NOTICE

Decision filed 10/22/15. The text of this decision may be NO. 5-13-0525 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 07-CF-152 ) JOHN HOTWAGNER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE SCHWARM delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and opinion.

OPINION

¶1 I. FACTS

¶2 Following a domestic incident that occurred in October 2007, the defendant, John

Hotwagner, was charged in Lawrence County case number 07-CF-152, with two counts

of aggravated criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)) (counts I and

II) and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2006))

(count III). At the defendant's first appearance, he requested counsel, and the trial court

appointed public defender Brad Vaughn to represent him. The defendant was

subsequently represented by private counsel, Roscoe Cunningham, until February 2008, 1 when citing "no payment for legal services rendered," Cunningham was granted leave to

withdraw.

¶3 In March 2008, the defendant appeared pro se at his final pretrial conference and

pled guilty to count II in exchange for a 12-year sentence and the State's dismissal of

counts I and III. When discussing the terms of the plea agreement, then-State's Attorney

Patrick Hahn advised the trial court that he and the defendant had reached the agreement

after talking outside the courtroom. Noting that Cunningham had recently withdrawn,

Hahn further advised that he had asked the defendant if he wanted a court-appointed

attorney or if he wanted to speak with him and that the defendant had advised that he

wanted to speak with him. Hahn did not, however, indicate who had initiated the

conversation or the plea negotiations. Before entering his plea, the defendant was

admonished pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) and waived

his right to counsel in open court.

¶4 In September 2009, the defendant filed a pro se petition for relief pursuant to the

Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2008)). In his

pro se petition, the defendant alleged that when he appeared for his final pretrial

conference in March 2008, he had "expected to be met by his attorney, Roscoe D.

Cunningham, [but] instead was met by State's Attorney Patrick Hahn outside the

courtroom." The defendant further alleged that after informing him that Cunningham had

" 'quit [him],' " Hahn had "then said[,] 'You can take 12 years now[,] or I'll give you 20 or

better next week at trial.' " Claiming that he had not previously been informed that he

"no longer had legal representation" and that he had felt "ambushed and threatened" by 2 Hahn, the defendant suggested that his guilty plea had been coerced rather than

knowingly and voluntarily entered. The defendant further alleged that "[f]eeling

abandoned and unsure of what [he] should do," he had "mentally blanked out" and was

thus "incompetent and unable to cope with the legal proceedings."

¶5 The defendant's pro se petition included an affidavit from inmate Tyler Newlin,

who indicated that he had been outside the courtroom along with the defendant and had

witnessed the encounter between the defendant and Hahn. Newlin maintained that he had

"witnessed the State[']s Attorney, Mr. Patrick Hahn[,] approach [the defendant] and

inform him that his attorney had 'quit.' " According to Newlin's affidavit, Hahn had "then

made the following statement in a threatening tone[:] 'You can take the 12 years today, or

I will give you 20 years next week at trial.' " Newlin further asserted that the defendant

had not been "allowed the chance to consult with [an attorney] before going to trial and

accepting the State's offer."

¶6 In March 2010, the trial court appointed attorney Matthew Hartrich to represent

the defendant on his postconviction petition. In June 2010, Hartrich filed an amended

petition on the defendant's behalf. The amended petition incorporated by reference "all

of the allegations" in the defendant's pro se petition and specifically alleged the

following:

"The State's Attorney spoke with [the defendant] without his attorney being

present and obtained the guilty plea with [the defendant] without his attorney

being present, which violated [the defendant's] right to counsel. U.S. Const.,

amend. VI, XIV; Ill. Const. 1970, art. I, sec. 8." 3 Notably, the State did not address this allegation in its motion to dismiss the defendant's

amended petition for postconviction relief, which was filed by then-State's Attorney Lisa

Wade in July 2010. The State observed, however, that the defendant had waived his right

to counsel when entering his guilty plea.

¶7 In July 2010, Hartrich filed a certificate attesting that he had complied with the

requirements of Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Hartrich

specifically certified that he had "consulted with the [defendant] in person to ascertain his

contentions of deprivation of constitutional rights," had "examined the trial court file and

report of proceedings of the plea of guilty," and had "made any amendments to the

petition filed pro se that [were] necessary for an adequate presentation of [the

defendant's] contentions."

¶8 In September 2010, following a hearing, the trial court granted the State's motion

to dismiss the defendant's amended petition for postconviction relief and thus denied the

defendant an evidentiary hearing on his underlying claims. When dismissing the

amended petition, the trial court noted that when entering his guilty plea, the defendant

had been "offered appointed counsel, and he waived his right to appointed counsel."

¶9 The defendant subsequently appealed the trial court's dismissal of his amended

postconviction petition. Citing People v. Card,

(1989), the

defendant argued that the trial court erred in dismissing the petition because he had made

a substantial showing that the State had violated his sixth amendment right to counsel by

"contacting him directly and negotiating a guilty plea with him."

