People v. Gaston

2021 IL App (1st) 190566-U
SIXTH DIVISION
December 30, 2021

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF
ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 20601
)
ELBERT GASTON, ) Honorable
) Angela Munari Petrone,
Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE PIERCE delivered the judgment of the court.
Justices Harris and Johnson concurred in the judgment.

ORDER

¶1 Held: The court did not err in dismissing ’s postconviction petition at the second stage.

¶ 2 Elbert Gaston appeals from the second stage dismissal of his petition for relief under thePost-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He argues that he made

a substantial showing that appellate counsel was ineffective for failing to argue that findings

made by the trial court demonstrated judicial bias. He also argues that postconviction counsel

failed to comply with Supreme Court Rule 651(c). For the following reasons, we affirm
1-19-0566

the judgment of the circuit court.

¶ 3 Following a 2012 bench trial, petitioner was convicted of attempted aggravated criminal

sexual assault and sentenced, as a Class X offender, to 15 years’ imprisonment. We affirmed

petitioner’s conviction on direct appeal. See People v. Gaston, 2014 IL App (1st) 123387-U. The

relevant evidence is summarized here.

¶4 Petitioner was charged, in pertinent part, with attempted aggravated criminal sexual assault

of R.C., stemming from an incident that occurred during the late evening hours of September 30,

2011, into the early morning hours of October 1, 2011. The record shows that, prior to trial, on

April 2, 2012, the State informed the court that the parties “are trying to seeif we can work this

out. If not, on the next court date I’ll be filing a motion for proof of other crimes.” Over three

months later, the State indicated, “there was a preliminary offer tendered andfor the record, it is

now revoked.”

¶ 6 At trial, R.C. testified that petitioner was the biological father of three of her four children,

and that, at the time of trial, she and petitioner were working on repairing their relationship. With

regard to the events of the evening in question, R.C. testified that, after petitioner had agreed to

have sex with her, they met each other at a gas station near 63rd and State Streets. R.C. was

intoxicated before she arrived at the gas station and willingly entered petitioner’s vehicle where

they started drinking alcohol. When the two were about to have sex inthe car, petitioner received

a phone call from another woman. Petitioner then indicated that he was ready to leave. R.C.

became angry and stabbed him in the face and arm with a knife. The two then started fighting

and exited the car. Petitioner punched R.C. in the face and they continued fighting until the police

arrived at the station, at which time petitioner left the scene.

¶7 R.C. stated that, when the police approached her, she did not have her shirt on because

2
1-19-0566

she voluntarily took it off while she was in the car with petitioner. R.C. acknowledged

that the bruises and injuries she sustained on her face and body were due to the altercation

she had with petitioner. After the police left the scene, R.C. drove away in petitioner’s

vehicle and set it on fire.

¶ 8 R.C. acknowledged that she told the responding officer a different story about what happened

on the night in question. In particular, R.C. told the responding officer that petitioner shoved her

into the passenger seat of his vehicle, threatened to kill her, and stated that he was going to have

sex with her. R.C. denied later telling Detective Timothy Earls that petitioner forced her into his

vehicle, and that she refused his sexual advances which culminated in petitioner hitting her in the

face and body. R.C. further indicated that she complied with the Assistant State’s Attorney (ASA)

Holly Kremin’s request to sign certain documents, but that shedid not read the documents.

¶ 9 On cross-examination, R.C. testified that petitioner did not force her into his car and thatshe

willingly removed her shirt. She acknowledged that on December 15, 2011, she submitted an

affidavit to the State essentially recanting her prior written statement, implicating petitioner.

Defense counsel introduced the affidavit into evidence. In the affidavit, R.C. attested that the

events that unfolded on the evening in question were the result of an argument between her and

petitioner that went too far. She averred that they were both drunk at the time of the incident,and

that petitioner never attempted to sexually assault her on October 1, 2011, or any other day that

they were together.

¶ 10 Officer Todd Partyka testified that, on the evening in question, he was on routine patrol with

Officer Bochenek when, around 1 a.m., he received a call that a battery was in progress at agas

station. As Partyka approached the gas station in his squad car, he observed two individuals,

3
1-19-0566

one of whom was on the ground and the other, who was wearing a white shirt, standing above

the individual on the ground and making a stomping motion. When he exited his squad car,

Partyka saw the individual who was wearing the white shirt flee the scene. Partyka identified the

individual as a male, and he and Bochenek pursued him, but did not detain him.

