated battery of a child conviction,

which merged with one of the aggravated battery with a firearm convictions.

¶6 On direct appeal, defendant argued that his aggravated battery convictions should be

vacated under the one-act, one-crime rule because they were based on the same physical acts as

his attempted first degree murder convictions, namely, the shootings of Gabriel and David.

We vacated one of defendant’s aggravated battery with a firearm convictions and his aggravated

battery of a child conviction because those convictions were based on defendant’s act of shooting

David, which was the same act underlying his conviction for attempted first degree murder of

David. People v. Smith, 2013 IL App (1st) 120311-U, ¶ 8. But we affirmed defendant’s other

aggravated battery with a firearm conviction because that conviction was based on defendant’s act

of shooting Gabriel, while his conviction for attempted first degree murder of Gabriel was based

on his distinct act of stabbing Gabriel. Id. ¶ 9.

¶7 In March 2014, defendant filed a pro se postconviction petition, alleging that (1) he was

not proven guilty beyond a reasonable doubt, (2) the State violated Brady v. Maryland, 373 U.S.

83 (1963), by failing to disclose David’s pretrial statement identifying him, (3) the trial court erred

in rejecting his request for a pretrial hearing on David’s competency to testify, which caused him

prejudice when David had an emotional breakdown in front of the jury, (4) the trial court erred in

imposing consecutive sentences for convictions arising from the same course of conduct and not

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informing him before trial that he could receive consecutive sentences, and (5) his appellate

counsel was ineffective for failing to raise the preceding claims on direct appeal.

¶8 When the trial court failed to rule on the petition in 90 days, it automatically advanced to

second-stage proceedings and the court appointed the Office of the Public Defender to represent

defendant. On January 23, 2015, Assistant Public Defender (APD) Denise Avant appeared on

defendant’s behalf. On April 22, 2016, after several continuances, APD Avant filed a certificate

under Illinois Supreme Court Rule 651(c) attesting that she had consulted with defendant by phone

to ascertain his contentions of deprivations of constitutional rights, had reviewed the transcript of

defendant’s trial and the briefs from his direct appeal, had spoken with defendant’s trial counsel,

had researched the issues in defendant’s pro se petition, and had determined that no supplemental

petition was necessary to adequately present defendant’s contentions.

¶9 On April 6, 2017, the State filed a motion to dismiss defendant’s petition, arguing that it

was untimely and that defendant’s claims were meritless. On August 4, 2017, APD Avant filed a

response to the State’s motion, conceding that defendant filed his petition 38 days late but arguing

that the delay should be excused because defendant was not culpably negligent. In support, APD

Avant submitted an affidavit from defendant explaining that he had only a tenth grade education

and was unfamiliar with the legal rules for calculating the deadline for filing a postconviction

petition.

¶ 10 Sometime after filing the response to the State’s motion to dismiss, APD Avant left the

Public Defender’s office and the case was reassigned to APD Kristine Underwood. On March 26,

2018, APD Underwood represented defendant at the hearing on the State’s motion to dismiss. APD

Underwood argued that the untimeliness of defendant’s petition should be excused because his

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mistake in calculating the deadline for filing the petition did not constitute culpable negligence.

On the merits, APD Underwood focused on defendant’s claim that the trial court erred in denying

his request for a pretrial hearing on David’s competency to testify. APD Underwood argued that,

in light of David’s age and the head injuries he suffered in the shooting, a pretrial hearing on his

competency was warranted. And though David ultimately did not testify at trial, APD Underwood

argued that defendant was prejudiced by the lack of a pretrial competency hearing when David

became emotional in front of the jury while attempting to testify.

¶ 11 In an oral ruling, the trial court granted the State’s motion to dismiss. The court found that

defendant’s petition was untimely, but it did not address the argument that the lateness should be

excused due to defendant’s lack of culpable negligence. The trial court also found that defendant’s

claims were meritless. As for the claim that the court erred in denying defendant’s request for a

pretrial hearing on David’s competency, the court noted that David ultimately did not testify and

that the jury was instructed to disregard what occurred when he was briefly called to the stand.

