People v. Willis

2023 IL App (1st) 220098-U
No. 1-22-0098
Order filed May 30, 2023
First Division
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. 06 CR 27592
)
WAYNE WILLIS, ) Honorable
) Joann F. Rosado,
Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court.
Justice Pucinski concurred in the judgment.
Presiding Justice Lavin dissented.

ORDER

¶1 Held: Reversed and remanded where the record rebuts the presumption that postconviction
counsel read the record and amended the claims pursued to conform with the Post-
Conviction Hearing Act.

¶2 Counsel need not litigate each claim in a pro se postconviction petition. But they must

amend the claims they do pursue to conform with the Post-Conviction Hearing Act. Here, counsel

pursued three ineffective assistance claims as they appeared in Willis’s petition, though the record

showed Willis had misidentified a key witness. The record thus rebuts the presumption, arising
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from the Rule 651(c) certificates, that counsel read the record and amended the claims she pursued

to conform with the Act. We reverse and remand.

¶3 Background

¶4 At the first stage of postconviction proceedings, the trial court advanced Wayne Willis’s

petition within the 90-day deadline and appointed counsel. Eight-and-a-half years later, the trial

court dismissed the petition at a second-stage hearing that Willis did not attend. On appeal Willis

challenges counsel’s performance.

¶5 Before postconviction proceedings began, Willis directly appealed his convictions for

aggravated criminal sexual assault and his cumulative term of 33 years’ imprisonment.

Unfortunately, that appeal took a protracted path. See People v. Willis, No. 1-07-1333 (May 15,

2009) (unpublished order under Illinois Supreme Court Rule 23); People v. Willis, No. 108573

(Ill. Sept. 29, 2010) (supervisory order); People v. Willis, No. 1-07-1333 (Nov. 29, 2010)

(unpublished order under Illinois Supreme Court Rule 23); Willis v. Illinois, 567 U.S. 948 (June

29, 2012).

¶6 We ultimately affirmed. We found no reversible error when assessing his contentions that

(i) the admission of DNA evidence without testimony from the relevant lab analysts denied him

his right to confrontation, and (ii) the State failed to establish the corpus delicti. See People v.

Willis, 2012 IL App (1st) 071333-U.

¶7 Willis began these proceedings by mailing a petition from the Department of Corrections.

He attacked as ineffective the assistance he received from counsel at trial and on appeal by raising

several claims. We discuss the pertinent ones. Willis also attacked the trial court’s jurisdiction to

preside over his prosecution and the propriety of the pretrial proceedings leading to his

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indictments. We need not discuss these claims because counsel’s litigation of the ineffective

assistance claims leads us to reverse and remand.

¶8 Willis supported his claims with pages from the record of his direct appeal. He also attached

a copy of a reviewing court order and hand-annotated printouts of statutes and bills.

¶9 The trial court advanced Willis’s petition to the second stage. There, two lawyers appeared

on Willis’s behalf. Assistant Public Defender Denise Avant filed a Rule 651(c) certificate shy of

four years after Willis petitioned. She certified that Willis’s filing alone “adequately states” his

claims. Later, Assistant Public Defender Camille Calabrese filed a Rule 651(c) certificate after

another about two-and-a-half years. She certified to having made amendments “necessary” to

present Willis’s claims.

¶ 10 Before filing these certificates, neither attorney filed an amended postconviction petition.

And neither certificate prompted a response from the State.

¶ 11 An additional year and a half or so passed before the State moved to dismiss Willis’s

petition. The State challenged its sufficiency, arguing (i) the absence of a verification affidavit

certifying Willis brought his claims truthfully and in good faith; (ii) the absence of affidavits,

records, or other evidence supporting Willis’s factual claims; and (iii) the sufficiency of Willis’s

legal claims.

¶ 12 After meeting with Willis, Calabrese filed a verification affidavit: “I, Wayne Willis, a

prisoner incarcerated in Hill Correctional Center, have read and understand the above Petition for

Post Conviction Relief. All the facts presented [are] true and correct to the best of my recollection.”

