People v. Williams

2023 IL App (5th) 200195-U
NOTICE
NOTICE
Decision filed 07/17/23. The
This order was filed under
text of this decision may be NO. 5-20-0195
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the

Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 15-CF-499
)
KENDALL WILLIAMS, ) Honorable
) Julie K. Katz,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Barberis concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of defendant’s motion for leave to file a postconviction
petition at the second stage is vacated where postconviction counsel failed to amend
the petition adequately to represent defendant’s claims.

¶2 Defendant appeals the second stage-dismissal of his postconviction petition. On appeal,

defendant argues that his case should be remanded for further proceedings because his appointed

counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For the

following reasons, we agree.

¶3 I. BACKGROUND

¶4 On May 15, 2015, defendant was charged by grand jury indictment with first degree murder

in violation of section 9-1(a) of the Criminal Code of 2012 (720 ILCS 5/9-1(a)(1) (West 2014)),

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in that defendant, without lawful justification and with the intent to kill, shot Kenyon Logan in the

head with a firearm, thereby causing his death on March 22, 2015.

¶5 On September 22, 2016, the parties presented a negotiated plea agreement. Pursuant to the

agreement, defendant would plead guilty to the charge of first degree murder in an amended

indictment stating defendant “injured [Logan] with a dangerous weapon,” which would eliminate

the firearm enhancement. In exchange, the State agreed to a joint sentencing recommendation of

29 years’ imprisonment to be served at 100%, followed by 3 years of mandatory supervised release

(MSR). The State further agreed to dismiss 15-CF-500, a two-count criminal indictment charging

defendant with armed robbery with firearm enhancements on those two counts.

¶6 The court admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1,

2012). Defendant replied that he was 19 years old, could read and write, was not taking any drugs

or medication, and had sufficient time to talk to his counsel about his case. He further stated that

he understood both the original and amended charges, discussed with his attorney the significance

regarding the use of the firearm, the potential length of sentence for the charge for which he was

pleading guilty, and the constitutional rights he would waive by pleading guilty. Defendant stated

that he understood there would not be a trial, and he wished to waive his trial rights and proceed

to a plea. He further stated that, except for the agreement presented by the State, no one made any

other promise or threatened him in any way for him to plead guilty.

¶7 The State provided a factual basis stating Howard Dotson would testify that he saw

defendant and Charles Christian walking down the street and they got into his car which already

contained Melvin Blue as a passenger. Dotson would further testify as to defendant’s statement

that Logan and his brother previously jumped him, and that Dotson stopped the vehicle to let

defendant and Christian out of the car.

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¶8 Charles Christian would testify that defendant held him hostage with a gun. Christian

would further testify that as they were driving, they saw Logan, defendant indicated an intent to

kill Logan, and defendant later asked Dotson to let him out of the car. Christian’s testimony would

further indicate that he did not want to get out of the car, but defendant had a gun on him and told

him to get out. He and defendant then approached Logan, shook Logan’s hand. Afterwards,

defendant injured Logan and told Christian not to snitch or he would pop him.

¶9 Natisha Johnson would testify that defendant came to her house and knocked on her door

that same evening. She would further testify that defendant appeared terrified and when she asked

defendant what was wrong, he stated he would have to kill her if he told her. The remainder of the

witness testimony addressed the arrest of defendant and statements he provided following a waiver

of his Miranda rights.

¶ 10 The court inquired whether defense counsel agreed the State had witnesses who would

testify as indicated. Counsel agreed the State had sufficient witness testimony to prove first degree

murder beyond a reasonable doubt, but stated, “We’d have some doubt of someone holding

someone hostage, or whatever it was mentioned. We wouldn’t agree to that.” Defense counsel

acknowledged that it was “not really an element of the offense” and again stated his belief that the

State could prove first degree murder.

¶ 11 The circuit court accepted the plea, dismissed the indictment, entered judgment on

defendant’s plea to the information, and sentenced defendant to 29 years in the Illinois Department

of Corrections, followed by 3 years of MSR. The court admonished defendant that the sentence

would be served at 100%, but he would get credit for time served in the county jail. Thereafter, the

court advised defendant of his appeal rights. Defendant did not file a motion to withdraw his guilty

plea or appeal the trial court’s judgment.