¶ 11 Officer Bochenek testified similarly to Officer Partyka. She also testified that she observed

a woman, later identified as R.C., who was naked from the waist up, bent over on the ground,

and an African American man holding her from behind. The man was beating her in thehead.

Both Bochenek and Partyka chased the man but failed to catch him. After the chase, Bochenek

returned to the gas station and interviewed R.C. During the interview, R.C. stated thather ex-

boyfriend, petitioner, caused her injuries. Bochenek did not smell alcohol on R.C. and shedid not

appear drunk.

¶ 12 ASA Kremin testified that on November 25, 2011, she and Detective Earls met with R.C. and

took her written statement regarding the events of the evening in question. R.C.’s statement, which

Kremin read aloud, was published at trial.

¶ 13 According to the statement, R.C. broke up with petitioner because he beat her with a crowbar

in November of 2010. On the evening of September 30, 2011, R.C. agreed to meet petitioner at

a gas station because he said he had clothes for their children. At the gas station, petitioner

dragged her by her hair into his vehicle. There, petitioner told R.C. that, because she must be

having sex with her new boyfriend, she was going to have sex with him. Petitioner thenripped

R.C.’s shirt off and tried to unbutton her pants. R.C. stated that she believed petitioner was going

to rape her, so she kicked him. When she did so, petitioner stumbled out of thecar. R.C.

attempted to escape, but petitioner grabbed her, punched her in the face and stomped on her head

with his feet. Petitioner also threatened to “put a bullet in her head.” Petitioner

4
1-19-0566

continued to beat R.C. until a gas station security guard approached them and told petitioner to

stop. Petitioner told the security guard that it was none of his business and continued to beat R.C.

Several minutes later, police arrived at the gas station and petitioner fled. When police arrived,

R.C. was naked from the waist up, and had bruises on her face, head, and body. R.C. indicated

that she was not under the influence of drugs or alcohol.

¶ 14 Detective Timothy Earls testified similarly to ASA Kremin. He also testified that he spoke

to R.C. before Kremin took her statement, and that R.C.’s statement to him regarding the incident

was consistent with her subsequent written statement.

¶ 15 Thomas Rudolph testified for the defense that he was working at the gas station in question

on the evening of September 30, 2011. Rudolph stated that he first became aware of the incident

after police arrived at the gas station. He denied that he saw a man and a woman outside of the

station, and that he told the man to leave the woman alone. On cross-examination, Rudolph

testified that he knew petitioner by his nickname “Fudge.”

¶ 16 In finding petitioner guilty of attempted aggravated criminal sexual assault, the trial court

stated:

“In a case like this you kind of think back, what ever [sic] happened to the good old days;

bring the girl candy, flowers, have a glass of wine, go out for dinner someplace, that’s

how I thought things used to be. Sex in a gas station, doesn’t quite seem something that

a person would want to do necessarily and someone trying to force someone to have sex

is not necessarily totally a sexual encounter, its sometimes to show the person, I want

something, you’ve got it, I’ll take it. It’s a show of force basically. It’s not like the candy

and flowers and out for a glass of wine type of thing.”

¶ 17 The court acknowledged that R.C. was a reluctant witness who wanted to forgive
5
1-19-0566

petitioner for his actions. In discussing the events as R.C. described them in her statement to the

State’s attorney, “before her so-called recantation,” the trial court commented: “That hardly

sounds to me like a romantic interlude, pulling off her blouse, pulling off her bra, trying to

unbuckle her pants or whatever, pull her pants down or unbuckle them at least, and laying on top

of her in a van in a gas station.” The court found that R.C.’s affidavit and testimony “mean[t]

nothing whatsoever,” and was simply an attempt by R.C. to help petitioner and mend their

troubled relationship. The court further found that the credible evidence it heard did not come

from R.C., but rather from the witnesses, who arrived at the scene, saw the events unfold, and

heard what R.C. said.

¶ 18 At sentencing, the State introduced certified copies of petitioner’s two prior convictions,

which rendered him subject to sentencing as a Class X offender. The trial court sentenced

petitioner to 15 years’ imprisonment and awarded petitioner 318 days of presentence custody

credit.

¶ 19 On direct appeal, petitioner contended that the State failed to prove him guilty beyond a

reasonable doubt of the aggravated criminal sexual assault of R.C. because the evidence presented

came exclusively from R.C.’s prior statement, which she disavowed in an affidavit and on the

stand. Petitioner also argued that her original statement to police was uncorroborated. In affirming

petitioner’s conviction, this court declined to substitute its judgment for that of the trialcourt on

matters of credibility and found that “R.C.’s original statement, especially when combined with

the testimony of the police officers, was sufficient to sustain petitioner’s conviction for attempted

aggravated criminal sexual assault.” Gaston, 2014 IL App (1st) 123387-U, ¶ 19.

