FIRST DIVISION July 18, 2016

No. 1-13-2573

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 98 CR 3865 ) MICHAEL RIVERA, ) Honorable ) Thomas Joseph Hennelly, Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 Defendant Michael Rivera appeals from the circuit court's granting of the State's motion

to dismiss his post-conviction petition. Defendant, John Crowe and four others were charged

with first degree murder in the 1998 shooting death of Marcus Lee. To support a claim of actual

innocence, defendant attached to his petition Crowe's affidavit in which he attested that he, and

not defendant, shot the victim. In this appeal, defendant contends the circuit court erred in

dismissing his petition at the second stage of post-conviction proceedings after reviewing the

transcript of Crowe's guilty plea hearing and finding Crowe's affidavit was not credible. He

further asserts his post-conviction counsel provided unreasonable assistance under Illinois No. 1-13-2573

Supreme Court Rule 651(c) (eff. Dec. 1, 1984) by failing to object to the circuit court's

consideration of that transcript.

¶2 To summarize the facts adduced at defendant's trial, defendant was a member of the

Insane Deuces street gang. In the early morning hours of January 10, 1998, defendant was riding

in a van with other gang members, including Crowe and his brother, Stephen Crowe. Defendant

saw Lee walking and mistakenly believed him to be a member of a rival gang. Defendant pointed

a gun at the van driver and told him to stop. Defendant and the Crowe brothers got out of the van

and returned after shots were fired. Defendant was holding the gun when they returned to the

van. Defendant later showed the gun to other gang members and said he was a "Stone killer."

¶3 Defendant's jury trial took place in 2000, and he was found guilty of first degree murder.

The trial court determined that defendant was eligible for an extended-term sentence as the

leader of an organized gang (730 ILCS 5/5-5-3.2(b)(8) (West 1998)), and the court sentenced

defendant to 85 years in prison. On appeal, this court affirmed defendant's conviction and

sentence. People v. Rivera,

(2004). The Illinois Supreme Court

remanded defendant's case for a limited hearing to allow the trial judge to articulate the bases for

his rulings on the defense's exercise of peremptory challenges. People v. Rivera,

(2006). Following that remand, the supreme court affirmed defendant's conviction and

sentence, finding that any issue regarding a peremptory challenge in defendant's case constituted

harmless error, given the strength of the State's case against defendant. People v. Rivera,

(2007); see also Rivera v. Illinois,

(2009) (affirming the use of a

harmless error analysis).

¶4 On January 10, 2008, defendant filed a pro se petition seeking relief under the Post-

Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2006)), claiming, inter alia,

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that the evidence was insufficient to establish his guilt and his trial counsel provided deficient

representation for several reasons.

¶5 Defendant also raised a claim of actual innocence, supported by an affidavit of Crowe.

Defendant stated in the petition that police "arrested and detained close to a dozen Deuces'

suspects" who provided varying accounts of the shooting. Defendant asserted he had obtained an

affidavit from Crowe "who has fully confessed to the crime of which the Petitioner was wrongly

convicted of."

¶6 Crowe and his brother were tried jointly in 1998 for Lee's death, and Crowe was

convicted of first degree murder on an accountability theory and sentenced to 50 years in prison. 1

On appeal, this court reversed Crowe's conviction and remanded for a new trial because Crowe

was deprived of his right to be represented by the counsel of his choice. People v. Crowe,

(2002). On remand, Crowe entered a guilty plea.

¶7 In Crowe's affidavit, which was dated April 9, 2004, he attested that he and his brother

were in the van with other individuals on the night in question. Crowe did not mention defendant

was present. Crowe attested he and his brother got out of the van after someone pointed out a

rival gang member. Crowe stated that he fired five shots and one shot struck Lee in the neck.

Crowe concluded by stating he was "giving this affidavit because my conscience has made it

very difficult to live with myself these last 7 years with Micheal Rivera [sic] having [] convicted

for a murder he did not commit."

¶8 Post-conviction counsel was appointed for defendant. In December 2011, counsel filed a

Rule 651(c) certificate stating that he had consulted with defendant by phone and had obtained

1 Stephen Crowe was acquitted. People v. Crowe,

(2002).

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and examined the report of proceedings of defendant's trial. Counsel stated that defendant's pro

se petition adequately presented his post-conviction claims.

