2022 IL App (1st) 200045
FIFTH DIVISION
May 13, 2022
No. 1-20-0045
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County.
Respondent-Appellee, )
)
v. ) No. 13 CR 895002
)
DONALD TILLERY, ) Honorable
) Thomas Joseph Hennelly,
Petitioner-Appellant. ) Judge Presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justices Cunningham and Connors concurred in the judgment.
ORDER
¶1 Held: The petitioner received reasonable assistance from his appointed postconviction
counsel. We therefore affirm the second-stage dismissal of his postconviction petition.
¶2 Petitioner Donald Tillery appeals the second-stage dismissal of his postconviction petition,
arguing that his postconviction counsel provided unreasonable assistance in violation of Illinois
Supreme Court Rule 651(c) (eff. July 1, 2017) by failing to adequately examine the trial record
and amend his petition. We affirm.
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¶3 We discuss only the facts necessary for the disposition of the issues in this appeal. A more
thorough recitation of the facts is included in petitioner’s direct appeal. See People v. Tillery, 2016
IL App (1st) 143101-U.
¶4 Petitioner was indicted for delivery of a controlled substance and possession of a controlled
substance with intent to deliver stemming from a controlled buy conducted by Chicago police on
April 14, 2013. After a bench trial, the circuit court found petitioner guilty of both counts. The
court determined that petitioner qualified for class X sentencing based on his record and imposed
a 10-year sentence on count I, with a concurrent one-year sentence on count II. Petitioner
challenged his sentence on direct appeal and we affirmed. See id.
¶5 On December 28, 2016, petitioner filed a pro se postconviction petition in which he alleged
five claims: (1) ineffective assistance of posttrial counsel for failing to file a motion to reconsider
sentence; (2) ineffective assistance of trial counsel for failures to file a motion to quash, inform
him of an offer for a plea agreement, call certain witnesses at trial, conduct an investigation prior
to trial, and make certain objections during trial; (3) the State failed to prove him guilty beyond a
reasonable doubt; (4) the State violated Brady by failing to provide full disclosures of requested
discovery; and (5) his conviction violated the one-act/one-crime doctrine. Petitioner submitted a
notarized affidavit in support of his petition, declaring that all the facts alleged were true and
correct.
¶6 The circuit court advanced the petition to the second stage and appointed Assistant Public
Defender (APD) Tiffin Price-Horton to represent petitioner. On March 31, 2017, APD Price-
Horton appeared for a status hearing and informed the court that she had been recently appointed
and “prepare[d] some orders for the Court” to obtain petitioner’s records. In a hearing on October
20, 2017, when APD Price-Horton told the court that she was only assigned to the case “sometime
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this summer,” the court clarified that the petition had been filed in December 2016. The court
asked APD Price-Horton if she was going to file a supplemental petition and she responded that
she was either going to file a supplemental petition or a “1-51-C.” The matter was continued
several more times at status hearings during which APD Price-Horton did not appear.
¶7 On May 31, 2018, APD Price-Horton filed a certificate under Rule 651(c), certifying that
she: (1) consulted with petitioner “by letter and phone to ascertain his contentions of deprivations
of constitutional rights”; (2) “obtained and examined the transcript of his bench trial and
sentencing in this case”; and (3) did not file “an Amended Petition for Post-Conviction Relief,”
because the pro se petition “adequately sets forth the petitioner’s claims [for] ineffective assistance
of counsel and [] deprivation of his constitutional rights.” She filed an identical amended certificate
on June 12, 2018.
¶8 On October 5, 2018, the State moved to dismiss the petition. During a hearing on the
motion, APD Price-Horton stated that she wanted to file a response, and the court scheduled a
hearing on the State’s motion. APD Price-Horton did not file a response to the State’s motion to
dismiss.
¶9 At the January 14, 2019 hearing on the State’s motion to dismiss, APD Price-Horton stated
that she “reviewed both the Public Defender’s trial file as well as subpoenaed and reviewed the
Cook County hospital records to determine whether or not there was some sort of mental
impairment, perhaps, that was not addressed. I was unsuccessful. There was nothing that would
lead me to believe that.” She also stated that through her investigator, she tried to obtain witnesses
from petitioner, “but they were not forthcoming, so I was unable to investigate that which [sic] he
says in his post-conviction.” APD Price-Horton stated that the witnesses “were not investigated,
but were not tendered any mentioned [sic].” APD Price-Horton also stated that she reviewed the
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mandate from the 2014 direct appeal. She stated that she filed the Rule 651(c) certificate and stood
on what petitioner tendered to her.