After the court announced its ruling, defendant filed a timely notice of appeal.

¶ 12 II. ANALYSIS

¶ 13 Defendant’s sole argument on appeal is that he is entitled to a remand for further second-

stage proceedings because APD Underwood did not file a Rule 651(c) certificate and the record

does not otherwise establish that she independently complied with the duties specified by the rule.

Defendant does not dispute that APD Avant complied with the requirements of Rule 651(c).

But he argues that, regardless of APD Avant’s compliance, APD Underwood, as the attorney who

represented him at the hearing on the State’s motion to dismiss, was independently required to

comply with Rule 651(c). We review an attorney’s compliance with Rule 651(c) de novo.

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People v. Profit, 2012 IL App (1st) 101307, ¶ 17. We likewise review the scope of an attorney’s

duties under Rule 651(c) de novo. See People v. Suarez, 224 Ill. 2d 37, 41-42 (2007) (questions

concerning the proper interpretation of a supreme court rule are reviewed de novo).

¶ 14 Under the Post-Conviction Hearing Act, when a postconviction petition is not dismissed

as frivolous or patently without merit within 90 days after it is filed, the petition advances to

second-stage proceedings, including the appointment of counsel. 725 ILCS 5/122-2.1(b) (West

2018); 725 ILCS 5/122-4 (West 2018); People v. Bailey, 2017 IL 121450, ¶ 18. There is “no

constitutional right to counsel, effective or otherwise,” in postconviction proceedings. People v.

Custer, 2019 IL 123339, ¶ 30; see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather, the

right to counsel recognized by the Post-Conviction Hearing Act exists as a matter of legislative

grace. Custer, 2019 IL 123339, ¶ 30. A postconviction petitioner is thus “entitled to only the level

of assistance guaranteed by the Act.” (Internal quotation marks omitted.) Id. That “required

quantum of assistance has been judicially deemed to be a ‘reasonable level,’ a standard that is

significantly lower than the one mandated at trial by our state and federal constitutions.” Id.

(quoting People v. Pendleton, 223 Ill. 2d 458, 472 (2006)).

¶ 15 To ensure that postconviction petitioners receive the reasonable level of assistance

guaranteed under the Post-Conviction Hearing Act, Rule 651(c) requires postconviction counsel

to perform three specific tasks. Suarez, 224 Ill. 2d at 42. In particular, Rule 651(c) requires

postconviction counsel to “consult[ ] with [the] petitioner by phone, mail, electronic means or in

person to ascertain his or her contentions of deprivation of constitutional rights, *** examine[ ]

the record of the proceedings at the trial, and [make] any amendments to the petitions filed pro se

that are necessary for an adequate presentation of [the] petitioner’s contentions.” Ill. S. Ct.

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R. 651(c) (eff. July 1, 2017); see People v. Kirk, 2012 IL App (1st) 101606, ¶ 18. These duties

serve “to ensure that counsel shapes the petitioner’s claims into proper legal form and presents

those claims to the court.” People v. Perkins, 229 Ill. 2d 34, 44 (2007). When a postconviction

attorney files a certificate attesting that she has performed the duties mandated by Rule 651(c), the

certificate gives rise to a rebuttable presumption that counsel provided the reasonable level of

assistance guaranteed by the Post-Conviction Hearing Act. Profit, 2012 IL App (1st) 101307, ¶ 19.

¶ 16 As noted, defendant does not dispute that APD Avant filed a Rule 651(c) certificate, and

he makes no attempt to overcome the presumption that APD Avant provided him the reasonable

assistance guaranteed by the Post-Conviction Hearing Act. Instead, defendant contends that APD

Underwood, who replaced APD Avant as his counsel prior to the hearing on the State’s motion to

dismiss, was herself required to comply with Rule 651(c)’s requirements. But we find no support

for this contention in either the Post-Conviction Hearing Act or Rule 651(c).