¶ 20 On July 29, 2014, petitioner filed the instant pro se petition for postconviction relief,

6
1-19-0566

alleging that: he was denied his constitutional right to a fair trial because the trial court engaged

in extrajudicial findings; he received ineffective assistance of appellate counsel based on

counsel’s failure to raise the issue of the trial court’s extrajudicial findings on direct appeal;

received ineffective assistance of trial counsel related to petitioner’s decision not to testify and

counsel’s advice during plea negotiations; and he was actually innocent of the attempted

aggravated criminal sexual assault based on R.C.’s affidavit.

¶ 21 To support his allegation of ineffective assistance of counsel during plea negotiations,

petitioner attached an affidavit attesting that:

“Also, prior to trial, my attorney advised me not to accept the 7-year plea offer

because [R.C.] signed an affidavit, so there was no way the judge could convict me of

attempted sexual assault.

[Defense counsel] even led me to believe that if I were to accept the State’s plea

offer, I would have to serve 85 percent of my prison sentence. Had I known that I wouldonly

have to serve 50 percent of that 7-year sentence I would have been more vocal in regards to

accepting the State’s offer.

Even though I wanted to consider accepting the plea my attorney advised me not

to accept the State’s plea offer because [R.C.] was the only person who could convict me.

So my attorney protested against the plea.

That my attorney misled me to believe that I was facing 4-to-15 years in prison

when in reality I was actually facing 6-to-30 years in prison. But, because I was not

properly admonished by the judge and my attorney misled me regarding the maximum

sentence range, I further rejected the State’s offer of 7-years.” (Internal paragraph

numbering omitted.)

7
1-19-0566

¶ 22 Petitioner’s postconviction petition was assigned to the judge who presided over his trial.

Before the court ruled on his petition, petitioner filed a motion for substitution of judge. In the

motion, petitioner argued that, because his postconviction petition alleged that the trial judge made

extrajudicial findings during the pendency of his trial, the judge was an adverse party and could

not render an impartial ruling on his postconviction petition. A different circuit court judgedenied

petitioner’s motion for substitution after finding that petitioner did not show that the judge, who

presided over his trial, was prejudiced against him.

¶ 23 On October 17, 2014, the circuit court issued a written order dismissing petitioner’s pro

se postconviction petition as frivolous and patently without merit. In the order, the court found

that petitioner’s claim regarding extrajudicial findings lacked merit because the “comments

referred to by [petitioner] are comments by the court made after hearing all the evidence, as to

the courts [sic] findings of fact and reasonable inferences based on the evidence.” The court also

noted that petitioner’s allegation of judicial prejudice was set forth in his motion for substitution

of judge, which was denied. Because the court found that his claim relating to the extrajudicial

findings lacked merit, the court concluded that his claim of ineffective assistance of appellate

counsel, based on counsel’s failure to raise this issue, was also meritless. The circuit court also

found “no support in the record” for petitioner’s claim that he received ineffective assistance of

trail counsel during guilty plea negotiations. In reaching this conclusion, the court noted that

petitioner’s “claims are belied by the record,” where, according to the court, the only mention of

a potential plea offer occurred on April 2, 2012, when the State indicated that the parties were

“trying to see if [they] [could] work this out.” Petitioner appealed.

¶ 24 On appeal from the dismissal of his postconviction petition, petitioner argued that the

trial court erred in dismissing his petition because he presented an arguable claim of ineffective

8
1-19-0566

assistance of counsel during plea negotiations, and because he presented an arguable claim of

ineffective assistance of appellate counsel based on his appellate counsel’s failure to argue that

he was denied a fair trial because the trial court engaged in extrajudicial findings. The State

conceded that the trial court erred in summarily dismissing petitioner’s postconviction petition

because petitioner had presented an arguable claim of ineffective assistance of trial counsel

during plea proceedings, but the State did not concede that appellate counsel was ineffective for

failing to argue that the trial court engaged in extrajudicial findings. This Court agreed that

petitioner presented an arguable claim of ineffective assistance of trial counsel during plea

negotiations and remanded the case for second stage postconviction proceedings. People v.