¶9 On September 28, 2012, the State filed a motion to dismiss defendant's post-conviction

petition, asserting Crowe's affidavit did not meet the test for evidence of actual innocence

because it was not newly discovered and was "clearly lacking in reliability." The State

acknowledged that at that stage of post-conviction review, well-pleaded facts in the petition and

accompanying affidavits were to be taken as true. The State argued Crowe's affidavit represented

an inherently unreliable recantation and his attestations that he fired the fatal shots and that

defendant was not present at the time of the shooting were "positively rebutted by the record."

¶ 10 On January 25, 2013, the circuit court heard arguments on the State's motion to dismiss.

As to Crowe's affidavit, the State asserted that his attestation that he was the gunman was

rebutted by Crowe's January 2004 guilty plea proceedings. The State further argued Crowe's

affidavit was rebutted by the testimony at defendant's trial that defendant was the shooter. Post-

conviction counsel offered no argument, stating he would "stand on the pro se petition" of

defendant. The circuit court stated it would "review the record and the pleadings and the

arguments" of the State.

¶ 11 At a later court date, the circuit court indicated it had reviewed the record and Crowe's

affidavit. The court noted that Crowe's conviction had been reversed and he had entered a guilty

plea. The court asked the State for a transcript of the court proceedings on Crowe's plea.

¶ 12 The following colloquy then took place:

"THE COURT: I don’t imagine it is a very long transcript, but from what I can

see from the record, his case was reversed, I don’t know why, and after the reversal there

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was probably some agreement he reached with the State for something lesser would be

my guess.

MR. PAPA [assistant State's Attorney]: 20 years.

MR. LANDRUM [post-conviction counsel]: It is probably important to see what

the factual basis was.

THE COURT: Exactly. You are reading my mind, Mr. Landrum. We are

thinking alike here."

¶ 13 The circuit court told the attorneys that it would obtain the transcript. At the next court

date, the court told the attorneys it had obtained "a copy of the plea" taken by Crowe.

¶ 14 In support of the motion to dismiss defendant's petition, the State argued it was "pretty

obvious that the plea that Mr. Crowe was sworn to refutes the affidavit that he has signed several

years, I believe, after the plea." The State asserted that the record "absolutely rebuts any of the

allegations in the affidavit as well as the rest of the record." Post-conviction counsel for

defendant offered no argument.

¶ 15 In granting the State's motion to dismiss, the circuit court stated:

"Much of the petition as pointed out in the State's motion is * * * res judicata []

has already been ruled on.

I do not believe the ineffective assistance issue passes the Strickland muster at all.

The only thing that really concerns me was this new affidavit by the co-defendant

Mr. Crowe which was dated on April 9th of 2004 and as the State points out, these things

are usually viewed with suspicion particularly when they are executed by a co-defendant,

a fellow gang member as well.

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Case law is replete with examples of that. This is not something to be based – the

credibility is always – credibility is always suspect in something like this.

And as a result I ordered the transcript as Mr. Papa points out of the plea that Mr.

Crowe took before Judge Wadas on the 7th of January, 2004.

And he was placed under oath in that he was represented by counsel.

And in that plea he completely contradicts everything that's contained in the

affidavit and it's kind of confirms [sic] my suspicions.

So not only is Mr. Crowe involved in this murder committed by Mr. Rivera but he

is an unmitigated perjurer and not to be believed in any way shape or form.

There is absolutely no truthful basis for anything that he says in this affidavit.

And because of that there is nothing in this Mr. Rivera's petition that would cause

me to grant him a post-conviction [sic].

The motion to dismiss is considered and is granted."

¶ 16 Defendant now appeals that ruling.

¶ 17 The Act provides a method by which offenders serving their sentence can assert that their

convictions were the result of a substantial denial of their rights under the United States or

Illinois constitutions or both. People v. Tate,

, & 8. A post-conviction action is

not an appeal from the judgment of conviction but is instead a collateral attack on the trial court

proceedings.

¶ 18 In a non-capital case, a post-conviction proceeding involves three stages. At the first

stage, the circuit court must review the petition within 90 days of its filing and dismiss the

petition upon finding it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a) (West

2006); People v. Swamynathan,

(2010). Where, as here, that review does not

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take place within 90 days, the petition advances to the second-stage, where the circuit court must

docket the petition for further consideration. 725 ILCS 5/122-2.1(b) (West 2006).