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¶ 12 On December 17, 2018, defendant filed a pro se postconviction petition and a supporting

affidavit. The petition alleged, inter alia, that his plea counsel was ineffective by failing to

(1) subject the State’s case to a meaningful adversarial testing and utterly failed to defend against

the charges; (2) withdraw defendant’s guilty plea despite a request from defendant and therefore

failed to preserve his right to appeal; (3) consult with experts; (4) file for financial aid for experts;

(5) file a motion to dismiss as the indictment was over 30 days and untimely; (6) file a motion to

dismiss the indictment which was based on an incompetent witness who made inconsistent

statements and texted defendant with messages that implicated the witness; and (7) ensure

defendant’s right to a speedy trial was not violated by requesting continuances without consulting

defendant prior to making the request. Defendant’s affidavit stated that during his incarceration,

he made many requests for his attorney to contact Melvin Blue and Howard Dotson, but his lawyer

never did. He further stated his lawyer “drilled into his head” that he would not win and should try

to get a deal. The affidavit stated that Blue would have testified that Blue, Christian, and Dotson

agreed to put the crime on defendant because they were all lifelong friends and defendant only

knew them for a couple of months. The affidavit further stated that if his counsel had spoken with

Blue and Dotson, he would have gone to trial, and he could have proven his innocence.

¶ 13 On March 4, 2019, the circuit court entered an order finding defendant’s postconviction

petition set forth the gist of a constitutional claim and appointed postconviction counsel. On May

30, 2019, Paul Storment III was substituted as postconviction counsel for defendant.

¶ 14 On September 3, 2019, postconviction counsel filed an amended petition for postconviction

relief. The petition alleged that defendant was denied effective assistance of counsel because his

plea counsel (1) requested continuances mostly without defendant’s appearance or consent,

violating his statutory speedy trial rights, and (2) mostly ignored defendant’s desire to proceed

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with a jury trial. The petition further alleged defendant “finally thought he had no other choice but

to plead guilty,” so he did not sit in the St. Clair County jail any longer. The petition also asserted

a claim of actual innocence, contending Christian fired the gun. It also argued that the claim that

Christian was held hostage by defendant and was not involved in the planning or execution of the

murder “was not tested at trial in this matter and was not thoroughly investigated” by either the

State or defendant’s attorneys. In support of the petition, postconviction counsel attached copies

of the orders granting continuances, notes from plea counsel’s file for defendant, plea counsel’s

correspondence to defendant, and defendant’s correspondence to plea counsel. On October 21,

2019, postconviction counsel filed a Rule 651(c) certificate, stating he consulted with defendant

“by mail and in person to ascertain his or her contentions of deprivation of constitutional rights,”

examined the record of proceedings from the guilty plea and sentencing hearings, and made

amendments to the pro se petitions necessary for an adequate presentation of defendant’s claims.

¶ 15 The State moved to dismiss the amended petition, arguing it failed to meet the Strickland

test. The State further argued that portions of the petition were rebutted by the record and

defendant’s claim of innocence was inadequately supported and based on evidence known at the

time the guilty plea was entered. Postconviction counsel filed a response, requesting a denial of

the State’s motion.

¶ 16 A hearing on the State’s motion to dismiss was held on June 5, 2020. The State argued that

the amended petition failed to make a substantial showing of a constitutional violation as it failed

to show that plea counsel’s performance fell below an objective standard of reasonableness and

resulted in prejudice.

¶ 17 Postconviction counsel argued that the petition demonstrated a constitutional violation

stemming from the ineffective assistance of plea counsel based on the asserted speedy trial

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problem, defendant’s consistent assertion of innocence, and a plausible defense that the State’s

witness was the individual who pulled the trigger. Postconviction counsel stated, “it comes down

to a question of fact that [defendant] felt compelled to plead guilty to this.” He admitted that the

record showed defendant pled guilty after full admonishments but posed that it was equally clear

that defendant was a frustrated 18-year-old, who did not know what was going on and was

following his attorney’s lead. Postconviction counsel argued that the State was jumping the gun

by filing a motion to dismiss, and he believed there were factual issues that need to be explored

regarding why defendant “went from some other person did it and I want to go to trial and I want

to get this over with” to “okay, fine, whatever, I’ll just plead guilty and accept the sentence, which

is rather extensive.”

¶ 18 Upon the court’s inquiry, postconviction counsel agreed that defendant would have faced

45 years to natural life had he proceeded to trial, the firearm enhancement was dropped by virtue

of the plea which made the potential sentencing range 20 to 60 years’ imprisonment, and defendant

was ultimately sentenced to the lower end of that range at 29 years’ imprisonment. Thereafter, the

court addressed the actual innocence claim and inquired whether defendant would still have faced

a charge of murder under an accomplice theory since defendant never denied the fact that he was

with the alleged shooter. Postconviction counsel stated that accomplice liability would imply he

was complicit and the letters to counsel indicated he was not.

