No. 1-14-2758

Third Division November 16, 2016 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Respondent-Appellee, ) ) No. 07 CR 00750 v. ) ) Honorable KEVIN WALLACE, ) Thomas P. Fecarotta, Jr., ) Judge, presiding. Petitioner-Appellant. ) ______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion. OPINION

¶1 Defendant Kevin Wallace appeals from the second-stage dismissal of his amended

petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq.

(West 2012). Defendant contends, for the first time on appeal, that his negotiated concurrent

sentences for first degree murder and arson are void because relevant statutes mandate

consecutive sentences. He argues that he may challenge his sentence at any time under the

void sentence rule and that our supreme court’s recent abolishment of that rule in People v.

Castleberry,

, cannot be applied retroactively to his case. Defendant also No. 1-14-2758

contends that postconviction counsel provided unreasonable assistance for failing to attach

relevant evidence to his petition and failing to amend the petition to overcome a procedural

bar. We affirm.

¶2 I. BACKGROUND

¶3 Following the death of defendant’s father, Ronald Wallace, defendant was charged with

18 counts of first degree murder, two counts of aggravated arson, one count of residential

arson, one count of armed robbery, and one count of robbery. On February 25, 2008,

defendant entered a negotiated guilty plea to one count of first degree murder and one count

of residential arson with concurrent 40-year and 10-year sentences, respectively. During the

hearing on the negotiated plea, the trial court asked the defendant if he understood the nature

of the charges and the rights he was relinquishing by pleading guilty. Defendant answered

affirmatively to each question. The trial court also asked defendant, “Are you under the

influence of any drugs or alcohol at this time?” He replied, “No, sir.” Following the State’s

recitation of a stipulated factual basis, the court accepted defendant’s guilty plea and

sentenced him to the agreed upon concurrent sentences. Defendant did not file a motion to

withdraw his guilty plea and did not file a direct appeal.

¶4 Defendant filed a pro se postconviction petition pursuant to the Act on July 10, 2013. In

the petition, defendant alleged, inter alia, that his plea was “the result of his mental condition

and psychological pressure,” that he “was not reasoning properly for a plea,” and that he was

“under psychotropic medication treatment” and had been “on psychotropic medications since

the age of 13.” He further alleged that his trial counsel was constitutionally ineffective for

failing to investigate “the mental health and drug’s [sic] abuse issue.” Defendant attached

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supporting affidavits from Keith Wallace and Dorothy Wallace to his petition. 1 Keith averred

that defendant had been “on and off of several different psychotropic medications since

before his incarceration” and “during the year of his trial, [defendant] often sounded over-

medicated and unable to carry on a conversation. During court appearances [defendant]

seemed unaware and disconnected.” Dorothy averred that defendant was on “Ritilon” as a

child and saw a psychiatrist when he was older. She was “not sure exactly what he was on,

but they tried several different ones that didn’t seem to help him.” Defendant subsequently

refiled his petition and newly attached various medical records from his incarceration, dating

from 2011 to 2012.

¶5 The trial court docketed defendant’s petition on August 30, 2013, and appointed an

attorney to represent him. Postconviction counsel filed a certificate pursuant to Illinois

Supreme Court Rule 651(c) (eff. Feb. 6, 2013) on December 5, 2013. In the certificate,

counsel asserted that she had consulted with defendant by phone and letter to ascertain his

contentions, examined the “report of proceedings and relevant documents” concerning

defendant’s plea and sentencing, and examined defendant’s petition and the documents

attached to it. She also asserted that she had reviewed documents in defendant’s file and

attached those relevant to her certificate. The attached documents included two orders by the

trial court directing a hospital and correctional center to release defendant’s medical records,

subpoenas to the hospital and correctional center, and a transcript from court proceedings

prior to defendant’s plea. The transcript reflects that defendant was not present in court due

to his hospitalization and that the State tendered 452 pages of mental health records and

1 Keith’s affidavit identifies him as defendant’s brother. Dorothy’s affidavit is silent regarding her relationship to defendant, although defense counsel on appeal identifies Dorothy as defendant’s mother. -3- No. 1-14-2758

intended to tender three additional sets of records. Counsel concluded that the petition

adequately presented his claims and it was not necessary to make any amendments.