¶ 17 This court’s decision in People v. Marshall, 375 Ill. App. 3d 670 (2007), is instructive.

There, a defendant who was denied postconviction relief after a third-stage evidentiary hearing

argued that the attorneys who represented her at the evidentiary hearing were required to comply

with the requirements of Rule 651(c) even though the attorney who previously represented her at

the second-stage proceedings on her petition had already certified compliance with the rule’s

requirements. Id. at 672, 679. In rejecting this contention, we held that “Rule 651(c)’s requirements

must be met only once and not, as defendant suggests, by attorneys representing a defendant at

each stage of postconviction proceedings.” Id. at 682.

¶ 18 We explained that counsel at the various stages of the postconviction process have distinct

roles. In particular, counsel at second-stage proceedings must satisfy Rule 651(c)’s requirements

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of consulting with the petitioner, reviewing the record, and making any necessary amendments to

the petitioner’s pro se petition “so that the State can fully review the defendant’s claims and

determine if it will move to dismiss them.” Id. at 683. “An attorney at the evidentiary hearing

stage,” by contrast, “must argue the merits of the postconviction petitioner’s claims as presented

in the petition following review by counsel at the second stage.” Id. In light of these distinctive

roles, we concluded that “Rule 651(c) does not require third-stage counsel to duplicate the efforts

of second-stage counsel.” Id.

¶ 19 Although Marshall did not address the precise question presented here, we think its

reasoning applies with full force. Defendant does not dispute that APD Avant consulted with him

to ascertain his contentions of constitutional error, reviewed the record of his trial proceedings,

and reasonably determined that no amendments to his pro se petition were necessary to adequately

present his claims. By certifying her compliance with these duties, APD Avant created a rebuttable

presumption, which defendant does not attempt to overcome, that APD Avant provided the level

of reasonable assistance mandated by the Post-Conviction Hearing Act. Profit, 2012 IL App (1st)

101307, ¶ 19. In addition to complying with the duties specified in Rule 651(c), APD Avant filed

a written response to the State’s motion to dismiss, urging the trial court to excuse the tardy filing

of defendant’s pro se petition due to a lack of culpable negligence on defendant’s part. Defendant

likewise makes no argument that APD Avant rendered unreasonable assistance in responding to

the State’s motion.

¶ 20 When APD Underwood replaced APD Avant as defendant’s counsel, all that was left to do

was orally argue defendant’s position at the hearing on the State’s motion to dismiss. Much like

the attorneys at the third-stage evidentiary hearing in Marshall, APD Underwood’s role was

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different than that of the attorney she replaced. Her task was to urge that the untimely filing of

defendant’s pro se petition be excused (as APD Avant had previously done in writing) and “argue

the merits of [defendant’s] claims as presented in the petition following review by [APD Avant].”

Marshall, 375 Ill. App. 3d at 683. To perform that limited role, it was not necessary for APD

Underwood to independently consult with defendant to ascertain his contentions of constitutional

error, review the trial record, or determine whether any amendments to defendant’s pro se petition

were necessary to adequately present his claims. APD Underwood was entitled to rely on APD

Avant’s certificate of compliance with respect to those duties and was not required “to duplicate

[APD Avant’s] efforts.” Id.

¶ 21 Resisting this conclusion, defendant cites two decisions of the Second District applying

Illinois Supreme Court Rule 604(d). That rule provides that, when a defendant moves to withdraw

his guilty plea or reconsider the sentence imposed following his plea, the defendant’s attorney

must certify that he “has consulted with the defendant *** to ascertain defendant’s contentions of

error ***, has examined the [relevant records], and has made any amendments to the motion

necessary for adequate presentation of any defects in those proceedings.” Ill. S. Ct. R. 604(d) (eff.