¶ 19 The court addressed the decision in People v. Reed, 2019 IL App (4th) 170090, that held a

defendant could not assert a claim of actual innocence if he pled guilty. The court found invited

error doctrine applied to both his guilty plea and the voluntary waiver of the jury trial, and Reed

foreclosed an innocence claim.

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¶ 20 The court further found defendant’s argument that he had to plead guilty because plea

counsel ignored his right to a jury trial was meritless, given the fact that he was fully admonished

before pleading guilty and trial was set for 2½ weeks later. The court also addressed the right to

speedy trial, stating it was not a fundamental right, and defense counsel’s requests for continuances

would fall under trial strategy.

¶ 21 Thereafter, the court granted the State’s motion to dismiss and advised defendant of his

appeal rights. Defendant timely appealed.

¶ 22 II. ANALYSIS

¶ 23 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides

a three-stage process by which defendants may collaterally challenge their convictions and/or

sentences for substantial violations of their federal or state constitutional rights. People v.

Whitfield, 217 Ill. 2d 177, 183 (2005). At the first stage, a court will dismiss a petition if it is

“frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). If a petition is not

dismissed, the court advances the petition to second-stage proceedings and may appoint counsel

for an indigent defendant. People v. Cotto, 2016 IL 119006, ¶¶ 26-27.

¶ 24 Because the right to counsel in postconviction proceedings is statutory rather than

constitutional, defendant is entitled to the level of assistance guaranteed by the Act, which is

reasonable assistance. People v. Wallace, 2018 IL App (5th) 140385, ¶ 29. Reasonable assistance

is less than the constitutionally-required effective assistance of counsel. Cotto, 2016 IL 119006,

¶ 45. Nevertheless, “the statute contemplates that the attorney appointed to represent an indigent

petitioner will ascertain the basis of the petitioner’s complaints, shape those complaints into

appropriate legal form and present the prisoner’s constitutional contentions to the court.” People

v. Johnson, 154 Ill. 2d 227, 237-38 (1993).

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¶ 25 To ensure that defendants receive the level of assistance required by the Act, Rule 651(c)

imposes specific duties on counsel. People v. Suarez, 224 Ill. 2d 37, 42 (2007). Rule 651(c)

requires postconviction counsel to (1) consult with petitioner to ascertain his or her contentions of

deprivation of constitutional rights, (2) examine the record of the proceedings, and (3) make any

amendments to the pro se petition that are necessary for an adequate presentation of petitioner’s

contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

¶ 26 On appeal, defendant contends counsel failed to comply with Rule 651(c). Specifically, he

argues postconviction counsel failed to adequately amend the pro se postconviction petition.

¶ 27 We, however, first address the State’s contention that Rule 651(c) does not apply to new

claims asserted by counsel in the amended petition. In support, the State relies on People v. Cotto,

2016 IL 119006. Another panel from this appellate district recently rejected this argument in an

unpublished Rule 23 order, People v. Williams, 2023 IL App (5th) 210322-U, ¶¶ 32-39. 1 The State

asserts the same arguments as that in Williams, and we decline to change our position.

¶ 28 Nothing in Cotto suggests Rule 651(c) is inapplicable to a new claim raised by counsel in

an amended petition. Cotto does not regard the applicability of Rule 651(c), as it held all

postconviction petitioners—regardless of pro se status—are entitled to reasonable assistance. See

Cotto, 2016 IL 119006, ¶¶ 41-42. We acknowledge the Cotto court noted, “Rule 651(c) applies

only to a postconviction petition initially filed by a pro se defendant.” Id. ¶ 41. To support such

statement, the court cited People v. Richmond, 188 Ill. 2d 376, 381-83 (1999), which also explained

that Rule 651(c) applied when a petitioner files a pro se petition, irrespective of whether he or she

was later appointed counsel or retained private counsel. These statements offer nothing more than

1
Citing as persuasive authority pursuant to Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023).
8
to say Rule 651(c) is applicable only where the initial postconviction petition is filed by a pro se

petitioner. Cotto, 2016 IL 119006, ¶ 25. Accordingly, Cotto is not instructive.

