People v. Addison

2023 IL 127119

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 127119)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

DION ADDISON, Appellee.

Opinion filed April 20, 2023.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Justices Neville, Holder White, Cunningham, and O’Brien concurred in the

judgment and opinion.

Chief Justice Theis dissented, with opinion, joined by Justice Overstreet.

OPINION

¶1 At issue is whether (1) postconviction counsel rendered unreasonable

assistance by failing to frame the issues in defendant Dion Addison’s amended

postconviction petition as ones of ineffective assistance of appellate counsel and, if

so, (2) the appellate court properly remanded the case for compliance with Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017) without considering the merits of

the petition. We answer both questions in the affirmative and therefore affirm the

appellate court’s judgment.

¶2 BACKGROUND

¶3 On February 22, 2012, defendant, Dion Addison, was charged by indictment

with unlawful possession of a motor vehicle, unlawful possession of a converted

motor vehicle, forgery, and two counts of theft. The charges arose out of his alleged

use of counterfeit money to purchase a motorcycle. He was released on bond.

Defendant failed to appear for trial and was tried in absentia.

¶4 The jury convicted defendant on all counts. The Kane County circuit court

entered judgment on the guilty verdicts and scheduled the sentencing hearing for

March 20, 2013. On March 19, 2013, new posttrial counsel filed a motion for

judgment notwithstanding the verdict or a new trial. The trial court denied that

motion and sentenced the defendant to concurrent terms of 15 years’ imprisonment

for unlawful possession of a stolen motor vehicle and five years’ imprisonment for

forgery.

¶5 Shortly thereafter, defendant was arrested. He appeared with posttrial counsel

for a hearing on his motion to reconsider sentence. The trial court denied that

motion, and defendant appealed.

¶6 On September 24, 2014, defendant spoke on the telephone with appellate

counsel. The next day, appellate counsel sent a letter to defendant memorializing

their telephone conversation. Appellate counsel told defendant, “As I mentioned

during our conversation, the only issue that I found to raise in the appeal was that

you are entitled to credit for one more day against your sentence. I wish that I could

have found an issue that would provide a basis for overturning your conviction or

reducing your sentence more substantially, but unfortunately I was unable to do

so.” Appellate counsel did not file a brief on the merits. Instead, counsel filed an

agreed motion regarding the sentencing credit. In that motion, appellate counsel

stated, “After reviewing the complete record on appeal in this case, undersigned

counsel has determined that there are no meritorious issues, except for an issue

concerning the amount of credit that should be applied toward the defendant’s

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prison sentences.” On October 23, 2014, the appellate court granted that motion

and awarded defendant two days’ credit in a minute order.

¶7 On March 25, 2015, defendant filed a pro se postconviction petition,

contending that “trial counsel was deficient in failing to give a good faith defense,

failing to investigate, argue points of evidence favorable to defendant, and give

defense theory” and that appellate counsel was deficient in failing to raise issues

and investigate. Defendant proceeded to render his constitutional claims in more

detail, raising 15 issues. In 14 of those, defendant alleged that appellate counsel

failed to raise the issue. Defendant included his own affidavit as support for his

petition.

¶8 The trial court advanced the petition to the second stage and appointed counsel

on May 15, 2015. More than two years later, on July 17, 2017, postconviction

counsel filed an amended petition. The petition asserted five claims: (1) trial

counsel was ineffective for failing to file a motion to suppress statements on

grounds of improper Miranda warnings (see Miranda v. Arizona, 384 U.S. 436

(1966)); (2) trial counsel was ineffective for failing to file a motion to suppress

statements on grounds that defendant’s statement was involuntary; (3) trial counsel

was ineffective for failing to object to expert testimony regarding counterfeit

currency when no expert was disclosed; (4) trial counsel was ineffective for failing

to argue sufficiency of the evidence where there was a discrepancy in the number

of notes recovered, inventoried, and introduced as evidence; and (5) the court erred

in giving an accountability instruction to the jury. Counsel developed each of these

claims over multiple pages of the amended petition. The petition did not assert any

claims of ineffective assistance of appellate counsel and nowhere alleged any way

in which appellate counsel was ineffective. Postconviction counsel also filed a Rule

651(c) certificate, stating that she had consulted with defendant to ascertain his

constitutional claims, she had examined the court file and trial record, and she had

made any amendments to defendant’s pro se petition necessary to adequately

present his claims.

¶9 The State filed a motion to dismiss the amended petition, arguing that

defendant’s claims were forfeited because they could have been raised on direct

appeal. Moreover, the State pointed out that defendant had failed to challenge his

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appellate counsel’s strategic decision not to raise these issues on appeal. The motion

also alleged that the petition’s claims were without merit.

¶ 10 On July 10, 2018, a hearing was held on the State’s motion to dismiss. At that

hearing, the State continued to point out that these claims could have been raised

on direct appeal and that ineffective assistance of appellate counsel had not been

alleged. The State made arguments such as:

“Again, counsel was not ineffective. And, Judge, this claim is waived

anyways, procedurally barred where defendant could have raised it on direct

appeal but did not. And the strategy of appellate counsel has not been

challenged.

***

Again, judge, this is another claim that was available on appeal and not

raised. And, again, as the strategy of counsel has not been challenged, this

claim, too, is procedurally barred.” (Emphasis added.)

Postconviction counsel presented a lengthy argument in opposition to the motion

to dismiss and never once countered the State’s assertion that she had failed to

allege ineffective assistance of appellate counsel.

¶ 11 After listening to the parties’ arguments, the only questions the trial court had

for postconviction counsel concerned the State’s forfeiture argument:

“[THE COURT]: One of the arguments that hasn’t been addressed in great

detail but is addressed in the State’s motion to dismiss is the concept of waiver.

And so could you address why you don’t believe that these issues that you

have addressed would not and could not have been raised on direct appeal?

[POSTCONVICTION COUNSEL]: Your Honor, on information and

belief, having spoken to my client, his appellate counsel represented to him that

if it wasn’t specifically argued at trial that he could not use that information.

***

[THE COURT]: *** I am just asking on the waiver argument.