July 1, 2017). In People v. Ritchie, 258 Ill. App. 3d 164, 166-67 (1994), and People v. Herrera,

2012 IL App (2d) 110009, ¶ 11, the Second District held that the attorney who represents a

defendant at the hearing on his motion must independently certify compliance with Rule 604(d),

even if an earlier attorney who has since withdrawn previously certified his own compliance.

Ritchie explained that “one purpose of [Rule 604(d)] is to assure that all of [a] defendant’s viable

contentions of error are presented to the court,” and that that purpose would be “frustrated if an

affidavit by an attorney who no longer represents [the] defendant is deemed adequate compliance

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with the rule.” Ritchie, 258 Ill. App. 3d at 166-67. Herrera further reasoned that, due to “the strict

forfeiture provision of Rule 604(d) ***, fundamental fairness requires that the defendant have the

assistance of counsel in preparing and presenting his motion, and Rule 604(d) ensures that those

duties are performed and that the defendant’s due process rights are protected.” (Emphasis in

original.) Herrera, 2012 IL App (2d) 110009, ¶ 11.

¶ 22 Assuming arguendo that Ritchie and Herrera correctly interpreted the requirements of

Rule 604(d), we reject defendant’s call to extend that interpretation to Rule 651(c). Although

superficially similar, Rule 604(d) and Rule 651(c) serve fundamentally distinct purposes.

Rule 604(d) protects a defendant’s constitutional right to effective assistance of counsel at a critical

stage of the proceedings on his guilty plea. People v. Young, 355 Ill. App. 3d 317, 324 (2005).

In contrast, Rule 651(c) protects only the statutory right to reasonable assistance of counsel that

applies in postconviction proceedings. Custer, 2019 IL 123339, ¶ 30. Thus, even if the attorney

who represents a defendant at the hearing on his motion to withdraw his guilty plea or reconsider

the sentence imposed following his guilty plea must certify compliance with Rule 604(d) despite

a predecessor attorney’s earlier certificate, there is no logical reason why the same rule should

apply to a postconviction attorney’s compliance with the requirements of Rule 651(c), since the

standards of attorney performance that those rules protect differ so drastically. See Custer, 2019

IL 123339, ¶ 30 (standard of reasonable assistance guaranteed in postconviction proceedings “is

significantly lower than the [standard] mandated at trial by our state and federal constitutions”).

¶ 23 The duties imposed on postconviction counsel under Rule 651(c) exist to ensure that

postconviction petitioners receive the reasonable assistance of counsel guaranteed by the Post-

Conviction Hearing Act. Suarez, 224 Ill. 2d at 42. Here, APD Avant certified that she complied

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with the duties specified in Rule 651(c), including consulting with defendant to ascertain his

contentions of constitutional error, reviewing the trial record, and determining that no amendments

to his pro se petition were necessary to adequately present his claims. APD Avant’s certificate

created a rebuttable presumption that defendant received reasonable assistance of postconviction

counsel. Profit, 2012 IL App (1st) 101307, ¶ 19. APD Underwood, who replaced APD Avant prior

to the hearing on the State’s motion to dismiss, was not required to duplicate APD Avant’s efforts

and independently perform the duties specified in Rule 651(c) in order to provide reasonable

assistance at the motion hearing.

¶ 24 Because defendant has not rebutted the presumption of reasonable assistance created by

APD Avant’s Rule 651(c) certificate, nor identified any specific deficiency in APD Underwood’s

performance other than her failure to independently comply with Rule 651(c), there is no basis to

remand this matter for further second-stage proceedings.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 27 Affirmed.

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No. 1-18-1220

Cite as: People v. Smith, 2020 IL App (1st) 181220

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR-2655;
the Hon. Thomas Joseph Hennelly, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Peter Sgro, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, and Tyler J. Cox, Assistant State’s Attorneys, of
Appellee: counsel), for the People.

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