4 ¶ 10 In August 2012, this court reversed the trial court's second-stage dismissal of the

defendant's amended postconviction petition, noting that under Card, a defendant who

has previously invoked his sixth amendment right to counsel can validly waive that right

in the context of plea negotiations "only if he, rather than the State, 'initiated the plea

bargaining.' " People v. Hotwagner,

, ¶ 21 (quoting Card,

). Accepting the factual allegations in the defendant's amended

petition as true, we thus determined that the defendant had made a substantial showing

that the State had violated his sixth amendment right to counsel by improperly initiating

the negotiations that resulted in his guilty plea. Id. ¶¶ 18, 23. Accordingly, we remanded

the cause for an evidentiary hearing on the claim. Id. ¶¶ 24, 26.

¶ 11 In November 2012, the trial court granted Hartrich leave to withdraw and entered

an order appointing Abbey Brian as third-stage postconviction counsel. In April 2013,

the cause proceeded to an evidentiary hearing, where the following evidence was

adduced.

¶ 12 The defendant testified that he was 44 years old and was incarcerated at the

Centralia Correctional Center. Following his October 2007 arrest, the defendant was

initially represented by court-appointed attorney Vaughn, but the defendant's family later

hired Cunningham to represent him. Cunningham appeared with the defendant at his

preliminary hearing in November 2007 and at his formal arraignment in December 2007.

The defendant stated that when he appeared for his final pretrial conference in March

2008, he had not spoken with Cunningham since December 2007 and had not received

word that Cunningham had withdrawn his representation. The defendant further stated 5 that he had never received written notice of Cunningham's intent to withdraw. The

defendant testified that the last time he had spoken with Cunningham, Cunningham had

indicated that he had negotiated a plea agreement with Hahn and that at the final pretrial

conference, the defendant would plead guilty to a charge of "regular battery" and

"everything [else] would be dropped." According to the defendant, "[t]hat's what [he]

was expecting" would happen at the final pretrial conference. The defendant testified

that while waiting for Cunningham outside the courtroom, however, Hahn had

approached him and asked to speak with him. The defendant testified that Hahn had

initiated the contact. The defendant stated that after advising him that Cunningham had

"quit on [him]," Hahn had asked him if he wanted an attorney appointed or if he was

willing to talk without one. The defendant testified that he had subsequently spoken with

Hahn because he did not want to make him "mad." The defendant stated that

approximately 20 minutes later, he was brought into the courtroom, where he pled guilty

to count II and received a 12-year sentence.

¶ 13 When cross-examined, the defendant testified that Hahn had "ambushed" him by

approaching him in the hallway and basically saying, "[E]ither take this deal or we're

going to slam you." The defendant stated that he had been unaware that Cunningham

was no longer his attorney until Hahn had informed him that such was the case. The

defendant acknowledged that while he was incarcerated following his arrest, he had

spoken with Cunningham over the telephone. He testified that after December 2007,

however, "every time [he] would call [Cunningham's] office[,] nobody would answer."

6 ¶ 14 The defendant acknowledged that he knew that he had the right to have an

appointed attorney present when he spoke with Hahn and had not requested one. The

defendant explained that he had "felt like [Hahn's offer] was a one-time deal" and that

having an attorney appointed "was the furthest thing from [his] mind at the time." The

defendant indicated that he and Hahn had spoken for less than five minutes and that when

he brought up the plea agreement that Cunningham had allegedly negotiated, Hahn had

said something about it being "bullshit." The defendant claimed that Hahn had "played

on [his] emotions" and had "caught [him] at a bad time." The defendant testified that

Newlin had been with him when Hahn had approached him and that some correctional

officers had also been present. The defendant indicated that he had been "on parole"

when he was charged in the present case and that his parole had been revoked as a result

of the charges.

¶ 15 The defendant acknowledged that he had agreed to the terms of his plea agreement

in open court and had not stated that he had been ambushed or that he wanted an attorney

appointed to represent him. The defendant further acknowledged that when entering his

plea, he had understood the trial court's admonishments, had waived his right to an

attorney, and had confirmed, among other things, that he had not been threatened, forced,

or coerced into entering his plea.

¶ 16 On redirect, the defendant testified that when Hahn approached him in the

hallway, Hahn had "[b]asically" said, "[Y]our lawyer quit on you. You could take this 12

years today[,] or I am going to give you 20 or better next week." The defendant further

testified that he had not had "any opportunity to process this information" and had not 7 had "the opportunity to discuss this offer with anybody else." The defendant stated that

he had felt like he "had no choice" but to accept Hahn's offer.

¶ 17 On recross, the defendant acknowledged that he knew that count II was a Class X

felony with a statutory sentencing range of 6 to 30 years. He also acknowledged that on

prior occasions, he had entered guilty pleas to other felony charges. The defendant

testified that in the present case, however, he "didn't even realize what [had] happened

until after the fact." On further redirect, the defendant stated that he had never previously

represented himself when entering a plea of guilty.