¶ 10 On December 6, 2019, the circuit court granted the State’s motion and dismissed the
postconviction petition. This appeal followed.
¶ 11 ANALYSIS
¶ 12 On appeal, petitioner argues that postconviction counsel failed to comply with Rule 651(c).
He contends that the Rule 651(c) certificate was deficient because postconviction counsel failed
to certify that she examined the record of the proceedings at trial and took no action whatsoever to
properly support or amend his pro se petition into proper legal form.
¶ 13 Postconviction proceedings contain three stages. People v. Tate, 2012 IL 112214, ¶ 9. At
the first stage, the circuit court independently reviews the petition, takes the allegations as true,
and determines whether the petition is frivolous or patently without merit. Id. A petition may be
summarily dismissed as frivolous or patently without merit only if the petition has no arguable
basis either in law or in fact. Id. If the court does not summarily dismiss the petition, it advances
to the second stage, where counsel may be appointed to an indigent petitioner, and where the State
may respond to the petition. Id. ¶ 10. At this stage, the court determines whether the petition and
any accompanying documentation make a substantial showing of a constitutional violation. Id. If
no such showing is made, the petition is dismissed. Otherwise, the petition is advanced to the third
stage for an evidentiary hearing. Id.
¶ 14 Here, the petition was dismissed at the second stage of proceedings. During the second
stage of proceedings, a petitioner bears the burden of making a substantial showing of a
constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35. This stage, however, only
tests the legal sufficiency of the petition. Unless the allegations in the petition are positively
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rebutted by the record, they are taken as true, and the question to be resolved at the second stage
is whether those allegations establish a constitutional violation. Id. “In other words, the ‘substantial
showing’ of a constitutional violation that must be made at the second stage [citation] is a measure
of the legal sufficiency of the petition’s well-pled allegations of a constitutional violation, which
if proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original and
internal citation omitted.) Id. We review the circuit court’s dismissal of a postconviction petition
at the second stage de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
¶ 15 Petitioner has not challenged the dismissal of his postconviction petition on the merits.
Thus, he has forfeited any argument that his claims of constitutional deprivation were meritorious.
People v. Cotto, 2016 IL 119006, ¶ 49; Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not
argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing”).
¶ 16 A defendant does not have a constitutional right to assistance of counsel in postconviction
proceedings, and the right to appointed counsel at the second stage of postconviction review in
Illinois is a statutory creation. People v. Johnson, 2018 IL 122227, ¶ 16. Accordingly, a claim that
postconviction counsel’s performance was inadequate is not reviewed under the ineffective
assistance standard, but the lower reasonable assistance standard. People v. Custer, 2019 IL
123339, ¶ 30. Rule 651(c) outlines the steps an attorney must take to provide reasonable assistance,
including the requirement to certify her efforts in detail on the record. Id. ¶ 32; Ill. S. Ct. R. 651(c)
(eff. July 1, 2017). Specifically, the rule requires that postconviction counsel certify that she
consulted with the petitioner “to ascertain his or her contentions of deprivation of constitutional
rights,” examined the record of trial proceedings, and amended the petition as “necessary for an
adequate presentation” of the petitioner’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).
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¶ 17 “The filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that
postconviction counsel provided reasonable assistance.” People v. Profit, 2012 IL App (1st)
101307, ¶ 19. “It is defendant’s burden to overcome this presumption by demonstrating his
attorney’s failure to substantially comply with the duties mandated by Rule 651(c).” Id. We review
whether postconviction counsel substantially complied with Rule 651(c) de novo. People v. Bass,
2018 IL App (1st) 152650, ¶ 13.
¶ 18 Here, postconviction counsel filed a Rule 651(c) certificate that stated she had (1) consulted
with petitioner “by letter and telephone to ascertain his contentions of deprivations of
constitutional rights”; (2) “obtained and examined the transcript of his bench trial and sentencing
in this case”; and (3) did not file “an Amended Petition for Post-Conviction Relief,” because the
pro se petition “adequately sets forth the petitioner’s claims [for] ineffective assistance of counsel
and [] deprivation of his constitutional rights.” Because postconviction counsel filed a Rule 651(c)
certificate, she is presumed to have provided reasonable assistance to petitioner.