Gaston, 2017 IL App (1st) 143631-U. Because the State conceded that the case needed to be

remanded on the first issue, this Court did not address petitioner’s claim of error regarding the

ineffectiveness of his appellate counsel. We also granted petitioner’s request that the matter be

reassigned to a different judge on remand.

¶ 25 On November 21, 2017, the case was assigned to Judge Petrone. Petitioner’s

postconviction counsel filed an appearance on behalf of petitioner on January 22, 2018. On January

29, 2018, postconviction counsel appeared before the trial court but the court did not have the file

and the case was continued. On March 7, 2018, the trial court again did not have its file and the

case was continued. On March 14, 2018, the trial court found the file and told postconviction

counsel that it would make a copy of everything that was in the file for him by thenext court date

on March 21, 2018. The postconviction common law record does not contain a court sheet for

March 21, 2018, and the postconviction record does not contain a transcript for that date either. A

review of the Events and Orders of the Court section of 11CR2060101 on the Clerk of the Circuit

Court of Cook County’s website,

9
1-19-0566

https://cccportal.cookcountyclerkofcourt.org/CCCPortal, shows that on March 21, 2018, the case

was continued to March 27, 2018.

¶26 On March 27, 2018, the trial court stated on the record that it had the file and continued

the case until April 20, 2018. The case was called on April 13, 2018, and the trial court wrote on

the court sheet “missing file again” and the case was continued to May 3, 2018. Although the

postconviction common law record does not contain a court sheet for April 20, 2018, nor for May

3, 2018, and the postconviction record does not contain a transcript for those dates either, under

the Events and Orders of the Court section of 11CR2060101 on the Clerk of the Circuit Court of

Cook County’s website, https://cccportal.cookcountyclerkofcourt.org/CCCPortal, it shows that

on April 20, 2018 the case was continued to May 3, 2018, and on May 3, 2018, the case was

continued until May 21, 2018.

¶27 On May 21, 2018, postconviction counsel stated he had already filed his 651(c)

certification with the clerk’s office, but because the court did not have its file, he tendered a copy

of his 651(c) certification, dated May 15, 2018, to the court. The court then made a duplicate file

so the case could move along. Postconviction counsel requested the date of June 20, 2018, but the

trial court wrote June 15, 2018, on the court sheet. On June 15, 2018, the case was continued until

July 20, 2018.

¶28 On July 2, 2018, the State filed a motion to dismiss ’s postconviction petition. Argument

was heard on the motion on December 5, 2018. Before making his argument, postconviction

counsel stated, “Judge, let me just briefly state that the in this case a very detailed pro se petition

was filed which we’ve adopted.” The case was continued until January 16, 2019, where further

arguments on the petition were heard. The trial court ultimately dismissed the postconviction

petition at the second stage, finding: 1) that petitioner’s trial counsel was not ineffective, 2) that

10
1-19-0566

his appellate counsel was not ineffective for failing to raise the issue of ineffective assistance of

trial counsel, 3) that petitioner’s claim that the trial evidence was insufficient to prove him guilty

beyond a reasonable doubt was res judicata, 4) that his claim that he is actually innocent based on

newly discovered evidence of two witnesses fails because petitioner did not include affidavitsfrom

those witnesses, 5) that his claim that the trial court engaged in extrajudicial findings was res

judicata because it was already raised on appeal, and 6) that the affidavit from R.C. was not new

evidence that showed he was actually innocent because R.C. had already recanted at trial and was

cross examined. Petitioner has appealed from this judgment.

¶ 29 ANALYSIS

¶ 30 Petitioner first argues that his postconviction petition should not have been dismissed at

the second stage because he “made a substantial showing that appellate counsel was ineffective

for failing to argue that findings made by the trial court demonstrated judicial bias.” Specifically,

petitioner claims that the trial court “interjected and considered its own opinions about romantic,

sexual encounters during the finding of guilt, and specifically considered this improper evidence

in regard to [R.C.’s] testimony about her sexual encounter with Gaston” in finding him guilty.

¶ 31 The Act provides a three-stage method for petitioners to “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.” People v. Hodges, 234 Ill. 2d 1, 9-10 (2009). Petitioner's petition was

dismissed at the second stage of proceedings, in which counsel is appointed to represent the

petitioner if necessary, and the State is permitted to file responsive pleadings. People v. Edwards,

197 Ill. 2d 239, 245-46 (2001). At the second stage of postconviction proceedings, “the circuit

court must determine whether the petition and any accompanying documentation make a

substantial showing of a constitutional violation.” Id. at 246. “[A]ll well-pleaded facts that are

11
1-19-0566

not positively rebutted by the trial record are to be taken as true.” People v. Pendleton, 223 Ill. 2d

458, 473 (2006). The second stage of postconviction review tests the legal sufficiency of the

petition. People v. Domagala, 2013 IL 113688, ¶ 35.