¶ 18 Hahn testified that he was the Lawrence County State's Attorney from 2004

through 2008. Hahn stated that he remembered the defendant "for several reasons" and

recalled that "the nature of the [defendant's] crime was pretty bad." Hahn indicated that

in addition to the charges that had been filed in Lawrence County, the defendant had also

been charged in Clark County with offenses arising from the same incident. Hahn further

indicated that the defendant had pled guilty to the charges in Clark County sometime

prior to March 2008.

¶ 19 With respect to the events that led to the entry of the defendant's March 2008

guilty plea, Hahn testified that although the cause was set for a final pretrial conference,

he had anticipated that in light of Cunningham's recent withdrawal, the defendant "would

either ask for an attorney or advise the [c]ourt that he wanted additional time to hire an

attorney." Hahn testified that as he was walking through the hallway towards the

courtroom, however, the defendant, who "was there with [Department of Corrections]

personnel," had politely asked to speak with him. At that point, Hahn asked the 8 defendant if he wanted to talk or if he wanted to have an attorney appointed to represent

him. Hahn testified that the defendant had responded by stating that he wanted to talk

and "get this over with." Hahn stated that he and the defendant had subsequently "walked

over to the side," where the defendant indicated that he "wanted to plead for six years."

Explaining that his "internal rule of thumb" for Class X felonies and sexual assault cases

was to always obtain "double digits for the sentence," Hahn testified that he had rejected

the defendant's proposal. Hahn indicated that he had then made a counteroffer of

"somewhere between 15 and 16," and the defendant said that he "was willing to do 12."

Shortly thereafter, the agreement was presented to the court, and the defendant entered

his guilty plea.

¶ 20 Hahn testified that he did not recall having any specific dealings with Cunningham

in the present case. Hahn indicated that based on prior experiences, however, he had

learned that if he wanted to try to negotiate with Cunningham, "it was generally best for

[Cunningham] to initiate the negotiations," which Cunningham often did "on the eve of

trial." Hahn further indicated that he and Cunningham had never discussed a deal by

which the defendant would plead guilty to a charge of battery and "everything else would

be dismissed." Hahn testified that there was "no doubt in [his] mind that [the defendant

had] initiated the discussion" in the hallway and had "asked to speak with [him]." Hahn

testified that "that's when [he had] asked [the defendant] if he wanted to have an attorney

appointed first, and he said no, he wanted to get it over with."

¶ 21 When cross-examined, Hahn acknowledged that he knew that the defendant was

no longer represented by counsel when they negotiated their plea agreement. Hahn did 9 not recall advising the defendant that Cunningham had "quit him," but he indicated that

the defendant had not acted surprised when he had asked him if he wanted to have an

attorney appointed to represent him. Hahn acknowledged that he had not told the

defendant that he could not speak with him but had rather asked him, "[D]o you want to

talk to me or do you want to have an attorney appointed for you[?]" On redirect,

indicating that he had recently reviewed "the transcripts," Hahn apologized for not having

made a better record of the events that led to the entry of the defendant's guilty plea.

¶ 22 During closing arguments, Brian maintained, among other things, that it was

"clear that the State [had] initiated the contact here." Brian further suggested that "the

fact that the conversation [even] occurred" was a violation of the defendant's right to

counsel. The State countered that "it was the [d]efendant who [had] initiated the

discussion with Mr. Hahn and not the reverse." Referencing Card, the State argued that

the defendant had thus waived his right to counsel. The State also suggested that before

continuing their conversation, Hahn had "protect[ed] himself in a sense" by confirming

that the defendant did not want to have an attorney appointed to represent him. Stating

that the defendant was "not a person of feeble mind," the State also emphasized that the

defendant acknowledged that he had understood the rights that he was "giving up" by

entering his plea. Noting that there was "a contradiction between the two witnesses"

regarding who had initiated the plea bargaining, the trial court subsequently took the

matter under advisement.

¶ 23 In October 2013, the trial court entered a written order denying the defendant's

amended postconviction petition. In its order, the trial court noted, among other things, 10 that the defendant's testimony at the evidentiary hearing "conflict[ed] sharply with the

testimony presented on behalf of the State." After thoroughly recounting the procedural

history of the case, the evidence presented at the evidentiary hearing, and the applicable

law, the court concluded as follows:

"Based upon all of the evidence presented at the third[-]stage hearing

together with the transcripts of previous hearings in this case, and based upon the

demeanor of the witnesses, this court finds that Defendant's version of the

colloquy in the hallway *** is not credible. The court finds that Defendant ***

initiated the discussion with State's Attorney Hahn in the hallway and requested to

talk to him and that Mr. Hahn only engaged him in discussions concerning a plea

after he ascertained that Defendant, having been informed that he had [the] right to

speak to an attorney or have a public defender appointed rather than talk to Mr.

Hahn, expressed his intent to talk to Mr. Hahn about a possible plea.

From the context and circumstances, it is apparent to the court that

Defendant *** was aware previous to the time of this colloquy that Attorney

Cunningham no longer represented him. It is also apparent from the testimony

and circumstances that Defendant affirmatively engaged State's Attorney Hahn in

discussion in order to negotiate with him. Thus Defendant's Sixth Amendment

rights to representation by counsel were not violated by this conversation and

negotiation.