¶ 19 Petitioner offers no argument in either his opening or reply briefs regarding whether this
presumption has been rebutted. Instead, he argues that postconviction counsel failed to comply
with Rule 651(c). According to petitioner, postconviction counsel failed to properly review the
entire trial record and should have amended his pro se petition by putting it in proper legal form
and attaching necessary witness affidavits to support the petition. After carefully reviewing the
record, we find that petitioner has failed to overcome the presumption that postconviction counsel
provided reasonable assistance during second stage proceedings.
¶ 20 First, we address petitioner’s contention that postconviction counsel failed to comply with
Rule 651(c) because she was not sufficiently familiar with the trial record. He argues that although
counsel “may have examined the report of proceedings from the trial and sentencing, since counsel
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explicitly stated in the certificate that she examined those portions, there is no indication counsel
examined the trial common law record or the exhibits.” (Emphasis in original.)
¶ 21 The record belies petitioner’s contention. Although postconviction counsel certified that
she “obtained and examined the transcript of his bench trial and sentencing in this case,” she also
stated during the hearing on the State’s motion to dismiss that she reviewed the public defender’s
trial file and the 2014 mandate from this court on petitioner’s direct appeal.
¶ 22 “Rule 651(c) only requires postconviction counsel 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 Davis, 156 Ill. 2d at 164). Other than counsel’s language
in the certificate, petitioner has failed to show that counsel’s examination of the record was
insufficient. He does not point to any errors or misstatements in court but rather assumes that
counsel failed to substantially comply. Petitioner has not overcome the presumption that counsel
substantially complied with Rule 651(c).
¶ 23 Petitioner, however, cites People v. Blanchard, 2015 IL App (1st) 132281 to support his
argument that postconviction counsel’s Rule 651(c) certificate “does not warrant a presumption of
compliance” because “it plainly states that counsel only reviewed the ‘[r]eport of proceedings”
from trial. In Blanchard, the defendant did not argue that he had rebutted the presumption of
substantial compliance, but rather contended that postconviction counsel failed to indicate on the
Rule 651(c) certificate that counsel examined the exhibits, specifically a lineup photo and the
victim’s bank card. The failure to examine those exhibits required reversal because there, the
postconviction petition identified specific exhibits as a basis for the petition. Blanchard, 2015 IL
App (1st) 132281, ¶ 18. Petitioner in this case has not identified a similar concern, but only broadly
argued that postconviction counsel failed to review the entire record. This is distinguishable from
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Blanchard, wherein the court noted a specific reference to relevant trial exhibits at issue in the
postconviction petition. The Blanchard court also stated that “nothing in Rule 651(c) suggests that
the certificate is intended to be a comprehensive recounting of all of an attorney’s postconviction
efforts.” (Emphasis added.) Id. Petitioner simply cherry picks what he perceives to be the flaws of
postconviction counsel’s familiarity with the record without offering any argument regarding
overcoming the presumption of substantial compliance. Blanchard is not analogous to this case.
¶ 24 We find this court’s decision in People v. Richardson, 382 Ill. App. 3d 248 (2008) to be
more relevant to the issue presented here. The Richardson court held a Rule 651(c) certificate was
sufficient because postconviction counsel “consulted with [the petitioner] by letters,” “obtained
and examined the report of proceedings [in the petitioner’s] trial,” and “prepared a supplemental
petition for postconviction relief ‘augmenting [the petitioner’s] previously filed Petition.’ ” Id. at
251. The reviewing court found that counsel had substantially complied with Rule 651(c) despite
the “alleged shortcomings” of the certificate. Id. at 257. The court further observed that were it “to
find counsel’s certificate in this case insufficient to pass muster under Rule 651(c), we would be
hard-pressed to conceive of a certificate that would demonstrate counsel’s compliance, short of
one that exactly mirrors the language of the rule.” Id.
¶ 25 Here, postconviction counsel stated in her certificate that she obtained and examined the
transcript of his bench trial and sentencing in this case. Additionally, postconviction counsel
informed the circuit court that she reviewed petitioner’s trial file for her investigation of
petitioner’s postconviction claims. We find that postconviction counsel substantially complied
with Rule 651(c) regarding review of the trial record. Nothing in the record before this court
suggests that counsel failed to examine all relevant portions of the trial record pertinent to
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petitioner’s postconviction claims. Since counsel filed a Rule 651(c) certificate, petitioner has not
overcome the presumption that counsel substantially complied in this argument.
¶ 26 Next, petitioner argues that postconviction counsel also failed to comply with Rule 651(c)
by not amending his pro se petition or attaching necessary evidence in support of the petition. He
contends that this failure rendered his second stage petition subject to dismissal.