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Everything that has been presented by way of the amended [postconviction

petition] are arguments that I believe could have been made on direct appeal.

Arguments that you have brought forth are all matters that were in the record.

So you don’t have to answer. I just wondered if you wished to address it.

***

[POSTCONVICTION COUNSEL]: Other than that perhaps there was the

same oversight on the appellate level as the trial counsel had.”

¶ 12 The trial court granted the State’s motion to dismiss, stating that the defendant

was not entitled to an evidentiary hearing because he “failed to make a substantial

showing of any violation of a Constitutional right.” The trial court also entered a

written order, which concluded that the defendant “failed to make a substantial

showing of a violation of a constitutional right.” Neither in open court nor in the

written order dismissing the petition did the trial court discuss the merits of

defendant’s claims. The defendant appealed, arguing that postconviction counsel

rendered unreasonable assistance in failing to file his affidavit and failing to argue

ineffective assistance of appellate counsel.

¶ 13 The appellate court reversed and remanded. 2021 IL App (2d) 180545. The

appellate court initially rejected the State’s argument that the defendant forfeited

collateral review of his conviction by failing to appear at trial. Id. ¶ 20. The court

then turned to the merits, addressing the defendant’s contention that postconviction

counsel rendered unreasonable assistance by failing to amend his pro se petition

with ineffective assistance of appellate counsel claims. Id. ¶ 27.

¶ 14 The appellate court explained that any postconviction claims that could have

been raised on direct appeal, but were not, are forfeited. Id. ¶ 28. However, the court

explained that this forfeiture may be overcome by framing the issues as ones of

ineffective assistance of appellate counsel for failing to raise the issues on direct

appeal. Id. Here, postconviction counsel failed to do so. The appellate court noted

that postconviction counsel alleged multiple claims of ineffective assistance of trial

counsel but did not address the performance of appellate counsel. Id. ¶ 29. Further,

she did not attempt to present such claims in response to the State’s motion to

dismiss, which had raised the issue of forfeiture. Id. The appellate court concluded

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that postconviction counsel rendered unreasonable assistance by failing to frame

defendant’s claims as ones of ineffective assistance of appellate counsel for failing

to raise the claims on direct appeal. Id. The court noted that in People v. Turner,

187 Ill. 2d 406, 414 (1999), this court held that a failure of postconviction counsel

to make a routine amendment to a petition in order to overcome a procedural bar is

“ ‘patently unreasonable.’ ” 2021 IL App (2d) 180545, ¶ 28 (quoting People v.

Kluppelberg, 327 Ill. App. 3d 939, 947 (2002)). Thus, the court determined that a

remand was required. The court cited People v. Suarez, 224 Ill. 2d 37, 47 (2007),

for the proposition that, where appointed counsel has not complied with Rule

651(c), a remand is required regardless of whether the petition’s claims have any

merit. 2021 IL App (2d) 180545, ¶ 30.

¶ 15 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)

(eff. Oct. 1, 2020).

¶ 16 ANALYSIS

¶ 17 The State raises two issues. First, the State argues that defendant failed to rebut

the presumption of reasonable assistance of counsel that arose from postconviction

counsel’s filing of a Rule 651(c) certificate. According to the State, postconviction

counsel was not required to pursue a meritless claim of ineffective assistance of

appellate counsel. Second, the State contends that, even if postconviction counsel

provided unreasonable assistance, defendant is not entitled to a remand unless she

can show prejudice. We review a trial court’s dismissal of a postconviction petition

at the second stage de novo. People v. Dupree, 2018 IL 122307, ¶ 29. Additionally,

when the issue concerns the proper interpretation of a supreme court rule, our

review is de novo. People v. Henderson, 217 Ill. 2d 449, 458 (2005).

¶ 18 Under the Post-Conviction Hearing Act (Act), a criminal defendant may claim

that “in the proceedings which resulted in his or her conviction there was a

substantial denial of his or her rights under the Constitution of the United States or

of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2016). The Act

provides a three-stage mechanism for a defendant to advance such a claim. See

People v. Custer, 2019 IL 123339, ¶ 29. At the first stage, the trial court must

independently review the petition within 90 days of its filing and determine whether

it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If

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the petition is not summarily dismissed, it must be docketed for further

consideration in the second stage. Id. § 122-2.1(b). At the second stage, the trial

court may appoint counsel to assist an indigent defendant. Id. § 122-4.

¶ 19 In a postconviction proceeding, there is no constitutional right to the assistance

of counsel. See Custer, 2019 IL 123339, ¶ 30. Instead, the right to counsel is a

matter of “legislative grace.” People v. Porter, 122 Ill. 2d 64, 73 (1988). That is, a

postconviction petitioner is entitled only to the level of assistance granted by the

Act, which we have labeled a “ ‘reasonable’ level of assistance” (People v. Flores,

153 Ill. 2d 264, 276 (1992)), which is less than that afforded by the federal and state

constitutions (People v. Pendleton, 223 Ill. 2d 458, 472 (2006)). We have explained

that the distinction is rational “because trial counsel plays a different role than

counsel in post-conviction proceedings.” People v. Owens, 139 Ill. 2d 351, 364

(1990). At trial, counsel “acts as a shield” to protect a defendant from being stripped

of the presumption of innocence. Id. Postconviction petitioners, by contrast, have

already been stripped of the presumption of innocence and have generally failed to

obtain relief on direct review of their convictions. Id. at 365. The petitioner, rather

than the State, initiates the proceeding by claiming that constitutional violations

occurred at his trial. Id. Counsel is appointed not to protect postconviction

petitioners from the prosecutorial forces of the State but to shape their complaints

into the proper legal form and to present those complaints to the court. Id.

¶ 20 To ensure that postconviction petitioners receive that level of assistance, Rule

651(c) provides:

“The record filed in that court shall contain a showing, which may be made

by the certificate of petitioner’s attorney, that 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, has examined the record of

the proceedings at the trial, and has made any amendments to the petitions filed

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

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

¶ 21 Compliance with the rule is mandatory (People v. Perkins, 229 Ill. 2d 34, 50

(2007)), but once postconviction counsel files a Rule 651(c) certificate, a rebuttable

presumption of reasonable assistance arises (Custer, 2019 IL 123339, ¶ 32). The

defendant bears the burden of overcoming that presumption by showing that

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postconviction counsel did not substantially comply with the strictures of the rule.