¶ 32 “The inquiry into whether a post-conviction petition contains sufficient allegations of

constitutional deprivations does not require the circuit court to engage in any fact-finding or

credibility determinations,” as such determinations are made during the evidentiary third stage of

postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 385 (1998). “An evidentiary

hearing is only required when the allegations of the petition, supported by the trial record and

accompanying affidavits, make a substantial showing of a violation of a constitutional right.”

People v. Flowers, 2015 IL App (1st) 113259, ¶ 31. In reviewing the second-stage dismissal of a

postconviction petition, this court generally reviews de novo the circuit court's decision.

Pendleton, 223 Ill. 2d at 473.

¶ 33 To prevail on a claim of ineffective assistance of appellate counsel under Strickland v.

Washington, 466 U.S. 668 (1984), a petitioner must allege facts showing that failure to raise an

issue on appeal was objectively unreasonable and that counsel's decision prejudiced petitioner.

People v. Enis, 194 Ill. 2d 361, 377 (2000). Unless the underlying issue has merit, a petitioner

cannot be considered to have suffered prejudice from appellate counsel's failure to brief that

issue. People v. Childress, 191 Ill.2d 168, 175 (2000).

¶ 34 The underlying issue here has no merit and therefore petitioner suffered no prejudice. The

trial court, as the trier of fact, is presumed to know the law and to have considered only competent

evidence in determining the case on the merits. People v. Koch, 248 Ill. App .3d 584 (1993). To

rebut this presumption, the record must affirmatively show that the trial court actuallyused the

evidence improperly as alleged. Id.

12
1-19-0566

¶ 35 Due process does not permit [a trial judge] to go outside the record, except for matters of

which a court may take judicial notice or conduct a private investigation in a search for aids to

help him make up his mind about the sufficiency of the evidence.” People v. Yarbrough, 93 Ill.

2d 421, 429 (1982). “A trial judge does not operate in a bubble; [he] may take into account [his]

own life and experience in ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963

(2007). Reversal is only necessary when a trial court's reliance on matters outside the record is

prejudicial to one of the parties. People v. Banks, 102 Ill. App. 3d 877, 882 (1981). As such,

“[r]eliance on information found [outside] the record is not reversible error where there is no

evidence that it either misled or entered into the trial court's determination.” Id. A trial court will

be accorded every presumption it considered only admissible evidence in reaching a conclusion.

People v. Wallenberg, 24 Ill. 2d 350 (1962). “This assumption will be overcome only if the record

affirmatively demonstrates the contrary, as where it is established that the court's finding rests on

a private investigation of the evidence, or on other private knowledge about the facts in the case.”

People v. Tye, 141 Ill. 2d 1, 26 (1990).

¶ 36 In announcing the verdict, the trial court commented:

“In a case like this you kind of think back, what ever happened to the good

old days; bring the girl candy, flowers, have a glass of wine, go out for dinner

someplace, that’s how I thought things used to be. Sex in a van in a gas station,

doesn’t quite seem something that a person would want to do necessarily and

someone trying to force someone to have sex is not necessarily totally a sexual

encounter, it’s sometimes to show the person, Iwant something, you’ve got it,

I’ll take it. It’s a show of force basically. It’s not like the candy and flowers and

out for a glass of wine type thing.

13
1-19-0566

And also, I point out, this is not a case [R.C.] versus Elbert Gaston, it’s not

a civil case where the victim comes in and says; ah, forget about it, I don’t want

to bother with this anymore. This is a criminal case, People versus Elbert Gaston.

[R.C] is merely a witness in this case; albeit, a reluctant witness in this case.

Apparently she’s trying to get a degree or whatever, working on a degree

or something in criminal justice, that seems rather odd looking at the

circumstances of this case. I always thought criminal justice meant if the State

proves the charges beyond a reasonable doubt, the person is found guilty by a

judge or jury, that’s justice. The State charged the man, Judge, jury said, not

convinced beyond a reasonable doubt, the petitioneris discharged, that’s justice.

It doesn’t seem like it’s justice when someone who’s a victim of a crime,

has to be recorded on paper somewhere to establish they were a victim of a crime.