Furthermore, at the time the plea was taken, Defendant was again informed

of his right to persist in a plea of not guilty and have an attorney appointed to 11 represent him and repeatedly stated his intent to waive the right to an attorney and

enter into the plea agreement. Moreover, it was apparent to this court at the time

the plea was taken, from Defendant's answers in the course of the court taking the

plea and waivers and from Defendant's demeanor that he freely, knowingly and

voluntarily waived his right to counsel and other rights of defense."

Brian subsequently filed the defendant's timely notice of appeal.

¶ 24 II. DISCUSSION

¶ 25 The defendant argues that his cause must be remanded for a new evidentiary

hearing with new postconviction counsel because Brian failed to provide him with the

reasonable level of assistance required under the Act. The defendant specifically

maintains that Brian's representation was deficient in that she failed to cite controlling

law in support of the defendant's claim that the State violated his sixth amendment right

to counsel, failed to use available evidence to bolster the defendant's testimony as to

when he learned that Cunningham was no longer his attorney, failed to call Newlin as a

corroborating witness, and "filed a certificate after the hearing which indicated confusion

as to the basics of the Act and her role in representing [the defendant]." For the reasons

that follow, we disagree.

¶ 26 A. The Post-Conviction Hearing Act

¶ 27 The Act sets forth a procedural mechanism through which a defendant can 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 2008). The Act provides a three-stage 12 process for the adjudication of postconviction petitions. People v. English,

.

¶ 28 At the first stage, the trial court independently assesses the defendant's petition,

and if the court determines that the petition is "frivolous" or "patently without merit," the

court can summarily dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2008); People v.

Edwards,

(2001). To survive the first stage, "a petition need only

present the gist of a constitutional claim" (People v. Gaultney,

(1996)), which is a "purposely low threshold for survival because most petitions are

drafted at this stage by defendants with little legal knowledge or training" (People v.

Ligon,

(2010)).

¶ 29 If a petition is not dismissed at the first stage, it advances to the second stage,

where an indigent petitioner can obtain appointed counsel and the State can move to

dismiss it. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2008); Edwards,

. At the second stage, the trial court is "foreclosed from engaging in any fact-

finding because all well-pleaded facts not rebutted by the record are to be taken as true."

People v. Phyfiher,

(2005) (citing People v. Coleman,

(1998)). At the second stage, if the defendant makes a substantial

showing of a constitutional violation, the petition advances to the third stage, where the

trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2008); Edwards,

.

¶ 30 At the third stage, a defendant has the burden of proving a substantial showing of a

constitutional violation. People v. Pendleton,

(2006). "An 13 attorney at the evidentiary hearing stage must argue the merits of the postconviction

petitioner's claims as presented in the petition following review by counsel at the second

stage." People v. Marshall,

(2007). At the third stage, the trial

court "may receive evidentiary proof via affidavits, depositions, testimony, or other

evidence, and may order the petitioner brought before the court." People v. Gerow,

(2009). An evidentiary hearing allows the parties to "develop

matters not contained in the trial record and, thus, not before the appellate court." People

v. Lester,

(1994).

¶ 31 "Following an evidentiary hearing where fact-finding and credibility

determinations are involved, the trial court's decision will not be reversed unless it is

manifestly erroneous." People v. Beaman,

(2008). This standard

recognizes that "we must give great deference to the trial court's factual findings because

the trial court stands in the best position to weigh the credibility of the witnesses." In re

Floyd,

(1995); see also Coleman,

(noting that

"the post-conviction trial judge is able to observe and hear the witnesses at the

evidentiary hearing and, therefore, occupies a 'position of advantage in a search for the

truth' which 'is infinitely superior to that of a tribunal where the sole guide is the printed

record' " (quoting Johnson v. Fulkerson,

(1957))). "A ruling is

manifestly erroneous if it contains error that is clearly evident, plain, and indisputable."

People v. Hughes,

(2002).

¶ 32 As previously indicated, "[a]n indigent defendant is entitled to appointed counsel

in postconviction proceedings if the petition is not summarily dismissed as frivolous or 14 patently without merit." People v. Lander,

(2005). "A defendant is

entitled only to the level of assistance required by the Act, however, because the right to

counsel is wholly statutory and is not mandated by the Constitution."

"That

assistance has been defined by [the supreme] court to mean a 'reasonable' level of

assistance." People v. Flores,

(1992); see also People v. Turner,

(1999) ("It is well settled that the Act requires counsel to provide a

'reasonable level of assistance' to [a] petitioner in post-conviction proceedings.").

¶ 33 B. Strickland v. Washington

¶ 34 In People v. Albanese,

(1988), the supreme court adopted the

standard set forth in Strickland v. Washington,

(1984), for determining

whether a criminal defendant was denied effective assistance of trial counsel under both

the state and federal constitutions. People v. Chatman,

(1995).