Calabrese intended the affidavit to address the State’s first and second contentions and said so at

the hearing on the motion to dismiss.

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¶ 13 Before the hearing, Calabrese attached Willis’s affidavit to a filing she styled, “Response

to State Motion to Dismiss Pro Se Post Conviction Petition and Petitioner’s Motion to Attach

Notarized Affidavit to Pro Se Post Conviction Petition.” In it, she recounted her and Willis’s failed

efforts at communicating. She also recounted having “physically obtain[ed] the correctly notarized

affidavit.”

¶ 14 Affidavit in hand, Calabrese amended Willis’s pro se petition, “Counsel reasserts all

arguments in the Petitioner’s pro se post conviction proceeding * * * [and] requests that said

notarized affidavit be incorporated into Petitioner’s pro se post conviction petition[.]”

¶ 15 Below that, she stated, “Counsel reasserts all of Petitioner’s claims contained in his pro se

post conviction petition for which counsel did file a 651(c).” (Emphasis added). She did not

elaborate. Years earlier, her Rule 651(c) certificate did not limit her efforts to certain claims. In

full, she certified:

1. I have consulted with the Defendant/Petitioner Wayne Willis, by mail to

ascertain his/her contentions: in addition, I have discussed the case via prison phone

call(s).

2. I have examined the report of proceedings at [trial], appellate material, and court

files and have conducted interviews necessary to investigate Defendant/Petitioner’s

contentions, as well as records of court proceedings.

3. I have made any amendments to [the] motion necessary for the adequate

presentation of Defendant/Petition’s contentions and defects in same.

¶ 16 APD Avant likewise did not limit her certification:

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1. I have consulted with the petitioner, Wayne Willis, by letter and telephone, to

ascertain his contentions of deprivations of constitutional rights;

2. I have reviewed a copy of the petitioner’s transcript, presided over by the

Honorable Thomas Gainer;

3. I have also reviewed the opening brief, State brief, reply brief, Petition for Leave

to Appeal, and the Appellate Court decision in cause No. 1-07-1333 and briefs in

support of and opposition to Petition For writ of Certiorari to the United States

Supreme Court;

4. I have spoken with trial counsel, Sharon Sims, and attempted on two separate

occasions to reach co-counsel and former Assistant Public Defender, Andrew T.

[Northrup], now in the Maryland Public Defenders Office;

5. I have not prepared a Supplemental Post-Conviction Petition, as petitioner’s pro

se petition adequately states his claims of deprivation of his constitutional rights.

¶ 17 Read together, these certificates cataloged consultations with Willis (and with one of two

trial attorneys, as related in Avant’s certificate), examinations of pertinent filings and transcripts,

and decisions not to amend Willis’s pro se petition.

¶ 18 The crux of Willis’s petition concerned claims of ineffective assistance of counsel. Willis

raised all claims through that lens. Critical support for three ineffective assistance claims pertinent

here appeared in an attachment, “Appendix E. ‘Brady Evidence.’”

¶ 19 On appeal, the parties refer to this attachment as “unspecified” and “unidentified.” Yet, the

attachment appears as a single page from a pretrial motion styled “Motion to Bar Witness

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Testimony.” This motion appears in the impounded common-law record Willis prepared for this

appeal. On this single page, Willis highlighted:

“[T]he defense believes that Ms. Rosier and Ms. Lombatos are neither deceased nor

unwilling to answer to a state subpoena and that the State is refusing to call her to

insulate her from any cross-examination as to her criminal conduct while she

worked for Orchid Cellmark and the Illinois State Police, respectively.”