That’s basically one of the reasons you have 115-10.1, for a witness like[R.C.].

A recanting witness, who after a period of time goes by, she’s willing toforgive

and forget. Bad things happened to me on October 1, 2011, even a little before

that, however time has gone by, I went to see him in the jail, communicated with

each other, he’s the father of three of my four children; ah, I’m willing to forgive

and forget at this point.

However, it’s not [R.C] versus Elbert Gaston, it’s the charge brought by

the State; the State proves the charges to, at least in part, to deter othersfrom

committing crimes like this. The fact that she’s willing to forgive andforget,

that’s up to her, I’m not concerned with her forgiving and forgetting.

This was hardly a match made in heaven between Elbert Gaston and

14
1-19-0566

[R.C.]. They were together for a long time, from 1999, they had three children

together, pretty much little ones, at least the last one or two were little ones. And

things got a little rocky on occasion between Elbert Gaston and [R.C.].

And on various occasions she would take him back. She admits that on

one occasion, although she says it was a lie, for some nonsensical reason it was

a lie, that he hit her with a tire iron at some point, it’s in the testimony, she

admitted telling the police that, she said it didn’t happen, but told the police that’s

what occurred. And yet, after the incident, had (sic) they’re back together and

things go on and it comes to the evening we’re talking about where there is a lot

of calls and ultimately she agrees I’ll meet you some place so he can drop off

some stuff for three of the four kids, he had (sic) she had three kids with him.

The statement of the State’s attorney, I don’t want to meet him some

place privately, I’ll meet him in a public place, in a gas station. One wouldhardly

expect in a public gas station at night some guy is going to do something bad to

a person like [R.C.].

When they get there, she says basically she got up to the van, they’re

having a few beers, there is some other liquor of some sort or another and they

start the touchy-feely stuff, according to her. And sort of to entice his interest,

he takes off her blouse and her brassiere, and she’s there in thevan naked from

the waist up trying to entice Elbert Gaston.

Her statement to the State’s attorney in November of 2011 before her

affidavit, before her so-called recantation then, is when they got to the -- she met

him at the gas station, however she got there somehow or another,and at some

15
1-19-0566

point he says to her, I hear you got a boyfriend or something now, I know you’re

having sex with him, so therefore you’re going tohave sex with me. Elbert

Gaston knows what he likes, he’s a man that won’t take no for an answer. You

have another boyfriend now, you’re having sex with him, well, have sex with

me.

And then she has to get the man off of her somehow or another, otherwise

there would have been a completed rape at that point in the car. It’s rather bold

in a public place in a gas station somebody could walk by, somebody could drive

by, somebody could walk around the car, somebodywho worked in the gas

station. But Elbert is a man who knows what he likes and what he likes is he

wants to have sex with this woman, he had sex with her before, they have three

children together.

And she kicks him and he basically sort of falls out or stumbles back out

of the car and it’s still not over with at that point. We have the effortby him to

pull her by the hair and he knocks her down.

The testimony of the police officer who first gets there, they get there

together but the one that testified first, the male officer, sees a man with a white

T-shirt, he can’t identify Gaston being that person, but he identifies a male with

a white T-shirt who appears to be kicking at the person on the ground.And the

person owing is [R.C.]. I don’t think anybody identified her at that point, but

circumstantially we know it’s the same person.

At some point the police come back and she’s there, by that time I think

someone gave her something to put on other that standing there naked from the
16
1-19-0566

waist up in a public gas station at night. The photograph shows you can see she

was clearly pummeled a number of times and stomped. The physical injuries

shown to [R.C.] show or corroborate what she said in her statement as to what

occurred between she and her former boyfriend, whatever you want to call him,

former boyfriend children’s [father], whatever you want to call Elbert to her.

And here the cases kind of always amazes you to some extent, I would

almost be willing to bet, it’s not that it’s part of my findings at all, if he walked

out of here today, he’d be in her house tonight. She’d take him back glowingly.

As she said when she testified, we’re trying to workthings out, after all that.

Her affidavit means nothing whatsoever, it’s an attempt by her to help

out Elbert Gaston. And after all, he’s the father of three of her children. At this

point she wants to forgive and forget. Bad things happened that night but ah, it’s

all right, we’ll work it out. Maybe they will work it out at somepoint or another.

Although, as I said before, it’s not exactly a match made in heaven, but

if she wants him back and he wants her back, they probably deserve each other.

The credible evidence is not necessarily the evidence I heard from [R.C.].