To succeed on a claim of ineffective assistance of counsel under the Strickland standard,

a defendant must show that counsel's performance fell below an objective standard of

reasonableness and that counsel's deficient performance resulted in prejudice. People v.

Ross,

(2008); People v. Shaw,

(1998). "Further,

in order for a defendant to establish that he suffered prejudice, he must show a reasonable

probability that, but for counsel's deficient performance, the result of the proceedings

would have been different." People v. Burt,

(2001). "Because a

defendant must establish both a deficiency in counsel's performance and prejudice

resulting from the alleged deficiency, failure to establish either proposition will be fatal to

the claim." People v. Sanchez,

(1996). 15 ¶ 35 "Neither mistakes in strategy nor the fact that another attorney with the benefit of

hindsight would have proceeded differently is sufficient to establish ineffective assistance

of counsel." People v. Dobbs,

(2004). Additionally, a

defendant "cannot rely on speculation or conjecture to justify his claim of incompetent

representation." People v. Holman,

(1995). "Counsel is presumed to

know the law" (People v. Perkins,

(2007)), and "a court must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action 'might be considered sound trial strategy' "

(Strickland,

(quoting Michel v. Louisiana,

(1955))).

¶ 36 C. The Defendant's Claims

¶ 37 Because trial counsel and postconviction counsel serve different roles, because a

postconviction petitioner has "already been stripped of the presumption of innocence,"

and because the right to postconviction counsel is not constitutionally required, the

reasonable level of assistance required under the Act is not coextensive with the level of

assistance required under Strickland. People v. Owens,

(1990);

People v. Gully,

(1993). The Act does "not guarantee that [a

petitioner] will receive the same level of assistance that the Constitution guarantees to

defendants at trial." Owens,

; see also People v. Davis,

(2009) (noting that a defendant "is not constitutionally entitled to the effective

assistance of counsel at a postconviction proceeding" but is rather entitled to a

"reasonable level of assistance"). "Strickland is thus not applicable" or at least "not 16 automatically applicable" to claims that postconviction counsel's assistance was less than

reasonable. People v. Perkins,

(2006), rev'd on other

grounds,

(2007). It has been suggested, however, that although Strickland

"is not the relevant standard" for addressing such claims, "the Strickland test is an

essential standard for comparison." Id. at 901. It 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. Here, evaluating the defendant's complaints regarding Brian's

performance under the elevated Strickland standard, his claim that he was denied the

right to reasonable assistance still fails.

¶ 38 1. Failure to Cite Controlling Law

¶ 39 The defendant argues that Brian "failed to cite controlling law" in support of her

argument that the State violated the defendant's sixth amendment right to counsel. See

People v. Kelly,

(holding that postconviction

counsel failed to provide a reasonable level of assistance where counsel failed to cite

"controlling Supreme Court precedent," failed to present the defendant's arguments in

appropriate legal form, allowed the defendant's petition to languish for years, and made

comments indicating that counsel "either lacked basic knowledge of the Act or

fundamentally misunderstood it"). The controlling precedent in the present case was

Card, however, and the defendant concedes that his cause was remanded for an

evidentiary hearing to determine whether there was a constitutional violation under Card.

Nevertheless, citing Boyd v. Dutton,

(1972), the defendant suggests that Brian 17 should have argued that the waiver of the right to counsel "will not be 'lightly presumed,'

and a trial judge must 'indulge every reasonable presumption against waiver.' "

at 3

(quoting Johnson v. Zerbst,

(1938)). The issue in Boyd, however, was

whether the defendant had knowingly and voluntarily waived the right to counsel where

"the material facts bearing upon that issue were inadequately developed in the state court

post-conviction hearing." Id.; see also Cormier v. Saba,

(D.

Mass. 2013) (noting that in Johnson, "the Supreme Court addressed the conviction of a

man who had never been offered an attorney by the trial court, had been denied one by

the District Attorney, and who apparently was never informed of his right to counsel").

Moreover, the Boyd Court recognized that the right to counsel may be waived by a

"voluntary and knowing action" (

), which is consistent with Card and the

United States Supreme Court cases upon which Card was decided (see Michigan v.

Jackson,

(1986), overruled on other grounds by Montejo v. Louisiana,

(2009); Edwards v. Arizona,

(1981); Card,

). "[C]ounsel is not required to raise losing arguments to avoid an ineffective-

assistance claim" (People v. Cavazos,

), and the

defendant's claim that Brian failed to argue controlling authority is without merit.

¶ 40 2. Failure to Bolster the Defendant's Claims Regarding Counsel's Withdrawal

¶ 41 On February 8, 2008, Cunningham filed his notice and motion to withdraw with

the trial court and certified that on February 7, 2008, he had forwarded copies of the same

to the defendant at the defendant's prison address. Cunningham did not, however,

include the defendant's inmate number in the prison address listed on the filed notice. In 18 its February 25, 2008, order granting Cunningham leave to withdraw, the trial court

directed him to serve the defendant with a copy of the order pursuant to Illinois Supreme

Court Rule 13 (eff. July 1, 1982) and further directed the circuit clerk to forward a copy

of the order to the defendant. On March 5, 2008, the copy that the circuit clerk attempted

to forward was returned as undeliverable due to the clerk's failure to include the

defendant's correct inmate number in his prison address. It is unclear whether the

defendant ever received a copy of the notice or the order from Cunningham.