People v. Gallano, 2019 IL App (1st) 160570, ¶ 26. The defendant may do so by,

inter alia, demonstrating that postconviction counsel did not make all necessary

amendments to the pro se petition. See Turner, 187 Ill. 2d at 412 (citing People v.

Johnson, 154 Ill. 2d 227, 238 (1993)). This includes making amendments that are

necessary to overcome procedural bars. Perkins, 229 Ill. 2d at 44.

¶ 22 I. Failure to Provide Reasonable Assistance

¶ 23 Here, we hold that postconviction counsel failed to provide defendant with the

reasonable assistance of counsel. Defendant’s pro se petition raised 15 issues. The

petition shows that defendant understood the need to frame his issues as ineffective

assistance of appellate counsel. When a petitioner is asserting claims that could

have been raised on direct appeal, he can avoid the procedural bar of forfeiture by

casting his claims as ineffective assistance of appellate counsel for failing to raise

the issues on direct appeal. Turner, 187 Ill. 2d at 413. For 14 of his claims,

defendant specifically alleged that appellate counsel had failed to raise them on

appeal. He further alleged that his constitutional rights were violated by appellate

counsel’s failure to conduct a proper investigation and to raise these issues on

appeal.

¶ 24 Postconviction counsel determined that some of defendant’s claims were worth

pursuing and filed an amended petition raising five issues. Although these were all

issues that could have been raised on direct appeal, the petition did not assert any

claims of ineffective assistance of appellate counsel and nowhere alleged any way

in which appellate counsel was ineffective. 1 Thus, we are faced with the unusual

1

In the petition’s conclusion, it stated that “Defendant received ineffective assistance of counsel

during pre-trial proceedings, during post-trial proceedings, and at the appellate level.” The State has

never contended—nor could it—that this was a substantive claim of ineffective assistance of

appellate counsel. The petition contains no explanation of how appellate counsel was ineffective.

For instance, it is nowhere alleged that appellate counsel was ineffective for failing to raise the

claims asserted in the petition. Moreover, even if one were to assume for the sake of argument that

these few words in the petition’s conclusion were a “claim,” that would not end our inquiry. Rule

651(c) requires that appointed counsel make any amendments to the pro se petition that are

“necessary for an adequate presentation of petitioner’s contentions.” (Emphasis added.) Ill. S. Ct.

R. 651(c) (eff. July 1, 2017). Postconviction counsel’s obligation is to present the defendant’s

postconviction claims to the court in the appropriate legal form. Johnson, 154 Ill. 2d at 245. We

could obviously not consider this an adequate presentation of an ineffective assistance of appellate

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situation in which postconviction counsel, in one significant sense, made the pro se

petition worse by amending it.

¶ 25 When the State filed its motion to dismiss, it led off by arguing that all of

defendant’s claims were forfeited because he could have raised them on direct

appeal. The State pointed out that defendant had failed to challenge his appellate

counsel’s strategic decision not to raise these issues on appeal. Postconviction

counsel did not thereafter amend the petition in response to the State’s forfeiture

argument. At the hearing on the motion to dismiss, the State continued to point out

that these claims could have been raised on direct appeal and that ineffective

assistance of appellate counsel had not been alleged. The State made arguments

such as:

“Again, counsel was not ineffective. And, Judge, this claim is waived

anyways, procedurally barred where defendant could have raised it on direct

appeal but did not. And the strategy of appellate counsel has not been

challenged.

***

Again, judge, this is another claim that was available on appeal and not

raised. And, again, as the strategy of counsel has not been challenged, this

claim, too, is procedurally barred.” (Emphasis added.)

Postconviction counsel presented a lengthy argument in opposition to the motion

to dismiss and never once countered the State’s assertion that she had failed to

allege ineffective assistance of appellate counsel. We cannot hold that

postconviction counsel provided reasonable assistance where she identified several

claims that she believed were worth pursuing but did not make the necessary

counsel claim when (1) it is raised in such an obscure way that no one recognizes it as being in the

petition, (2) the petition fails to set forth any way in which appellate counsel was ineffective, (3) the

State moves to dismiss the petition on the basis that it contains no ineffective assistance of appellate

counsel claim, (4) postconviction counsel never challenges the State’s assertion that the petition

contains no allegation of ineffective assistance of appellate counsel, and (5) the trial court rules on

the petition with the understanding that it contains no claims of ineffective assistance of appellate

counsel. Thus, even if one were to assume for the sake of argument that postconviction counsel had

asserted a claim of ineffective assistance of appellate counsel in the petition, she clearly did not do

so in a way that complied with Rule 651(c).

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amendments to put the claims in their proper form. Worse than that, she eliminated

the necessary allegations that defendant had included in the pro se petition.

¶ 26 For several reasons, the State argues that postconviction counsel’s performance

was not unreasonable. First, the State cites People v. Greer, 212 Ill. 2d 192, 205

(2004), for the proposition that the requirement that postconviction counsel make

any necessary amendment to the pro se petition does not mean that counsel is

required to advance frivolous or spurious claims. Greer explained that, “[i]f

amendments 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.” Id. Greer is inapposite. In Greer, the postconviction petition was advanced

to the second stage only because the trial court failed to rule on it within 90 days.

Id. at 200. Thus, there had been no determination that the petition presented the gist

of a meritorious claim. Id. at 202. The trial court appointed counsel, and counsel

later moved to withdraw because the defendant’s issues were not meritorious and

he could find no other meritorious issues to raise. Id. at 200. Here, by contrast, the

trial court advanced the petition to the second stage because it determined that it

stated the gist of a meritorious claim. Postconviction counsel reviewed the petition

and determined that five claims were worth pursuing. However, counsel failed to

shape the claims into the proper form. 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.