¶ 29 The State’s argument improperly assumes new claims added by counsel in the amended

petition are not the defendant’s claims of constitutional error. “[T]he attorney-client relationship

is a fiduciary relationship.” Horwitz v. Holabird & Root, 212 Ill. 2d 1, 9 (2004). Counsel can make

decisions regarding strategy and tactics on defendant’s behalf (see People v. Phillips, 217 Ill. 2d

270, 281 (2005)), and parties are generally bound by the actions and omissions of their counsel

(Horwitz, 212 Ill. 2d at 9). While counsel is not required to add new claims to the amended petition

(People v. Davis, 156 Ill. 2d 149, 164 (1993)), when he or she does, the new claims are defendant’s

claims of constitutional error. The plain language of Rule 651(c)—that postconviction counsel

must adequately present petitioner’s “contentions of deprivation of constitutional rights” (Ill. S.

Ct. R. 651(c) (eff. July 1, 2017))—therefore requires counsel to adequately present any new claims

in an amended petition. “We fail to see how it can be reasonable assistance of counsel for an

attorney to identify claims worth pursuing but then fail to shape them into proper form.” People v.

Addison, 2023 IL 127119, ¶ 26.2

¶ 30 Whether postconviction counsel provided reasonable assistance in compliance with Illinois

Supreme Court Rule 651(c) is reviewed de novo. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).

Where, as here, counsel files a Rule 651(c) certificate, there is a presumption that the petitioner

received the representation the rule requires. People v. Profit, 2012 IL App (1st) 101307, ¶ 19.

This presumption, however, can be rebutted by the record. See Johnson, 154 Ill. 2d at 248-50;

People v. Perkins, 229 Ill. 2d 34, 52 (2007).

2
We acknowledge Addison does not address whether Rule 651(c) applies to new claims added to
an amended petition; however, we find its statement is supportive of our view.
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¶ 31 Defendant argues that the record rebuts the presumption of compliance because counsel

failed to allege the required prejudice for his ineffective assistance of counsel claims. We agree.

¶ 32 Postconviction counsel need not file an amended petition in every case. Wallace, 2018 IL

App (5th) 140385, ¶ 30. However, as noted above, postconviction counsel must adequately present

defendant’s contentions of error. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). To adequately present a

claim of ineffective assistance of counsel, the petition must allege counsel’s performance fell

below an objective standard of reasonableness and counsel’s errors resulted in prejudice. People

v. Bailey, 2020 IL App (5th) 160458, ¶ 86. To establish prejudice in the context of a guilty plea,

however, defendant must show that but for the alleged error, he would have rejected the plea and

proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Accordingly, to present defendant’s

ineffective assistance claims in proper legal form, postconviction counsel must have alleged that

defendant would have rejected the plea and proceeded to trial had plea counsel not requested

continuances and demanded a trial within the statutory speedy trial period.

¶ 33 The amended petition here lacks any allegations or facts indicating that plea counsel’s

actions resulted in the required prejudice. There is no explicit allegation that but for plea counsel’s

errors, defendant would have rejected the plea and proceeded to trial. Postconviction counsel also

failed to provide any facts to explain how continuing the case for over a year and failing to demand

trial within the statutory speedy trial period in section 103-5 of the Code of Criminal Procedure of

1963 (725 ILCS 5/103-5 (West 2018)) harmed defendant in any way.

¶ 34 The closest allegation of prejudice in the amended petition is the statement that

“[d]efendant finally thought he had no other choice but to plead guilty *** so that he did not sit in

the St. Clair County Jail any longer.” Because defendant’s actual decisions shed no light on what

he would have done (see United States v. Thompson, 27 F.3d 671, 677 (D.C. Cir. 1994) (“the

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choices that [defendant] actually made do not necessarily shed any useful light on the choices that

he would have made if he had been properly advised” (emphases in original))), the fact that he felt

like he had no choice but to plead guilty due to counsel’s actions does not imply he would have

made a different choice had counsel provided the opportunity for trial within the statutory speedy

trial period. A desire to get out of jail also does not imply that defendant would have rejected a

plea and proceeded to trial had plea counsel demanded trial within the statutory speedy trial

period.3 See People v. Morgan, 2021 IL App (5th) 200105-U, ¶¶ 27, 34 (finding counsel did not

present defendant’s ineffective assistance claim in proper legal form and failed to comply with

Rule 651(c) by failing to allege prejudice with a “nexus between the various allegations in the

amended petition and how trial/plea counsel’s inadequacies, as alleged in the amended petition,

led the defendant directly into what he termed a ‘coerced’ plea agreement”). 4 The statement

indicates—at most—that defendant did not have a choice. A right to choose is insufficient to allege

prejudice. See People v. Rivera, 2014 IL App (2d) 120884, ¶ 13. Rather, to allege prejudice under

these circumstances, the petition needed to allege defendant’s choice would have been to reject the

plea offer and proceed to trial had counsel filed a motion for a speedy trial.