¶ 42 On appeal, the defendant suggests that Brian should have used the incomplete

address on Cunningham's notice to corroborate the defendant's testimony that he never

received the notice. The defendant specifically claims that Brian "never pointed out the

address error in the [n]otice" and "failed to use the incomplete address on the February

2008 [n]otice to corroborate [his] testimony that he did not receive the [n]otice." These

claims, however, are somewhat misleading, if not belied by the record.

¶ 43 When Brian argued that the defendant had previously been unaware that

Cunningham had withdrawn, the trial court asked her about the notice that Cunningham

had allegedly mailed to the defendant on February 7, 2008. In response, Brian referenced

the defendant's testimony that he had not received the notice and then stated the

following:

"I believe you also see in your file marked March 5, 2008, is a returned

envelope. The Circuit Clerk's mail never got to [the defendant] either. So, I think

it's clear from the testimony and from the returned mail that [the defendant] never

19 got any notice of hearing or any notice of his attorney withdrawing and had no

idea that was going to be happening at all."

Later, when the trial court again inquired about the notice that "was supposedly mailed on

February 7, 2008," Brian stated the following:

"Well, we have to go by his testimony, your Honor, that he never received

any letters or any mail or anything, correspondence, from Mr. Cunningham as he

testified to. And I just want to point out that [the] letter was returned showing that

the Circuit Clerk tried to mail him a letter to what they thought was his address.

The same thing could have happened to Mr. Cunningham. He filed a notice. He

filed a certificate of service. It could have well been returned to Mr. Cunningham

just like the Circuit Clerk's letter was returned."

¶ 44 Although Brian did not specifically point out that the circuit clerk's mailing had

not included the defendant's correct inmate number or that the address listed on

Cunningham's notice had not included an inmate number at all, both documents were

before the court, and the deficiencies are apparent when viewed in light of Brian's

arguments. Contrary to the defendant's intimations on appeal, Brian thus used the

evidence to corroborate his testimony that he had not received the notice.

¶ 45 We note that the trial court ultimately determined that the defendant's testimony

regarding his encounter with Hahn was not credible and that "[f]rom the context and

circumstances," it was "apparent to the court" that the defendant had been aware that

Cunningham was no longer representing him when he initiated the plea discussions with

Hahn. Moreover, although the defendant suggests that his underlying claim "hinged" in 20 part on when he became aware that Cunningham had withdrawn, the relevant inquiry was

who had initiated the encounter in the hallway. See Card,

. A

defendant who has previously invoked the right to counsel voluntarily waives that right

by initiating contact with the State, whether or not he was represented by counsel when

the contact was made. See Montejo,

; Michigan v. Harvey,

(1990). Whether the defendant was aware that Cunningham had previously

withdrawn was only relevant to his claim that he had felt "abandoned" and "ambushed"

when Hahn allegedly approached him and informed him that Cunningham had "quit."

Brian used the documents at issue to further that claim, but the trial court obviously

rejected the defendant's testimony as self-serving. See People v. Newbolds,

(1990). Additionally, as indicated, the defendant's constitutional claim

hinged on who had initiated the conversation in the hallway, irrespective of whether the

defendant was aware that Cunningham had previously withdrawn. Under the

circumstances, the defendant is unable to establish either of Strickland's propositions with

respect to his assertion that Brian failed to use available evidence to corroborate his

testimony regarding Cunningham's notice.

¶ 46 3. Failure to Call Newlin as a Corroborating Witness

¶ 47 The defendant asserts that Brian's "most egregious oversight" was her failure to

call Newlin as a corroborating witness "despite the fact that he was named in the pro se

petition and had already provided an affidavit." The defendant intimates that had Newlin

testified, there is a reasonable probability that the outcome of the evidentiary hearing

would have been different. "Counsel's decision whether to present a particular witness is 21 generally a strategic choice which cannot support a claim of ineffective assistance of

counsel" (People v. Richardson,

(2000)), however, and the defendant

is again unable to satisfy either prong of Strickland.

¶ 48 "It is well established that decisions concerning whether to call certain witnesses

for the defense are matters of trial strategy left to the discretion of trial counsel." People

v. Banks,

(2010); see also People v. Negron,

(1998) ("Decisions concerning which witnesses to call at trial and what evidence to

present are matters of trial strategy, and cannot form the basis for a claim of ineffective

assistance of counsel unless a strategy is so unsound that counsel can be said to have

entirely failed to conduct any meaningful adversarial testing."). It is strategically sound

for counsel to not call a witness whose testimony would be of "questionable value"

(People v. Guest,

(1995)) or whose testimony could potentially harm

a defendant's case (Marshall,

; People v. Smado,

(2001); People v. Peterson,

(1993)).