¶ 27 Second, the State argues that this case differs from Turner because in that case

the appointed counsel also provided unreasonable assistance in other ways, such as

failing to make other necessary amendments to the petition and failing to attach an

affidavit. Turner held that postconviction counsel’s performance was unreasonable

given the “totality of circumstances.” Turner, 187 Ill. 2d at 414. We note that

defendant in the present case also alleged that his counsel was unreasonable in

failing to attach the affidavit that he had attached to his pro se petition, but the

appellate court deemed it unnecessary to address that issue because the failure to

allege ineffective assistance of appellate counsel necessitated a remand. See 2021

IL App (2d) 180545, ¶ 33. More importantly, however, this court was clear in

Turner that the failure to allege ineffective assistance of appellate counsel when

necessary to overcome a forfeiture was a violation of Rule 651(c). See Turner, 187

Ill. 2d at 412-13; see also Perkins, 229 Ill. 2d at 44 (citing Turner, 187 Ill. 2d at

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412-14 (Rule 651(c) requires counsel to amend the pro se petition to allege

ineffective assistance of appellate counsel to avoid the procedural bar of waiver)).

And from defendant’s standpoint, there is no difference between the two situations.

The failure to shape defendant’s claims into their proper form violates Rule 651(c),

and the effect of this violation is the same regardless of whether counsel’s

performance was also deficient in other ways.

¶ 28 The State further points out that there was no Rule 651(c) certificate filed in

Turner. The State argues that the fact that a Rule 651(c) violation occurs when

counsel fails to make a necessary allegation of ineffective assistance of appellate

counsel does not mean that such a failure necessarily overcomes the presumption

created by filing a certificate. This argument makes little sense. It is difficult to

imagine what would more clearly rebut the presumption created by the certificate

than the record demonstrating what this court has already defined to be a clear

violation of Rule 651(c).

¶ 29 The State next contends that this court was incorrect in Turner when it stated

that, if counsel had alleged ineffective assistance of appellate counsel, the claims

would not have been barred by waiver. See Turner, 187 Ill. 2d at 413. The State

claims that this court later held in People v. English, 2013 IL 112890, that only a

meritorious claim of ineffective assistance of appellate counsel overcomes

forfeiture. Once again, the State is comparing cases that were decided in different

procedural settings. Turner involved a second-stage dismissal of a postconviction

petition where the circuit court granted the State’s motion to dismiss because all of

the defendant’s claims could have been raised on direct appeal. The analysis

centered on what duties Rule 651(c) requires at the second stage. English involved

a denial of a petition after a third-stage hearing. This court concluded that the issue

the defendant was pursuing was forfeited because it could have been raised on

direct appeal. Id. ¶ 31. This court then considered defendant’s argument that, if this

court found the issue forfeited, then it should conclude that appellate counsel was

ineffective for failing to raise it on direct appeal. Id. ¶ 32. This court then considered

defendant’s ineffective assistance of appellate counsel claim substantively, by

applying the test from Strickland v. Washington, 466 U.S. 668 (1984). English,

2013 IL 112890, ¶ 33. The court determined that, at the time of the defendant’s

direct appeal, precedent did not support the issue that the defendant was raising in

his postconviction petition. Id. ¶ 35. Accordingly, it was not unreasonable for

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appellate counsel to determine that the issue was unlikely to succeed on appeal and

to pursue other issues instead. Id. This court therefore concluded that appellate

counsel’s performance was not deficient. The court then stated that “the issue is

forfeited, and the forfeiture is not excused based on ineffective assistance of

appellate counsel.” Id. This was a situation in which the court substantively

considered a claim of ineffective assistance of appellate counsel under the

Strickland standard. The English court did not address what constitutes reasonable

assistance of counsel at the second stage of postconviction proceedings.

¶ 30 Finally, the State argues that counsel’s determination of which pro se

allegations should be pursued in the amended petition should be afforded deference.

The State cites People v. Rogers, 197 Ill. 2d 216, 223 (2001), for the proposition

that, in judging the performance of appellate counsel, a reviewing court defers to

counsel’s determination of a potential claim’s merit. According to the State, it

would be “strange, indeed” if a similar standard did not govern review of statutorily

provided postconviction counsel’s performance. Again, though, postconviction

counsel determined that there were five issues from defendant’s pro se petition that

were worth pursuing, but she did not shape them into proper form. Indeed, she

eliminated the necessary allegations from defendant’s pro se petition. If we defer

to counsel’s decision to pursue these five issues, why would we then hold that it

was reasonable for counsel to fail to shape them into a form that would allow them

to be considered?

¶ 31 II. Remand

¶ 32 We next consider whether postconviction counsel’s unreasonable performance

requires a remand for compliance with Rule 651(c).

¶ 33 Because counsel did not comply with Rule 651(c), our case law dictates that the

cause should be remanded without a consideration of whether the petition’s claims

have merit. In Suarez, 224 Ill. 2d at 47, this court reiterated that it has consistently

held that, when postconviction counsel does not fulfill his or her duties under Rule

651(c), remand is required “regardless of whether the claims raised in the petition

had merit.” The court noted that it had held the following in People v. Brown, 52

Ill. 2d 227, 230 (1972):

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“ ‘[T]he purpose underlying Rule 651(c) is not merely formal. It is to ensure

that all indigents are provided proper representation when presenting claims of

constitutional deprivation under the Post-Conviction Hearing Act. [Citation.]

The fulfillment of this design would not be encouraged were we to ignore the

rule’s nonobservance in those cases appealed to this court.’ ” Suarez, 224 Ill.

2d at 51 (quoting Brown, 52 Ill. 2d at 230).