¶ 20 In his petition, Willis alleged that trial counsel provided ineffective assistance by: (i) failing

“to interview and subpoena two of the State’s witnesses once the State refused to call the two

expert witnesses”; (ii) failing to investigate a Brady violation after “finding out that the prosecutor

was bringing in *** substitute witnesses, in an attempt to insulate Ms. Rosier and Ms. Lombatos

from cross examination as to her criminal conduct while she worked for Orchid Cellmark, and the

Illinois State Police”; and (iii) failing to demonstrate “the evidence that was being suppressed by

the state was favorable[.]” In addition, Willis attacked appellate counsel for failing to raise these

claims.

¶ 21 Moving to dismiss, the State attacked Willis’s claims, describing them as lacking

“sufficient facts to which [it could] respond.”

¶ 22 At trial, the State argued DNA extracted from the complainant matched a DNA profile

obtained from Willis. To prove this, the State called Dr. Jennifer Reynolds to testify about

reviewing the work of two non-testifying Cellmark analysts, Leslie Roacher and Ellie Sammon.

That these analysts would not testify was a point of contention between the parties. Willis’s two

trial attorneys moved to bar Dr. Reynold’s testimony. In a written motion, they cited reporting on

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fraud inside labs across the country to argue the trial court should not presume that the analysis

would be reliable evidence. But they misidentified the analysts as “Ms. Rosier and Ms. Lombatos.”

¶ 23 Willis’s single page and petition highlighted this mistaken passage to support his

postconviction claims that the State covered up misconduct in its investigation and that his trial

attorneys did nothing about it.

¶ 24 The trial court granted the State’s motion to dismiss. It agreed the petition lacked factual

support for its legal claims, noting it saw no “additional information or evidence from anybody

saying this is what would have happened instead.” Also, the trial court rejected all claims of

ineffective assistance on their merits and mentioned the Brady claim specifically, finding, “There

doesn’t seem to be any Brady violation that was proven or any new information that proved in fact

there was a Brady violation at this point in time.”

¶ 25 Analysis

¶ 26 Willis argues postconviction counsel provides a petitioner with reasonable assistance by

choosing one of two options: (i) litigating or (ii) moving to withdraw. Here, litigating would have

required the APDs to “make the amendments necessary to adequately present [] Willis’[s] claims,

provide required documentation, or explain its absence.” Moving to withdraw would have required

them to “explain why [Willis’s] claims are frivolous.” But in Willis’s view, they did neither and

“stood on” his claims, thus providing unreasonable assistance. And Willis contends this court may

not presume otherwise because the Rule 651(c) certificates did not “substantially comply” with

that rule.

¶ 27 The State disagrees with both contentions. The State defends the sufficiency of the Rule

651(c) certificates and adds that Willis has failed to rebut the presumption arising from them,

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namely, that both attorneys provided Willis with reasonable assistance. The State also argues

counsel need not litigate claims that lack merit. In the State’s view, Willis falsely excludes another

option available to counsel, “where no discernible amendments would have advanced petitioner’s

claims, counsel may reasonably choose to stand on the pro se petition.”

¶ 28 The parties recognize their positions track a current split in appellate court caselaw on how

to apply two Illinois Supreme Court decisions: People v. Greer, 212 Ill. 2d 192, 211-21 (2004)

(holding, appointed counsel may move to withdraw after determining petition frivolous and

patently meritless), and People v. Kuehner, 2015 IL 117695 (holding, counsel must explain why

claims lack merit when moving to withdraw after judicial determination that petition neither

frivolous nor patently meritless). Compare, e.g., People v. Bass, 2018 IL App (1st) 152650 ¶¶ 17,

22 (rejecting claim that counsel’s failure to either amend the petition or withdraw deprived

petitioner of reasonable assistance) with People v. Pace, 386 Ill. App. 3d 1056, 1063 (2008)

(finding error where counsel pursued “another option” and trial court permitted counsel to dismiss

client’s petition and refused to re-instate petition at petitioner request). We note, parenthetically,

that the supreme court may soon resolve this dispute. People v. Huff, 2022 IL App (1st) 201278-

U, pet. for leave to appeal allowed, No. 128492 (Sept. 28, 2022).