¶ 49 Here, Newlin and the defendant were fellow inmates in March 2008, and

according to the Illinois Department of Corrections' website, Newlin has been convicted

of numerous felony offenses in Lawrence County. See Rodriguez v. Illinois Prisoner

Review Board,

(2007) (noting that a court can take judicial

notice of information posted on the Illinois Department of Corrections' official website).

In No. 07-CF-78, he was convicted of attempted burglary; in No. 08-CF-22, he was

convicted of domestic battery; in No. 09-CF-85, he was convicted of burglary; in No. 10-

22 CF-158, he was convicted of possession of methamphetamine; and in No. 13-CF-21, he

was again convicted of possession of methamphetamine.

¶ 50 "The trial court has discretion to allow a party to impeach a witness with that

witness's prior conviction for a felony or other crime involving dishonesty if that

conviction, or the witness's release date from prison, was within 10 years." People v.

Collins,

(2006). "Additionally, the Illinois Supreme Court has

found that a defense attorney properly may choose not to interview or call a witness who

could be subject to severe impeachment." Smado,

(citing Guest,

). With these considerations in mind, not calling Newlin as a

corroborating witness was "understandable" and "well within defense counsel's

permissible latitude." Peterson,

. As a matter of strategy, Brian

could have reasoned that Newlin's testimony would have had negligible value or might

have backfired to the detriment of the defendant's case. In any event, "that another

attorney with the benefit of hindsight would have proceeded differently" does not

demonstrate that Brian's representation was objectively unreasonable. Dobbs,

.

¶ 51 The defendant is also unable to demonstrate that there is a reasonable probability

that the result of the evidentiary hearing would have been different had Newlin testified.

As noted, when denying the defendant's amended petition, the trial court determined that

the defendant's version of what had occurred in the hallway outside the courtroom was

simply "not credible." The defendant's intimation that the trial court would have found

otherwise had Newlin testified is speculation that is insufficient to establish prejudice 23 under Strickland. People v. Bew,

(2008) ("Strickland requires actual

prejudice be shown, not mere speculation as to prejudice."). We lastly note that the same

trial judge presided over all three stages of the defendant's postconviction proceedings, so

the trial court was obviously aware of Newlin's affidavit.

¶ 52 4. Brian's Rule 651(c) Certificate

¶ 53 "Supreme Court Rule 651(c) imposes specific obligations on postconviction

counsel to assure the reasonable level of assistance required by the Act." People v.

Lander,

(2005).

"Rule 651(c) requires that the record show counsel has: (1) consulted with the

defendant either by mail or in person to ascertain his claims of deprivation of

constitutional rights; (2) examined the record of the trial court proceedings; and

(3) made any amendments to the pro se petition necessary for an adequate

presentation of the defendant's contentions. [Citation.] Compliance with the

duties set forth in Rule 651(c) is mandatory [citation], and may be shown by a

certificate filed by postconviction counsel. [Citation.] The failure to file a

certificate showing compliance with Rule 651(c) is harmless error if the record

demonstrates that counsel adequately fulfilled the required duties."

¶ 54 In May 2013, approximately a month after the evidentiary hearing, Brian filed a

certificate stating the following:

"I, Abbey M. Brian, Attorney at Law, hereby certify that on November 28,

2012, I was appointed by the Circuit Court of Lawrence County, Illinois[,] to

represent the Defendant, JOHN HOTWAGNER, in regard to a Petition for Post- 24 Conviction Relief filed pursuant to 730 ILCS 5/5-8-1 [sic], further, I certify that

after my appointment on behalf of Defendant in said cause[,] I took numerous

actions required by statute. First, Counsel has reviewed all of the contents of the

court file and ha[s] investigated the Defendant's contentions of error[,] and, in

addition, I have read all transcripts from the sentencing hearing and the appellate

court and have personally corresponded with the Defendant by mail and met with

the Defendant in person and advised the Defendant as to his legal rights pursuant

to both relevant statutes of the State of Illinois relating to Post-Conviction Relief."

¶ 55 On appeal, noting that Brian's certificate fails to affirm that she ever "consulted"

with the defendant about his underlying claim, the defendant argues that the certificate

fails to demonstrate that Brian complied with the requirements of Rule 651(c). Because

the defendant's claim of constitutional deprivation was ascertained long before her

appointment, however, there was no need for Brian to have "consulted" with the

defendant for purposes of Rule 651(c).

¶ 56 Rule 651(c) recognizes that "[t]o ensure that the complaints of a prisoner might be

adequately presented, the [Act] 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,

(1993). However,

"Rule 651(c) does not require third-stage counsel to duplicate the efforts of second-stage

counsel." Marshall,

.