In Suarez, the State asked this court to overrule decades of precedent and hold that

noncompliance could be excused on the basis of harmless error when the claims in

the petition lack merit. Id. at 49. This court declined the State’s invitation:

“Our analysis, however, does not depend upon whether the pro se or

supplemental petitions in this case did or did not contain potentially meritorious

issues. Our Rule 651(c) analysis has been driven, not by whether a particular

defendant’s claim is potentially meritorious, but by the conviction that where

postconviction counsel does not adequately complete the duties mandated by

the rule, the limited right to counsel conferred by the Act cannot be fully

realized. [Citations.] We have consistently declined the State’s invitation to

excuse noncompliance with the rule on the basis of harmless error. We have

refused to address questions that are properly determined in the first instance

by the circuit court. The State presents no new persuasive arguments that would

justify departing from our prior case law. Accordingly, we decline to hold that

noncompliance with Rule 651(c) may be excused on the basis of harmless

error.” (Emphasis added.) Id. at 51-52. 2

¶ 34 The State argues that Suarez is limited to situations in which postconviction

counsel did not file a certificate of compliance. We disagree. As we explained

above, the certificate merely creates a rebuttable presumption of reasonable

assistance of counsel. Custer, 2019 IL 123339, ¶ 32. Here, defendant clearly

rebutted the presumption of reasonable assistance because postconviction counsel

failed to frame his claims as ineffective assistance of appellate counsel. In fact,

postconviction counsel eliminated the claims of ineffective assistance of appellate

counsel that defendant had made in the pro se petition. Once a petitioner has

2

In this appeal, the State argues that, if Suarez means what it says, then this court should

overrule it. For the reasons this court declined to overrule decades of its precedent in Suarez, we

likewise decline to overrule Suarez.

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rebutted the presumption of reasonable assistance, he is in the same position as a

petitioner in a case in which no certificate was filed and the record did not otherwise

show compliance. Accordingly, Suarez is dispositive of this appeal, and a remand

is required.

¶ 35 Citing People v. Landa, 2020 IL App (1st) 170851, ¶ 58, and Gallano, 2019 IL

App (1st), 160570 ¶ 30, the State argues that, in cases in which a Rule 651(c)

certificate has been filed, a postconviction petitioner may not obtain a remand

without demonstrating prejudice. Those decisions held that Suarez’s statement that

it does not matter whether a particular defendant’s postconviction claims have merit

applies only when counsel fails to file a Rule 651(c) certificate. We note, however,

that Landa also said that the Suarez rule “may also apply where counsel has failed

to perform one of the three specific duties outlined in that rule.” Landa, 2020 IL

App (1st) 170851, ¶ 58. Here, defendant is alleging that postconviction counsel

failed to make the necessary amendments for an adequate presentation of his

claims. Regardless, Suarez nowhere said that the rule it set forth applies only when

postconviction counsel fails to file a certificate. Rather, we held that harmless error

analysis does not apply where compliance with Rule 651(c) is not shown and that

such compliance must be shown regardless of whether the claims made in the

petition are viable. Suarez, 224 Ill. 2d at 51-52. The notion that harmless error

analysis would apply in all cases where a Rule 651(c) certificate has been filed is

incompatible with the certificate merely creating a rebuttable presumption of

reasonable assistance. Once the presumption has been rebutted, it would make no

sense to treat the petitioner differently than the petitioner in any other case in which

compliance with the rule is not shown.

¶ 36 The State further contends that Suarez is limited to situations in which there is

a complete failure of counsel to comply with basic Rule 651(c) duties. Suarez

contains no such limitation, and indeed, the attorney in that case had filed an

amended petition on the defendant’s behalf that expanded on the defendant’s pro se

claim and also raised an additional claim. Id. at 41. But this court held that

compliance with Rule 651(c) was not shown where there was no showing in the

record that postconviction counsel had consulted with the defendant before filing

the petition. Id. at 42-44. And in Brown we held that a remand was required for the

sole reason that the record did not show that postconviction counsel had examined

the trial record. Brown, 52 Ill. 2d at 230.

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¶ 37 The State argues that remanding without a showing of prejudice is illogical

because it makes it easier to succeed on a claim of unreasonable assistance of

postconviction counsel than it is to succeed on a claim of ineffective assistance of

counsel under Strickland. The problem with trying to compare an unreasonable

assistance claim with a Strickland claim is that, at the second stage of

postconviction proceedings, counsel’s specific duties are prescribed by Illinois

Supreme Court rule. As this court has explained:

“Commensurate with the lower reasonable assistance standard mandated in

postconviction proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017)

sharply limits the requisite duties of postconviction counsel. They are required

only to certify that they have ‘consulted with the petitioner by phone, mail,

electronic means or in person,’ ‘examined the record’ as needed to shape the

defendant’s pro se claims, and ‘made any amendments to the petitions filed

pro se that are necessary for an adequate presentation’ of those claims. Ill. S.

Ct. R. 651(c) (eff. July 1, 2017).” Custer, 2019 IL 123339, ¶ 32.

And, as Suarez explained, when these limited duties are not carried out, “[t]his court

has consistently held that remand is required *** regardless of whether the claims

raised in the petition have merit.” Suarez, 224 Ill. 2d at 47. Our case law thus clearly

establishes that all postconviction petitioners are entitled to have counsel comply

with the limited duties of Rule 651(c) before the merits of their petitions are

determined. We further note that there is a significant difference between what it

means to “succeed” on a claim of unreasonable assistance of counsel at the second

stage of postconviction proceedings and a claim of ineffective assistance of counsel

under Strickland. The remedies for the two claims are vastly different. A defendant

who succeeds on a claim of ineffective assistance of counsel under Strickland is

entitled to a new trial. A defendant who successfully argues that his attorney failed

to provide reasonable assistance at the second stage of postconviction proceedings

is merely entitled to a remand for his attorney to comply with the limited duties

required by Rule 651(c).

¶ 38 The State further argues that in certain contexts the appellate court has required

a showing of prejudice when a defendant is raising a claim of unreasonable

assistance of postconviction counsel. See People v. Pabello, 2019 IL App (2d)

170867 (evaluating postconviction counsel’s performance at a third-stage

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evidentiary hearing); People v. Hotwagner, 2015 IL App (5th) 130525 (same). A

comparison with cases considering unreasonable assistance claims at the third stage

is illogical, as this court has not prescribed by rule specific duties that counsel must

perform at the third stage. In both Pabello and Hotwagner, the appellate court was

faced with an argument that postconviction counsel provided unreasonable

assistance at a third-stage evidentiary hearing. In Pabello, the court noted that Rule

651(c) governs counsel’s duties at the second stage and that the third stage is simply

governed by a general reasonableness standard. Pabello, 2019 IL App (2d) 170867,

¶¶ 26-29. The court then analyzed the defendant’s claim of unreasonable assistance

at the third stage by considering the defendant’s claim under Strickland. Id. at 37.