¶ 19 At the second stage of post-conviction proceedings, counsel is appointed for the

defendant if the defendant is indigent, and the State may answer or move to dismiss the petition.

725 ILCS 5/122-5 (West 2006). By moving to dismiss the petition, the State challenges the

sufficiency of the pleadings as a matter of law. People v. Coleman,

(1998).

"Since there are no factual issues at the dismissal stage of the proceedings, the question is

essentially a legal one, which requires the reviewing court to make its own independent

assessment of the allegations of the petition and supporting documentation." People v. Sanders,

, & 31, citing Coleman,

. All well-pleaded facts that are not

positively rebutted by the trial record are to be taken as true at a dismissal hearing.

.

The circuit court's dismissal of a post-conviction petition at the second stage is reviewed de

novo. Sanders,

, & 31.

¶ 20 If the petition is not dismissed at this stage, the proceedings then advances to the third

stage, where a hearing is held at which the defendant may present evidence in support of the

petition. 725 ILCS 5/122-6 (West 2006); People v. Pendleton,

(2006). At a

third-stage evidentiary hearing, the trial court acts as the finder of fact, determining the

credibility of witnesses and the weight to be given particular testimony and resolving any

conflicts in the evidence. People v. Domagala,

, & 93. Throughout the second

and third stages of a post-conviction proceeding, the defendant bears the burden of making a

substantial showing of a constitutional violation. Pendleton,

.

¶ 21 In this appeal, defendant contends the circuit court erred in obtaining and considering

evidence outside the record and assessing the credibility of Crowe's affidavit at the second stage

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of post-conviction review. He also argues his post-conviction counsel failed to provide

reasonable assistance by effectively agreeing that the court should consider the transcript of

Crowe's guilty plea proceedings. Defendant asserts this case should be remanded for further

second-stage proceedings in front of a different judge and with representation by different

appointed counsel.

¶ 22 The State responds that the circuit court could compare the factual allegations in the

affidavit to the stipulated facts from Crowe's plea proceeding. The State argues that the court's

consideration of Crowe's plea was proper under Rule 201(b)(2) of the Illinois Rules of Evidence

(Ill. R. Evid. 201(b)(2) (eff. Jan. 1, 2011)), which permits judicial notice of adjudicative facts

that are "capable of accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned."

¶ 23 While we do not dispute that the Rules of Evidence apply to this case, we find more

pertinent section 122-2.1(c) of the Act, which specifically governs post-conviction petitions, and

which provides:

"In considering a petition pursuant to this Section, the court may examine the

court file of the proceeding in which the petitioner was convicted, any action taken by an

appellate court in such proceeding and any transcripts of such proceeding."

725 ILCS 5/122-2.1(c) (West 2006).

¶ 24 That section of the Act limits the review related to a post-conviction petition to the record

of that particular proceeding. Section 122-2.1(c) of the Act was recently addressed by our

supreme court in Sanders,

, & 43, where the court stated: "The Act itself

contemplates that the trial court will look only to the record of the subject petitioner's case."

(Emphasis added.)

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¶ 25 We find Sanders to govern our analysis in the instant case. In Sanders, the defendant

filed a successive post-conviction petition alleging newly discovered evidence of actual

innocence. Attached to that petition was a transcript of testimony that a co-defendant, Gary

Bingham, gave at an evidentiary hearing on a post-conviction petition filed by another co-

defendant, Aaron May.

& 14. In that testimony, Bingham recanted his identification of the

defendant and May as participants in the crime.

& 16. In granting the State's motion to

dismiss the defendant's petition, the circuit court held that it had heard Bingham testify at two

prior evidentiary hearings and found Bingham "to be a complete liar. Totally incredible and not

worthy of belief."

& 19. The court indicated that it considered Bingham's testimony from the

prior evidentiary hearings as part of the record in the instant case.

¶ 26 The appellate court affirmed the circuit court's grant of the motion to dismiss the petition,

noting the circuit court had "heard Bingham's full testimony at a post-conviction evidentiary

hearing and found it unreliable and untrustworthy." People v. Sanders,

, & 22. The appellate court rejected the defendant's argument that the circuit court made

an improper credibility determination as to Bingham's testimony.