25 ¶ 57 Here, as evidenced by Hartrich's Rule 651(c) certificate, during the second-stage

proceedings, Hartrich "consulted with the [defendant] in person to ascertain his

contentions of deprivation of constitutional rights." Hartrich then shaped the defendant's

sixth amendment claim into appropriate legal form and filed an amended petition on the

defendant's behalf. After the defendant's cause was remanded for an evidentiary hearing,

Brian was appointed third-stage counsel. Her role was to argue the merits of the

defendant's claim as previously framed by Hartrich. See Marshall,

. She was not, however, required to consult with the defendant to ascertain the nature

of his claim or to file an amended petition on his behalf. See

Those interrelated

duties had previously been fulfilled by Hartrich at the second stage. The only remaining

Rule 651(c) obligation was that Brian examine the transcript of the trial court

proceedings, which, like Hartrich, she certified she had done. We note that Brian also

certified that she had corresponded with the defendant by mail and had met with him in

person. In November 2013, Brian further filed an itemized list of attorney fees indicating

that she had twice conferred with the defendant in person prior to the evidentiary hearing.

Any consultation Brian had with the defendant would have pertained to the presentation

of his claim, however, not its ascertainment. We further note that Brian's familiarity with

the defendant's claim and the court record is apparent from the transcript of the

evidentiary hearing.

¶ 58 Lastly, pointing to the certificate's incorrect statutory citation and ambiguous

reference to "both relevant statutes," the defendant intimates that Brian's certificate

suggests that she was generally incompetent to represent him. The defendant contends 26 that Brian's certificate indicates "confusion as to the basics of the Act and her role in

representing [the defendant]" and "calls into question whether [she] had even a basic

knowledge of the Act." In response, the State argues that because Brian "was under no

obligation to file a Rule 651(c) certificate at all" (see Marshall,

(holding that third-stage counsel was not required to file a Rule 651(c) certificate where

second-stage counsel had already met the rule's requirements)), the "scrivener's errors in

the certificate from which [the] defendant coaxes his contention that Brian did not

understand the Act are therefore irrelevant."

¶ 59 As previously noted, "[t]he failure to file a certificate showing compliance with

Rule 651(c) is harmless error if the record demonstrates that counsel adequately fulfilled

the required duties." Lander,

. It follows that filing a poorly-drafted

certificate is harmless error if the record demonstrates that counsel was otherwise

competent and fulfilled her required duties. Moreover, "[i]n reviewing a claim of

ineffective assistance of counsel, a court must consider defense counsel's performance as

a whole and not merely focus upon isolated incidents of conduct." People v. Max,

.

¶ 60 Here, Brian's certificate suggests that it was drafted from or based on a previously

filed certificate from a case involving a sentencing issue. It further suggests that in light

of what Hartrich had already done as second-stage counsel, Brian was uncertain as to

what she needed to certify. As discussed above, the only Rule 651(c) requirement that

was arguably relevant under the circumstances was that she examine the transcript of the

trial court proceedings. She indicated, however, that in addition to familiarizing herself 27 with the transcript and the court file, she had investigated the defendant's claim, had met

and corresponded with him, and had advised him as to certain rights. Although

somewhat cryptic, Brian's certificate cannot be deemed dispositive proof that she was

confused about her role or lacked a basic understanding of the Act. Moreover, Brian

competently presented and argued the defendant's sixth amendment claim at the

evidentiary hearing and thus fulfilled her third-stage obligation. Thus, even assuming

that Brian needed to file a Rule 651(c) certificate, we find that the certificate's errors that

the defendant emphasizes on appeal are harmless under the circumstances and do not

support his contention that he was denied the reasonable level of assistance required

under the Act. Cf. Kelly,

(holding that

postconviction counsel failed to provide a reasonable level of assistance where counsel

failed to cite "controlling Supreme Court precedent," failed to present the defendant's

arguments in appropriate legal form, allowed the defendant's petition to languish for

years, and made comments indicating that counsel "either lacked basic knowledge of the

Act or fundamentally misunderstood it").

¶ 61 III. CONCLUSION

¶ 62 We reject the defendant's argument that his cause must be remanded for a new

evidentiary hearing with new postconviction counsel because Brian failed to provide him

with the reasonable level of assistance required under the Act. That another attorney with

the benefit of hindsight would have handled the case differently does not establish that

her representation was deficient. See Dobbs,

. Further, we again

note that the trial court's denial of the defendant's amended petition ultimately turned on 28 its determination that the defendant was not credible. For the foregoing reasons, the trial

court's judgment is hereby affirmed.

¶ 63 Affirmed.

29

NO. 5-13-0525 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 07-CF-152 ) JOHN HOTWAGNER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. __________________________________________________________________________

Opinion Filed: October 22, 2015 __________________________________________________________________________

Justices: Honorable S. Gene Schwarm, J.

Honorable Judy L. Cates, P.J., and Honorable Richard P. Goldenhersh, J., Concur __________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Maggie A. Heim, Assistant Appellate Defender, Office of Appellant the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 __________________________________________________________________________

Attorneys Hon. Christopher M. Quick, State's Attorney, Lawrence County for Courthouse, Courthouse Square, Lawrenceville, IL 62439, Patrick Appellee Delfino, Director, Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 __________________________________________________________________________