The court reasoned that, if counsel’s performance complied with the higher

Strickland standard, then it necessarily met the lower reasonableness standard. Id.

at 36. The Hotwagner court used the same analysis and reasoning. See Hotwagner,

2015 IL App (5th) 130525, ¶ 37 (“[i]t further stands to reason that if postconviction

counsel’s performance cannot be deemed deficient under Strickland, it cannot be

said that counsel failed to provide the reasonable level of assistance required under

the Act”). Neither case provides any precedent for requiring a prejudice showing at

the second stage, where counsel’s limited duties are prescribed by Illinois Supreme

Court rule.

¶ 39 Finally, the State argues that a remand is not required here because the trial

court dismissed the petition on the merits rather than finding that the claims were

forfeited. In Turner, this court held that a remand was required where

postconviction counsel had failed to make a routine amendment—alleging

ineffective assistance of appellate counsel—that was necessary to avoid forfeiture

of the petitioner’s claims. Turner, 187 Ill. 2d at 413-14. The State argued that the

petitioner was not prejudiced because the underlying claims were without merit. Id.

at 415. This court disagreed, explaining that the prejudice to the petitioner was

palpable where the failure to make the necessary amendment to avoid forfeiture led

directly to the dismissal of the petitioner’s claims without a consideration of their

merits. Id. In that case, the trial court found that the petitioner’s claims were waived

because they could have been raised on direct appeal. Id. at 412-13. The State

argues that a different result is required here because the court dismissed the

petition on the merits rather than on the basis of forfeiture.

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¶ 40 There are two problems with the State’s argument. First, it is simply not

possible to tell from this record that forfeiture played no part in the trial court’s

decision. At no point, either in open court or in its written order, did the trial court

explain why defendant’s claims lacked merit. After listening to the parties’

arguments, the one question that the trial court had for defense counsel was “could

you address why you don’t believe that these issues that you have addressed would

not and could not have been raised on direct appeal?” When defense counsel did

not directly answer the question, the court said, “[e]verything that has been

presented by way of the amended [postconviction petition] are arguments that I

believe could have been made on direct appeal. Arguments that you have brought

forth are all matters that were in the record.” When the trial judge thereafter

dismissed the petition, he merely quoted—both in open court and in the written

order—the statutory standard that the petition had failed to make a substantial

showing of a violation of a constitutional right. But it is clear from the record that

the trial court ruled on the petition under the belief that all of the claims could have

been made on direct appeal and that there was no allegation of ineffective assistance

of appellate counsel in the petition. If the only viable claims that defendant had

were not in the petition, then the petition necessarily did not make a substantial

showing of a violation of a constitutional right. It is simply not possible to say from

this record that the failure to allege ineffective assistance of appellate counsel

played no part in the trial court’s decision.

¶ 41 Second, the State does not sufficiently consider Turner’s principal holding.

After noting that the petitioner did suffer prejudice, the court held that, on a more

fundamental level, it would not be appropriate to affirm the dismissal of the petition

when counsel had not shaped the claims into the proper form. The court cited

Johnson for the proposition that it would not “speculate whether the trial court

would have dismissed the petition without an evidentiary hearing if counsel had

adequately performed his duties under Rule 651(c).” Id. at 416 (citing Johnson, 154

Ill. 2d at 246). This court explained that, when counsel has not complied with Rule

651(c), the court will not consider the merits of the petition:

“[I]n this case it is improper to determine the merit of petitioner’s claims where

counsel essentially did nothing to shape the petitioner’s claims into the

appropriate legal form. To tolerate such inadequate representation would render

the appointment of counsel in post-conviction proceedings nothing but ‘an

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empty formality.’ People v. Garrison, 43 Ill. 2d 121, 123 (1969); People v.

Wilson, 40 Ill. 2d 378, 381 (1968) (representation by appointed counsel in post-

conviction proceedings must be more than mere ‘tokenism’). Petitioner must be

given an opportunity to replead his post-conviction petition with the benefit of

reasonable assistance of counsel.

We reiterate that we express no opinion on the merit of the claims in

petitioner’s post-conviction petition or even whether an evidentiary hearing on

his claims would be appropriate in this case. On remand, the trial court will

have an opportunity to evaluate the claims in petitioner’s post-conviction

petition once petitioner’s counsel has made any amendments to the petition

which are necessary for an adequate presentation of petitioner’s contentions.

Johnson, 154 Ill. 2d at 249.” Id. at 416-17.

¶ 42 In other words, in response to the State’s argument that the petitioner suffered

no prejudice because the underlying claims lacked any merit, this court held that

(1) the petitioner was prejudiced because the trial court found his claims to be

forfeited but, (2) regardless, it is inappropriate to consider the merits of the claims

in the petition when counsel has not complied with Rule 651(c) by shaping the

claims into the appropriate form. It was this latter part of the holding that this court

quoted and discussed in Suarez. See Suarez, 224 Ill. 2d at 48. Suarez viewed Turner

as one in a long line of cases holding that, when appointed counsel does not

adequately fulfill his or her duties under Rule 651(c), a remand is required

regardless of whether the petition’s claims have merit. Id. at 47-49. Here, where

postconviction counsel took claims that were asserted in their proper form and

turned them into claims that were not in the proper form, defendant is entitled to

the same relief that the petitioner in Turner obtained.

¶ 43 CONCLUSION

¶ 44 Postconviction counsel did not comply with Rule 651(c), because she failed to

shape defendant’s claims into proper form. Defendant had made the necessary

claims of ineffective assistance of appellate counsel when he filed his pro se

petition, but postconviction counsel eliminated these claims when she filed the

amended petition. Defendant has thus rebutted the presumption of reasonable

assistance that arose from postconviction counsel’s Rule 651(c) certificate.

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Pursuant to Suarez, the appellate court correctly remanded the cause for compliance

with Rule 651(c) without considering whether the claims in the petition were

meritorious. We therefore affirm the appellate court’s judgment, which reversed

the judgment of the circuit court.