I heard from witnesses who came to the scene and saw what they saw and heard

what [R.C.] said. That’s why we have 115-10.1, for witnesses just like [R.C.]

who are willing to forgive and forget and recant and say nothing happened.

It’s sort of a sad commentary on the criminal justice system that you

have to have victims put under oath or give statements to show they are actually

victims, because actually after a while, they sort of lose interest, don’t care

17
 1-19-0566

anymore, willing to forgive and forget. But whether she wants to forgive and

forget Elbert Gaston and what happened to her that late evening, early morning,

that’s between her and Elbert Gaston. When you do bad things, there are bad

consequences.

I guess I should feel sad for calling [R.C.] a liar in some respects, but

if that’s how she takes it, that’s how she takes it.

I find the petitioner guilty on Count No. 1, attempt aggravated criminal

assault, Count 2 merges. I’m not going to worry about kidnapping and unlawful

restraint. There’s a finding of guilty on Count 1, Count 2 merges. And the

unlawful restraint and the kidnapping are basically part of what caused or

allowed the attempt sexual criminal assault to take place. Guilty on Count 1,

Count 2 merges and Count 3 and 4 are not guilty because they really make no

difference to the case whatsoever.”

¶ 37 Petitioner argues that these statements show the trial court improperly considered evidence

not in the record, and therefore the presumption that it considered only competent evidence was

rebutted. In support of his argument, petitioner cites People v. Wallenberg, 24 Ill.2d 350 (1962).

In Wallenberg, a witness testified he travelled down a stretch of streets lookingfor a gas station to

fix his tire but did not find one. In pronouncing its judgment, the trial court remarked that, although

the witness stated that he found no gas stations along that stretch,

“ ‘I happen to know different. I don't believe his story.’ ” Id. at 354. However, no evidence

contradicting the witness's testimony was in the record. Id. The Wallenberg court ruled that the

trial court improperly made a determination based upon its private knowledge instead of on the

record before it, and therefore the presumption that the trial court considered only admissible

18
1-19-0566

evidence was rebutted. Id.

¶ 38 Unlike Wallenberg, the court here did not make determinations that contradicted the

undisputed testimony in the record. Rather, the trial court was merely discussing the evidence and

making credibility determinations based on knowledge and experience. The trier of fact is entitled

to use their knowledge and observations in life when considering the evidence presented. Thomas,

377 Ill. App. 3d at 963. We find that the trial court committed no error in making thesestatements

and therefore, appellate counsel was not ineffective for failing to raise this issue.

¶ 39 Petitioner next argues that postconviction counsel failed to comply with Supreme Court

Rule 651(c). Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Petitioner argues that postconviction counsel

failed to make an amendment to the petition that was necessary for an adequate presentation of

his claim. Petitioner also argues that at the hearing on the motion to dismiss, post-conviction

counsel argued that trial counsel did not know about the complaining witness’ recantation, when

in fact, the recantation was the central issue at trial. Petitioner claims that thisshows that counsel

did not read the record.

¶ 40 There is no constitutional right to the assistance of counsel during post-conviction

proceedings. People v. Custer, 2019 IL 123339, ¶ 30. As a matter of legislative grace, however,

the Act provides a right to a “reasonable level” of assistance. Id. A “reasonable level *** is

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

quotation marks omitted.) Id.

¶ 41 To guarantee a reasonable level of assistance, post-conviction counsel must (1) consult

with the petitioner to ascertain his contentions; (2) examine the record of the trial proceedings;

and (3) make amendments to the pro se petition necessary for an adequate presentation of the

petitioner's contentions. Id.; see also Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Substantial

19
1-19-0566

compliance with the rule is sufficient. People v. Collins, 2021 IL App (1st) 170597.

¶ 42 When postconviction counsel files a certificate attesting that they have performed the

duties required by Rule 651(c), the certificate creates a rebuttable presumption counsel provided

the reasonable level of assistance the Act guarantees. Id. ¶ 31. The petitioner then bears the burden

of overcoming that presumption by demonstrating counsel failed to substantially complywith the

rule. Id. We review de novo whether counsel substantially complied with Rule 651(c). Id.

¶ 43 In this case, postconviction counsel filed a 651(c) certificate that stated the following:

“The undersigned, on oath, as the attorney in this matter and pursuant to Illinois

Supreme Court Rule 651 (c) has consulted with by phone, mail, electronic means or in

person to ascertain his contentions of deprivation of constitutional rights, has examined

the record of the proceedings at the trial and sentencing and reviewed the original court

file. Counsel has conducted a diligent investigation into this matter and he verily believes

the facts and circumstances support the filing of this Petition and the statements in said

Petition are true in substance and in fact.”