¶ 29 But this is not a case about whether appointed counsel may stand on a pro se petition.

Calabrese pursued all claims in the pro se petition by amending Willis’s petition in response to the

motion to dismiss. Thus, this case concerns reasonable assistance and compliance with Rule 651(c)

duties during active litigation.

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¶ 30 Before we address this point, we consider and reject Willis’s contention that the Rule

651(c) certificates did not suffice to raise a presumption that counsel provided reasonable

assistance.

¶ 31 Petitioners like Willis are entitled to assistance when litigating their petitions at the second

stage. People v. Smith, 2022 IL 126940, ¶ 13 (citing Greer, 212 Ill. 2d at 204). Together, the Act

and Supreme Court Rule 651 “ensure that post-conviction petitioners in this State receive a

reasonable level of assistance[.]” Smith, 2022 IL 126940, ¶ 13 (citing People v. Owens, 139 Ill. 2d

351, 359 (1990)).

¶ 32 Rule 651 (c), “Record for Indigents; Appointment of Counsel,” provides:

The record filed in [the trial] court shall contain a showing, which may be made by

the certificate of petitioner's attorney, that [(i)] the attorney has consulted with

petitioner by phone, mail, electronic means or in person to ascertain his or her

contentions of deprivation of constitutional rights, [(ii)] has examined the record of

the proceedings at the trial, and [(iii)] has made any amendments to the petitions

filed pro se that are necessary for an adequate presentation of petitioner's

contentions.

¶ 33 The filing of a Rule 651(c) certificate suffices to create a presumption on appeal that a

petitioner received reasonable assistance of counsel. Smith, 2022 IL 126940, ¶ 29.

¶ 34 Both APDs filed certificates stating they had complied with Rule 651. Read together, and

in context, these certificates catalogued their consultations with Willis (and with one of two trial

attorneys), examinations of pertinent filings and proceedings, and decisions not to amend Willis’s

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pro se petition. Either certificate, alone, created a presumption that defendant received reasonable

assistance. Id. ¶¶ 12, 29-30, 38.

¶ 35 Nonetheless, Willis attacks the certificates as failing to replicate the language of Rule 651.

The premise of Willis’s argument finds no support in the text of the rule. Subsection (c) requires

a showing of compliance to appear in the record and does not require a written certificate at all.

See also People v. Jones, 2011 IL App (1st) 092529, ¶ 24 (finding, “nothing in Rule 651(c) that

suggests the certificate is intended to be a comprehensive recounting of all of postconviction

counsel’s efforts”).

¶ 36 Even so, Willis attacks Avant’s certificate because, rather than certify that she had

“examined the record of the proceedings at the trial,” Avant certified that she had “reviewed a

copy of the petitioner’s transcript.” We reject the idea that a transcript is somehow different from

a record of the proceedings. See Ill. S. Ct. R. 323(b) (directing court reporters “who transcribe[] a

report of proceedings” to “certify to [their] accuracy”). We also note that Avant certified she had

reviewed the briefs filed on direct appeal and this court’s prior decision, not to mention the parties’

pleadings filed in the United States Supreme Court.

¶ 37 Willis likewise attacks Calabrese’s certificate because she certified that she had consulted

him to learn his “contentions,” not his “constitutional contentions.” We reject the idea that her

certification did not encompass Willis’s claims. Logically, “contentions” include constitutional

ones. And textually, Willis raised only “constitutional contentions” in his petition, the same

document Calabrese cited in her certificate.

¶ 38 But our finding that these certificates suffice to raise the presumption counsel provided

him with reasonable assistance does not foreclose Willis from attempting to refute it. Smith, 2022

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IL 126940, ¶ 38. We still must measure counsel’s certifications against the balance of their

performance presented across the record. People v. Addison, 2023 IL 127119, ¶ 26. We review de

novo an attorney’s compliance with Rule 651(c). People v. Suarez, 224 Ill. 2d 37, 42 (2007).