¶ 45 Appellate court judgment affirmed.

¶ 46 Circuit court judgment reversed.

¶ 47 CHIEF JUSTICE THEIS, dissenting:

¶ 48 The majority phrases the issue in this case as whether postconviction counsel

rendered unreasonable assistance by failing to frame the issues in the defendant’s

amended postconviction petition as ones of ineffective assistance of appellate

counsel and, if so, whether the appellate court properly remanded the case for

compliance with Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. July 1, 2017)) without

considering the petition’s merits. 3 Supra ¶ 1. In my view, the majority’s conclusion

on the first part of that issue was incorrect, obviating the need to reach the second

part.

¶ 49 The State filed a motion to dismiss the amended petition, arguing that the

defendant’s claims were forfeited because they could have been raised on direct

appeal and that he failed to make a substantial showing of a constitutional violation.

The trial court granted the State’s motion to dismiss, stating that the defendant was

not entitled to an evidentiary hearing because he “failed to make a substantial

showing of any violation of a Constitutional right.” The trial court also entered a

written order, stating:

“The Court has considered the arguments made in the written pleadings as

well as the arguments made at the hearing today. The Petitioner has failed to

make a substantial showing of a violation of a constitutional right.”

3

Postconviction counsel did file a Rule 651(c) certificate to accompany the amended petition.

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¶ 50 Certainly, the majority is correct that the trial court did not discuss the merits

of the defendant’s claims in either its oral ruling or its written order. The majority,

however, hears from that silence the reasoning behind the trial court’s decision.

According to the majority, the trial court’s exchange with postconviction counsel

on the subject of “waiver” during the hearing on the State’s motion means that the

court disposed of the petition on that ground—i.e., “understanding that it

contain[ed] no claims of ineffective assistance of appellate counsel.” Supra ¶ 24

n.1.

¶ 51 I do not possess such clairvoyance, and I would take the trial court’s words

literally. The trial court considered the parties’ arguments, which included

arguments regarding the merits of the amended petition and concluded, without

mentioning procedural default, that the petition did not meet the second-stage

standard for legal sufficiency. See People v. Domagala, 2013 IL 113688, ¶ 35

(stating that “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”). As we have held, a

defendant fails to make such a showing when the claims in the petition “lack merit.”

People v. Pingelton, 2022 IL 127680, ¶ 66. The court should presume that the trial

court’s decision was in conformity with the law. Cf. Foutch v. O’Bryant, 99 Ill. 2d

389, 393 (1984).

¶ 52 Further, because I cannot fathom how trial counsel was ineffective and how

appellate counsel could have asserted that he was, I cannot conclude that

postconviction counsel rendered unreasonable assistance by including an

underdeveloped claim of ineffective assistance of appellate counsel in the amended

petition. The majority glosses over the trial proceedings, stating simply, “Defendant

failed to appear for trial and was tried in absentia.” Supra ¶ 3. To properly

contextualize the parties’ arguments in this appeal, a more detailed recitation of the

factual background is necessary.

¶ 53 In mid-2011, Kevin Ziegler listed a 1995 Suzuki motorcycle for sale online.

The defendant contacted Ziegler and asked to see the motorcycle. On June 19, 2011,

the defendant and his friend Kenny Drake went to Ziegler’s apartment. Drake took

the motorcycle for a test drive and told the defendant that it was in good condition.

The defendant offered Ziegler $3000 for the motorcycle. Ziegler accepted. The

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defendant gave Ziegler $3000 in cash, and Ziegler gave the defendant the title and

the keys to the motorcycle. Ziegler soon realized that the currency was probably

counterfeit, and he called the police. The defendant was ultimately arrested for an

unrelated traffic offense and transported to the Geneva Police Department. The

defendant was placed in a booking room, while Geneva police officer Robert Bailey

contacted Special Agent Shannon McDowell of the United States Secret Service

counterfeit currency unit. The next morning, McDowell arrived at the police

station. McDowell confirmed that all of the currency was counterfeit—the bills

lacked security features and had repeating serial numbers.

¶ 54 McDowell then spoke to the defendant. McDowell read him Miranda warnings

from a Secret Service form. See Miranda v. Arizona, 384 U.S. 436 (1966). The

form advised the defendant:

“You must understand your rights before we ask you any questions.

You have the right to remain silent.

Anything you say can be used against you in court, or other proceedings.

You have the right to talk to a lawyer for advice before we question you and

to have him with you during questioning.

If you cannot afford a lawyer and want one, a lawyer will be appointed for

you by the court. If you decide to answer questions now without a lawyer

present, you will still have the right to stop the questioning at any time. You

also have the right to stop the questioning at any time until you talk to a lawyer.

I have read this statement of my rights and it has been read to me, and I

understand what my rights are.”

The defendant signed the form after those paragraphs.

¶ 55 The form continued:

“I do not want a lawyer at this time. I understand and know what I am doing.

No promises or threats have been made to me and no pressure or force of any

kind has been used against me. I hereby voluntarily and intentionally waive my

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right to remain silent and my right to have an attorney at this time. I am willing

to make a statement and answer questions.”

The defendant again signed the form after that paragraph. At the bottom of the page,

the defendant, Officer Bailey, and Special Agent McDowell all signed the form to

certify that the warnings were recited to the defendant and that he read the form.

¶ 56 McDowell interviewed the defendant. The defendant admitted that he paid

Ziegler with counterfeit currency. The defendant was not charged but released from

custody. He cooperated with McDowell until July 2011. When the defendant was

no longer able to help with the investigation, McDowell stated that he could be

charged and arrested in connection with the motorcycle purchase. The defendant

was arrested on October 28, 2011.

¶ 57 On February 22, 2012, the defendant was charged by indictment with unlawful

possession of a motor vehicle, unlawful possession of a converted motor vehicle,

forgery, and two counts of theft. He was released on bond. The defendant missed a

September 2012 status hearing, but the parties agreed to schedule a pretrial hearing

for January 10, 2013, and trial for January 14.