¶ 27 The supreme court held that the circuit court erred in finding Bingham not credible based

on its consideration of his testimony at the previous hearing, noting that credibility

determinations could only be made at a third-stage evidentiary hearing. Sanders,

, & 42. The supreme court further held that when the circuit court dismissed the

defendant's petition, the court should not have considered the record of May's post-conviction

evidentiary hearing, which the supreme court deemed "outside the record of petitioner's case."

Sanders,

, && 42-44.

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¶ 28 Interpreting section 122-2.1(c) of the Act, the supreme court noted that although that

section "governs trial court actions on an initial petition, there is no indication in the Act that the

trial court has authority to look beyond the record at later stages in the proceedings."

& 44.

The supreme court rejected the contention that the trial court could consider "the record of

proceedings not involving the petitioner whose case is before the court."

Noting, however,

that it could affirm the appellate court's judgment on any basis supported by the record, the

supreme court affirmed the dismissal of the defendant's petition at the second stage of review.

Sanders,

, & 55. Although the supreme court found in Sanders that the circuit

court improperly considered evidence outside of the record in that defendant's case, the supreme

court went on to affirm the dismissal of the defendant's petition, finding that Bingham's

recantation "merely adds conflicting evidence to the evidence adduced at the trial."

& 52.

The supreme court held that even if the recantation was taken as true, it was not of such

conclusive character as to probably change the result on retrial.

¶ 29 In the case at bar, the State relies in part on the appellate court decision in Sanders to

argue that the circuit court in this case could consider the record of Crowe's plea proceedings. In

defendant's reply brief, which was filed several days after the supreme court's opinion in Sanders

was issued, he asserts that "the State does not cite a case wherein a court of review found that a

circuit court committed such an error [of making a credibility determination] and proceeded to

affirm despite that error." We find Sanders to be such a case.

¶ 30 Again, we review de novo the dismissal of a post-conviction petition at the second stage

of proceedings.

& 55. Where a defendant raises a claim of actual innocence, the relevant

inquiry at the second stage of post-conviction review is whether the defendant has made a

substantial showing of actual innocence so as to warrant an evidentiary hearing.

& 37.

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Evidence in support of an actual innocence claim "must be newly discovered; material and not

merely cumulative; and 'of such conclusive character that it would probably change the result on

retrial.' " People v. Ortiz,

(2009), quoting People v. Morgan,

(2004). The "conclusiveness of the new evidence is the most important element of an actual

innocence claim." Sanders,

, & 47.

¶ 31 As in Sanders, Crowe's affidavit is not of such conclusive character that it would

probably change the result on retrial. We note that the supreme court described the evidence of

defendant's guilt in this case as "overwhelming." Rivera,

. The State presented

testimony from witnesses who were with defendant before, during and after the shooting. Susan

Shelton testified she was with defendant and several members of the Insane Deuces at a party on

January 9, 1998, and was in the van with defendant, the Crowe brothers and others. Shelton

testified that John Crowe and defendant got out of the van and disappeared from her sight.

Shelton heard gunshots, and defendant returned to the van holding the gun. In addition, Michael

Rodriguez, a member of the Insane Deuces, testified he saw defendant with two weapons that

evening and defendant told him later that night that he was a "Stone killer."

¶ 32 At the second stage of post-conviction review, all well-pleaded facts not positively

rebutted by the trial record are to be taken as true. Coleman,

. Accepting as true

Crowe's representation in his affidavit that he, and not defendant, shot the victim, that scenario

does not necessarily exonerate defendant. See People v. Collier,

(2008)

(the hallmark of actual innocence is total vindication or exoneration, not whether a defendant has

been proved guilty beyond a reasonable doubt). Although Crowe's affidavit does not say that

defendant was present in the van, he does not say defendant was not present. Moreover, the

testimony of Shelton and Rodriguez places defendant squarely in the middle of these events.

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Shelton testified that defendant and Crowe got out of the van together and returned after shots

were fired. Even presuming arguendo that Crowe was the gunman, defendant would still be

criminally accountable for Crowe's actions.

¶ 33 As in Sanders, the circuit court in this case erred in making a credibility determination as

to Crowe's affidavit at the second stage of post-conviction review and based on its consideration

of materials outside the record in defendant's case. However, our de novo review reveals that

because Crowe's affidavit would not change the result on retrial, we conclude that defendant has

not made a substantial showing of actual innocence, and his post-conviction petition was

properly dismissed at the second stage.