¶ 44 Although postconviction counsel did not specifically state in the 651(c) certificate that he

“made any amendments to the petitions filed pro se that are necessary for an adequate presentation

of petitioner’s contentions,” the record affirmatively establishes that postconviction counsel

reviewed the petition and determined that no amendments were necessary. At the December 5,

2018, hearing, postconviction counsel stated, “Judge, let me just briefly state that the petitioner in

this case filed a very detailed pro se petition which we’ve adopted.” Thereafter, on January 16,

2019, postconviction counsel stated, “the Court’s determination to docket this matter and advance

it to the second stage was based on a review of the petition that was filed pro

20
1-19-0566

se by Mr. Gaston which I adopted wholly once I filed my appearance.” Postconviction counsel’s

comments to the court regarding petitioner’s pro se petition clearly show that he reviewed the

petition but determined that no amendments were necessary. There is no requirement that

postconviction counsel must amend a 's pro se post-conviction petition. People v. Spreitzer, 143

Ill. 2d 210, 221 (1991). Rule 651(c) plainly requires that appointed post-conviction counsel make

“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).

¶ 45 In a similar vein, petitioner argues that postconviction counsel failed to shape his actual

innocence claim into an ineffective assistance of trial counsel claim for failing to investigate and

call two additional witnesses, Palmer and Jackson. Palmer and Jackson provided affidavits, which

petitioner appended to his petition, stating that they knew R.C. and knew that R.C. lied about

being raped by petitioner.

¶ 46 Postconviction counsel’s failure to amend petitioner’s petition to include the claim of

ineffective assistance of counsel for failing to investigate and call Palmer and Jackson did not

prejudice petitioner in any way. The claim would have failed because it is meritless and had

postconviction counsel included this claim, it would have been dismissed. If Palmer and Jackson

had been discovered by trial counsel and were called to testify to the matters they averred to in

their affidavits, their testimony would have amounted to inadmissible hearsay. Everything they

allegedly learned about the night in question, they learned from R.C. In any event, postconviction

counsel is not required to amend a petitioner’s petition. Spreitzer, 143 Ill. 2d at 221.

¶ 47 We likewise reject petitioner’s claim that counsel did not comply with Rule 651(c)

because he did not read the record or the court file. As stated, postconviction counsel averred

21
1-19-0566

that he “examined the record of the proceedings at the trial and sentencing and reviewed the

original court file.” Petitioner specifically points to a comment postconviction counsel made

during a hearing on the State’s motion to dismiss the postconviction petition: “While she was of

course known to the petitioner and his attorney at the time of the trial, her recantation was not.”

Petitioner argues that because R.C. had recanted in an affidavit prior to testifying, and also

recanted during her in-court testimony, postconviction counsel must not have reviewed the

record.

¶ 48 Petitioner takes postconviction counsel’s statement out of context. Counsel’s entire

argument to the court was:

“I think the only two matters with which I believe it's important to make a record of and

draw your Honor's attention to are that there is in fact an assertion of actual innocence in

this case. Supported by the attached affidavit of the original complaining witness and

alleged victim in this case. While she was of course known to the petitioner and his

attorney at the time of the trial, her recantation was not.”

¶ 49 The recantation that counsel is referring to, is the very detailed and specific, 12-paragraph

affidavit by R.C. that petitioner attached to his postconviction petition in support of his actual

innocence claim. R.C.’s June 16, 2014, affidavit was one of four affidavits attached to the petition

in support of his actual innocence claim. In this affidavit, R.C. provided a very detailed, written

account of what happened on the evening in question and indicated that she lied to the police when

she gave a statement to the police on October 1, 2011 and lied when she signed a statement at the

police station on November 26, 2011. This affidavit contains more information and is more

detailed than both her initial recantation affidavit dated December 15, 2011, and her trial

testimony. The mention of R.C.’s recantation in this context in no way demonstrates that

22
1-19-0566

postconviction counsel failed to read the record.

¶ 50 Lastly, we find petitioner’s claim that postconviction counsel could not have reviewed

the court file because it was lost is belied by the record. The record shows, as petitioner admits,

that the court file was located on March 14, 2018.

¶ 51 CONCLUSION

¶ 52 For the reasons stated, the judgment of the circuit court is affirmed.

¶ 53 Affirmed.

23