¶ 58 Defense counsel filed a motion in limine to bar the State from eliciting any

mention of the defendant’s confession at trial. The defendant acknowledged that he

purportedly made two confessions—one while in police custody and one while in

Secret Service custody. The defendant contended that neither confession was

voluntary. He did not specify why the first confession was involuntary, but he

claimed that the second confession was involuntary because it “was made after the

US Secret Service promised the Defendant that if he confessed that he knowingly

used counterfeit bills that he would be released from custody. The promise of being

granted his freedom was so alluring to the Defendant that his will was overborn

[sic].”

¶ 59 When the defendant initially failed to appear in court for the pretrial hearing,

the prosecutor asked the court to “go in absentia” on the trial date. Defense counsel

objected and revealed his strategy for the case:

“I believe that Mr. Addison is essentially my only true witness as to his

mental state, as to whether or not he knew the bills were counterfeit, which I

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believe is an essential element of the forgery, the fact the possession of a stolen

motor vehicle and the converted motor vehicle. Because if he were just

innocently passing along bills that he did not know were fake, I don’t believe

he would have the mental state for any of those elements.

And without him being present, I won’t be able to present any sort of

defense on his behalf. So I object to *** the trial in absentia.”

¶ 60 The trial court asked defense counsel about scheduling a hearing on any pretrial

motions. Defense counsel answered:

“Your Honor, my position would be that without Mr. Addison to perfect

some of the claims in my motions, that I don’t believe I can necessarily fully

proceed with my motions.

I can certainly cross whichever witnesses the State calls regarding the

voluntariness and the surrounding circumstances of my client’s alleged

statements. But he, again, would be my key witness for anything along those

lines.”

¶ 61 Twenty minutes after the court adjourned, the defendant arrived at defense

counsel’s office, and the parties returned to court. The trial court admonished the

defendant that if he failed to appear for trial, he could be tried, convicted, and

sentenced in absentia. The defendant indicated that he understood.

¶ 62 On January 14, 2013, the defendant did not appear. The State moved to strike

the defendant’s motion in limine for want of prosecution. Defense counsel objected

and renewed his earlier objection to proceeding without the defendant. Defense

counsel reiterated that the defendant is “essentially my only witness” and “my best

and really only witness” and that “any due process rights that he would have to a

fair trial to defending himself are nonexistent if the [S]tate is allowed to proceed in

his absence.” The trial court paused its call to give the defendant more time to

appear. When he still had not, the court instructed defense counsel to proceed with

the defendant’s motion in limine.

¶ 63 Defense counsel argued that the defendant’s second inculpatory statement was

involuntary because the promise of release in exchange for such a statement

overcame his will. The State called Special Agent McDowell as its only witness.

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Defense counsel presented no evidence because the defendant was not present,

though counsel suggested that the defendant’s release implied a promise in

exchange for his inculpatory statement. The trial court denied the defendant’s

motion in limine, and the matter immediately proceeded to a jury trial.

¶ 64 The State called Zeigler, Officer Bailey, and Special Agent McDowell as

witnesses, then rested its case. Defense counsel moved for a directed verdict,

arguing that “the [S]tate’s evidence is insufficient to prove the mental state and that

no reasonable jury could find Mr. Addison guilty of these crimes.” The trial court

denied that motion and asked defense counsel if he had any evidence. Defense

counsel answered, “I do not,” but reserved the right to change that answer if the

defendant appeared.

¶ 65 As the majority notes, the jury convicted the defendant on all counts. The trial

court entered judgment on the guilty verdicts and scheduled the sentencing hearing

for March 20, 2013. On March 19, 2013, new posttrial counsel filed a motion for

judgment notwithstanding the verdict or a new trial. In that motion, counsel insisted

that “the entire defense strategy relied on the Defendant’s presence and testimony

and the Defendant’s testimony was necessary to prevail on Defendant’s motion to

bar the Defendant’s statements to investigators including the U.S. Secret Service.”

The trial court denied that motion and sentenced the defendant. Shortly thereafter,

the defendant was arrested. He appeared with posttrial counsel for a hearing on his

motion to reconsider sentence. The trial court denied that motion, and the defendant

appealed.

¶ 66 Again, as the majority notes, appellate counsel communicated by telephone and

by mail with the defendant to inform him that there were no meritorious substantive

issues to challenge the defendant’s conviction and only a sentencing-credit issue

that would reduce the defendant’s sentence by two days. The appellate court

granted that relief in a minute order.

¶ 67 Seventeen months later, the defendant filed a pro se postconviction petition,

attacking the performance of both trial and appellate counsel. The trial court

advanced the petition to the second stage and appointed an attorney, who eventually

filed an amended petition, asserting five claims. Among those claims,

postconviction counsel argued that trial counsel was ineffective for failing to file a

motion to suppress the defendant’s inculpatory statement “on grounds of improper

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Miranda warnings” and that trial counsel was ineffective for failing to file a motion

to suppress the statement as involuntary. The amended petition ended by

summarizing that “the Defendant received ineffective assistance of counsel during

pre-trial proceedings, during post-trial proceedings, and at the appellate level.”

¶ 68 The defendant absented himself from the hearing on his motion in limine and

his trial. Trial counsel objected to a trial in absentia because the defendant was “my

key witness,” “essentially my only witness,” and “my best and really only witness.”

And, even without the defendant’s testimony as support, trial counsel pressed an

involuntariness argument. Under those challenging circumstances, trial counsel

performed effectively. Appellate counsel had no argument to make regarding the

core of the defendant’s case, the voluntariness of his confession, because the

defendant intentionally sabotaged that argument by not appearing. And because

neither trial nor appellate counsel was ineffective, postconviction counsel did not

render unreasonable assistance by including an underdeveloped claim of ineffective

assistance of appellate counsel in the amended petition. Accordingly, the

presumption created by postconviction counsel’s Rule 651(c) certificate was not

rebutted.

¶ 69 This case is not one in which the court should make grand pronouncements

about postconviction petitions and the strictures of Rule 651(c). Under the unique

facts of this case, the court’s narrow holding should be to affirm the trial court’s

dismissal of the defendant’s amended petition on its merits.

¶ 70 I respectfully dissent.

¶ 71 JUSTICE OVERSTREET joins in this dissent.

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