¶ 39 Doing so, we see why the parties mistakenly frame their dispute as whether counsel “stood

on” Willis’s pro se petition. Avant stood on the pro se petition by expressly disclaiming a need to

amend it and not amending it. Calabrese made a similar certification and, at the hearing on the

State’s motion to dismiss, purported to “stand on” Willis’s pro se petition.

¶ 40 But the record shows Calabrese’s actions and filings belied her self-characterization. She

actively litigated all pro se claims when responding to the State’s motion to dismiss. This matters

because we must look at the claims counsel chose to pursue and then measure her litigation of

those claims against what reasonable counsel would have done under similar circumstances.

Addison, 2023 IL 127119, ¶ 26.

¶ 41 Here, the State had argued for procedural default of all claims, given the absence of Willis’s

personal verification affidavit. Calabrese responded by amending the petition---specifically, by

attaching a verification affidavit and expressly “reassert[ing] all arguments contained in the

Petitioner's pro se post conviction proceeding[.]” Thus, she no longer stood on Willis’s pro se

petition, but actively litigated each pro se claim.

¶ 42 Assessing her performance, Calabrese should have properly identified the witnesses for

Willis’s ineffective assistance claims. The single page from a pretrial motion styled “Motion to

Bar Witness Testimony,” appended to Willis’s petition, included several typos, like writing

“Lombatos,” a likely misspelling of a name for a witness in a separate prosecution. (As the State

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notes, Sandra Lambatos performed forensic testing in People v. Williams, 238 Ill. 2d 125 (2010),

affirmed by Williams v. Illinois, 567 U.S. 50 (2012).)

¶ 43 Calabrese could not reasonably litigate Willis’s ineffective assistance claims without

correcting this basic factual mistake. To do so, she needed only to read the transcript where she

would have learned the correct identity of the second Cellmark analyst as Ellie Sammon. But, the

record shows she did not make this necessary amendment either. Thus, the record rebuts the

presumption that she provided Willis with reasonable assistance. Addison, 2023 IL 127119, ¶ 26.

Contrary to her Rule 651(c) certificate, the record shows she failed to examine the record of the

proceedings at the trial and amend Willis’s petition to adequately present these claims.

¶ 44 As our supreme court has repeatedly held, we do not ask whether Willis’s claims had merit.

Addison, 2023 IL 127119, ¶¶ 35, 42; Suarez, 224 Ill. 2d at 48. Given counsel’s violation of Rule

651(c), we remand so Willis can receive the limited right to counsel provided by the Act, and the

circuit court can rule on these claims. Id.; People v. Turner, 187 Ill. 2d 406, 415-17.

¶ 45 Reversed and remanded.

¶ 46 PRESIDING JUSTICE LAVIN, dissenting:

¶ 47 On appeal, defendant solely asserts that postconviction counsel was required to attach

affidavits or other documentation supporting his claims and, if counsel could not do so, she was

required to withdraw. Defendant has not argued that counsel should have amended his petition to

correct the identity of the Cellmark analysts involved in his case, notwithstanding the majority’s

undertaking to make this argument for him.

¶ 48 “Where a petition is not supported by affidavits or other evidence, a court can ordinarily

presume that postconviction counsel made a concerted effort to obtain such things in support of

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the defendant's claims but was unable to do so.” People v. Turner, 2023 IL App (1st) 191503, ¶ 44

(citing People v. Johnson, 154 Ill. 2d 227, 241 (1993)). As this court stated in Turner, “defendant’s

position fails to acknowledge that sometimes counsel’s best option is not a great one.” Turner,

2023 IL App (1st) 191503, ¶ 42. Furthermore, postconviction counsel was not required to withdraw

if she was unable to obtain supporting documents. Id. ¶¶ 56-60.

¶ 49 Here, defendant’s postconviction attorneys filed Rule 651(c) certificates, creating a

presumption that defendant received the reasonable assistance of counsel. Defendant has not

rebutted that presumption. I would affirm the trial court’s judgment.

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