¶ 27 Postconviction counsel is under no obligation to amend a petition to pursue a meritless
claim, as such an amendment is not “necessary” per the statute. See People v. Collins, 2021 IL
App (1st) 170597, ¶ 38 (citing People v. Greer, 212 Ill. 2d 192, 205 (2004)). As our supreme court
has explained, if an amendment to a pro se postconviction petition “would only further a frivolous
or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.” Greer,
212 Ill. 2d at 205. Illinois courts have repeatedly held that “the purpose of Rule 651(c) is 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, 43-44 (2007) (citing People v. Pinkonsly, 207 Ill. 2d 555,
568 (2003)).
¶ 28 Initially, we must emphasize that not even petitioner himself argues that the dismissed
claims in his pro se petition had merit, and his failure to argue any of them before this court
supports the conclusion that postconviction counsel was not unreasonable for not amending the
petition, despite her unsuccessful efforts to obtain additional evidentiary support. See Profit, 2012
IL App (1st) 101307, ¶ 23 (“we believe that the question of whether the pro se allegations had
merit is crucial to determining whether counsel acted unreasonably by not filing an amended
petition”).
¶ 29 In Bass, postconviction counsel filed a Rule 651(c) certificate and found the petitioner’s
pro se postconviction petition adequately stated his contentions of constitutional deprivations and
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declined to amend the petition. Id. ¶ 7. The State moved to dismiss and counsel did not file a
written response. Rather, counsel stood on the petition, but informed the court that he had
attempted to obtain witness affidavits and was unsuccessful. Id. ¶ 8. The circuit court dismissed
the petition. Id. ¶ 9.
¶ 30 On appeal, the petitioner did not argue the merits of his petition and forfeited any argument
that his claims of constitutional deprivation were meritorious. Id. ¶ 10. Instead, he based his claim
for relief solely on the contention that postconviction counsel rendered unreasonable assistance by
failing to amend his petition to include witness affidavits, to explain the absence of those affidavits,
or move to withdraw pursuant to Greer. The court stated that petitioner’s argument “begs the
question since he presumes (without any support in the record) that counsel’s failure to amend his
petition was the result of some deficiency in his lawyer’s performance rather than the inability to
substantiate [his] claims.” Id. ¶ 14.
¶ 31 The record in Bass showed that postconviction counsel informed the court during multiple
hearings that he attempted to locate the potential witnesses named in the pro se petition and that
he met with petitioner and reviewed the record. Counsel ultimately stated that he interviewed three
witnesses, including two named in the petition and “ ‘was not able to get any affidavits or attach
any affidavits to the petition.’ ” Id. ¶ 15.
¶ 32 The Bass court held that postconviction counsel fulfilled all the obligations imposed by
Rule 651(c), concluding “not every petition can be amended to state a substantial constitutional
claim.” Id. ¶ 16. The court further explained:
“[I]f the lawyer appointed to represent a postconviction petitioner determines, after
fulfilling his or her obligations under Rule 651(c), that the petition cannot be
amended, defendant has received the reasonable assistance of counsel the Act
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contemplates and his entitlement to the assistance of counsel is at an end. [Cite.]
And whether appointed counsel elects to withdraw and inform the court of the
reasons why the petition lacks merit or instead elects to stand on the pro se petition,
the result is the same; defendant’s unamended petition will be dismissed.” Id. ¶ 20.
¶ 33 We find Bass to be well reasoned and agree with its conclusion. As previously observed,
the filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that postconviction
counsel provided reasonable assistance and it is petitioner’s burden to overcome this presumption.
Profit, 2012 IL App (1st) 101307, ¶ 19. Postconviction counsel filed a Rule 651(c) certificate and
stated that she worked with an investigator to obtain witnesses from petitioner, “but they were not
forthcoming,” and she was unsuccessful. Petitioner has the burden to rebut this presumption
through a showing that counsel’s conduct was unreasonable despite the efforts detailed in the
certificate. People v. Landa, 2020 IL App (1st) 170851, ¶ 46.
¶ 34 In this case, postconviction counsel chose to rest on the pro se petition, explaining that it
adequately set forth petitioner’s arguments. Accordingly, counsel’s decision to rest on the pro se
petition does not support petitioner’s claim of unreasonable assistance and, furthermore, petitioner
has failed to rebut the presumption that postconviction counsel rendered reasonable assistance in
substantial compliance with Rule 651(c).
¶ 35 CONCLUSION
¶ 36 We affirm the circuit court’s second stage dismissal of petitioner’s pro se postconviction
petition.
¶ 37 Affirmed.
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