¶ 34 As a final matter, we address defendant's contention that his post-conviction counsel did

not provide reasonable assistance. We conclude that post-conviction counsel's representation of

defendant did not fall below the standard required by Rule 651(c).

¶ 35 Under the Act, post-conviction counsel is required to provide a defendant who has filed a

petition with a reasonable level of assistance. People v. Morgan,

, &

92. Those duties include consultation with the defendant to ascertain his contentions of a

deprivation of constitutional rights, examination of the record of proceedings and trial, and the

amendment of the defendant's petition if such amendment is necessary to adequately present

those contentions. Ill. S. Ct. R. 651(c). If counsel believes that the claims made in his client's

petition are frivolous or without merit, counsel's ethical obligation at the second stage of post-

conviction proceedings is to seek to withdraw. People v. Greer,

(2004).

¶ 36 The filing of a certificate under Rule 651(c) by post-conviction counsel signifies those

duties have been fulfilled and creates a rebuttable presumption that post-conviction counsel has

provided the reasonable assistance contemplated by the Act. Morgan,

,

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& 92, citing People v. Perkins,

(2007). A defendant has the burden of

overcoming that presumption by demonstrating that counsel failed to substantially comply with

the duties set out in Rule 651(c). People v. Profit,

, & 19. The

presumption that the defendant received the required representation may be rebutted by the

record. People v. Hayes,

, & 12.

¶ 37 Defendant does not assert that his post-conviction counsel failed to fulfill the particular

duties enumerated in Rule 651(c). Rather, defendant contends that counsel's obligations extend

beyond the strictures of the Rule. He cites cases in which post-conviction counsel's performance

has been deemed unreasonable where, for example, counsel did not respond to the State's motion

to dismiss the petition. See People v. Powers,

(2007). Here, defendant

claims his post-conviction counsel provided unreasonable assistance by not challenging the

circuit court's decision to consider the transcript of Crowe's guilty plea proceeding to assess his

credibility and, in fact, expressly agreeing with the court's decision to do so.

¶ 38 Defendant relies on People v. Shortridge,

, which we do not

find analogous to the facts at bar. In Shortridge, the defendant's post-conviction petition was

dismissed at the second stage of review after post-conviction counsel "confess[ed]" or agreed to

the State's dismissal motion.

& 6. Shortly thereafter, the defendant filed a pro se response to

the motion to dismiss, which the circuit court refused to consider, stating that post-conviction

counsel continued to represent the defendant.

&& 7-8. On appeal, this court found the

defendant was denied the right to a reasonable level of post-conviction assistance under the Act.

Id.& 16. Noting that post-conviction counsel told the circuit court that the allegations raised by

the defendant were "nonmeritorious," this court held that counsel should have then moved to

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withdraw.

& 14. This court reversed the circuit court's dismissal order should be reversed and

held that new counsel should be appointed to represent the defendant.

& 15.

¶ 39 Here, although counsel commented on the court's decision to review the proceedings on

Crowe's guilty plea, at no point did counsel express the view that defendant's post-conviction

claims were without merit, as occurred in Shortridge. Instead, counsel told the court he would

"stand on the pro se petition" of defendant. Post-conviction counsel is not required to amend a

petition if it would only further a frivolous or patently non-meritorious claim. Greer,

(reasoning that such an amendment is not "necessary" within the meaning of Rule 651(c)).

After counsel elected to stand on the petition, the circuit court decided that it would consider the

proceedings on Crowe's guilty plea in assessing defendant's pro se post-conviction claims.

Unlike in Shortridge, post-conviction counsel's remark in this case that the factual basis for

Crowe's plea was "probably important" did not represent a concession of the petition's merits.

For that reason, the acts of post-conviction counsel in this case did not constitute unreasonable

representation.

¶ 40 In summary, under the supreme court's recent decision in Sanders, the circuit court in this

case erred in weighing an affiant's credibility at the second stage of proceedings and in

considering materials that were outside the record of defendant's case. However, Crowe's

affidavit was not of such conclusive character that it would probably change the result on retrial.

Moreover, defendant's post-conviction counsel provided the reasonable assistance contemplated

under Rule 651(c).

¶ 41 Accordingly, for all of the reasons stated above, the circuit court's dismissal of

defendant's post-conviction petition at the second stage of review is affirmed.

¶ 42 Affirmed.

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