¶ 35 Rule 651(c) is not merely a formality; rather it ensures that postconviction petitioners

receive proper representation when asserting their constitutional claims. Suarez, 224 Ill. 2d at 47.

Because prejudice is an essential element of an ineffective assistance of counsel claim,

postconviction counsel failed to shape defendant’s ineffective assistance of counsel claims into

3
We further note such statement—alone—is insufficient to invalidate a plea, as there is no alleged
nexus between the jail conditions and defendant’s decision to plead guilty. See People v. St. Pierre, 146
Ill. 2d 494, 507-08 (1992) (the desire to leave jail is insufficient to show defendant was coerced into
pleading guilty; rather he must “demonstrate a necessary nexus between the alleged coercive conditions at
the jail and his guilty plea”).
4
Citing as persuasive authority pursuant to Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023).
11
proper legal form. People v. Turner, 187 Ill. 2d 406, 413 (1999); People v. Dixon, 2018 IL App

(3d) 150630, ¶¶ 16, 20; People v. Jennings, 345 Ill. App. 3d 265, 273-74 (2003); People v.

McDonald, 2018 IL App (3d) 150507, ¶¶ 29-31.

¶ 36 Accordingly, the record rebuts the presumption that postconviction counsel complied with

Rule 651(c). See People v. Frank, 2021 IL App (3d) 180159-U, ¶ 16, appeal denied, 175 N.E.3d

68 (Ill. 2021). 5 We therefore vacate and remand for the appointment of new postconviction counsel

who should comply with Rule 651(c) and amend the petition as necessary. See Addison, 2023 IL

127119, ¶¶ 34, 42 (when counsel presents claims in an improper legal form, Rule 651(c) is

violated, and remand is required regardless of whether the claims have merit).

¶ 37 We also remand for the circuit court to consider the merits of defendant’s innocence claim.

Our review of a dismissal at the second stage of postconviction proceedings is de novo. People v.

Dupree, 2018 IL 122307, ¶ 29.

¶ 38 The circuit court here found Reed, 2019 IL App (4th) 170090—which held defendants who

plead guilty may not assert an innocence claim—was fatal to defendant’s innocence claim. In 2020,

while defendant’s appeal was pending, the Illinois Supreme Court criticized that finding and held

guilty plea defendants may assert an innocence claim under a new standard that the defendant

“provide new, material, noncumulative evidence that clearly and convincingly demonstrates that

a trial would probably result in acquittal.” People v. Reed, 2020 IL 124940, ¶¶ 37, 49. While the

circuit court was not privy to the Illinois Supreme Court decision before its ruling, we must find it

was in error. See People ex rel. Law v. Dix, 280 Ill. 158, 159 (1917) (“We are bound to dispose of

the case under the law in force when our decision is rendered and not as it was at the time of

judgment in the circuit court.”). As a result of this error, the circuit court did not determine

5
Citing as persuasive authority pursuant to Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023).
12
defendant’s claim on the merits. Accordingly, we find the appropriate action is to remand so that

new counsel can amend the petition in light of the new standard set forth in Reed, if necessary, and

the court can consider the claim on its merits in the first instance. See People ex rel. Hartigan v.

Northern Illinois Mortgage Co., 201 Ill. App. 3d 356, 360-61 (1990).

¶ 39 Because we remand for compliance with Rule 651(c) and consideration of defendant’s

innocence claim, we decline to resolve defendant’s argument that postconviction counsel failed to

support the petition’s claims. We, however, briefly note that reasonable assistance does not require

counsel “to engage in a generalized fishing expedition in search of support for claims raised in a

petition.” Johnson, 154 Ill. 2d at 248. It is defendant’s responsibility to provide counsel with the

information necessary to support his or her claims. Id. at 247-48. Accordingly, on remand,

defendant should provide new counsel with information necessary to support his claims, and

counsel should attach such supporting evidence, if any exists.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons, we vacate the circuit court’s judgment and remand for

appointment of new counsel, who should comply with Rule 651(c) in amending defendant’s

petition, and a new second-stage hearing.

¶ 42 Vacated and remanded.

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