¶6 On February 11, 2014, defendant attempted to file a pro se amendment to his petition,

alleging, inter alia, that trial counsel was ineffective for failing to request a fitness hearing at

the time of his guilty plea. The trial court denied defendant leave to file the amendment. The

court subsequently questioned postconviction counsel about the amendment and counsel

stated that she was aware of the amendment but declined to adopt it.

¶7 Three days later, the State filed a motion to dismiss the petition arguing that the petition

was untimely and lacked merit because defendant’s assertions were rebutted by the record

and the defendant’s medical records for years after his plea were irrelevant to his fitness at

the time of his plea. Postconviction counsel responded that the petition’s lateness should be

excused “because of the submitted documents at the negotiated plea of guilty which

recognized his mental illness.” Counsel also argued that the petition had merit because

defendant’s one-word answers to the trial court’s admonishments did not allow the court to

adequately determine his competency to plead.

¶8 The trial court granted the State’s motion to dismiss, finding that nothing during the plea

hearing indicated that defendant was under the influence of psychotropic drugs or raised a

bona fide doubt about his fitness. The court also found that trial counsel’s challenged actions

were trial strategy and therefore not ineffective representation. Finally, the trial court

explicitly stated that it was dismissing the petition “without addressing the timeliness issue.”

Defendant appeals.

¶9 II. ANALYSIS

¶ 10 A. Sentencing Claim

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¶ 11 For the first time on appeal, defendant contends that his agreed upon concurrent

sentences are void because relevant sentencing statutes mandate consecutive sentences, and

therefore, his case must be remanded for resentencing. Acknowledging that he failed to raise

this issue in his postconviction petition, defendant argues that he may still challenge his

sentence because a void sentence may be attacked at any time, citing People v. Marshall,

(2011), and that case’s predecessors.

¶ 12 Before addressing the merits of defendant’s claim, we must first determine whether it has

been waived. The State argues that defendant has waived his sentencing claim by failing to

raise it in his petition. It further argues that the void sentence rule, upon which defendant

relies to overcome his waiver, was abolished by our supreme court’s recent ruling in

Castleberry,

. 2 Defendant acknowledges Castleberry, but argues that the case

established a new rule which cannot be retroactively applied to his claims because his

conviction was final prior to the supreme court’s opinion in Castleberry.

¶ 13 Typically, a defendant waives any claim not raised in his or her postconviction petition.

People v. Jones,

, 148 (2004); see also 725 ILCS 5/122-3 (West 2012). Yet, in

People v. Arna,

(1995), our supreme court established the rule that “[a]

sentence which does not conform to a statutory requirement is void” and consequently, an

appellate court could correct a void sentence at anytime.

. Thus, under the rule

established in Arna, a claim that a sentence is void was not subject to waiver. People v.

Thompson,

(2004). The void sentence rule allowed a defendant to raise

such an issue on appeal from postconviction proceedings under the Act, regardless of

whether the claim was included in the underlying petition.

. However, during the

2 Castleberry was filed on November 19, 2015, several weeks after defendant filed his initial appellate brief. -5- No. 1-14-2758

pendency of the current appeal, the supreme court rendered its opinion in Castleberry, and

explained that whether a court order is void depends solely on whether the court had

jurisdiction. Castleberry,

. Accordingly, a sentence which does not

conform to a statutory requirement, but which is entered by a court with jurisdiction, is

merely voidable. See

The court explained that it was “abolish[ing]” the void sentence rule

established in Arna. Id. ¶ 19. The question of waiver, therefore, depends solely on whether

the ruling in Castleberry applies to defendant.

¶ 14 A new rule of criminal procedure is generally applicable to all cases pending on direct

review, but not applicable to cases brought on collateral review. People v. Smith,

, ¶ 24. In Teague v. Lane,

(1989), the United States Supreme Court

established two exceptions to the bar on retroactive application of new rules in collateral

challenges: where the rule (1) places certain private individual conduct beyond the

proscriptive power of the criminal law or (2) requires the observance of procedures “implicit

in the concept of ordered liberty.” (Internal quotation marks omitted.) Teague,

(quoting Mackey v. United States,

(1971)). The Illinois Supreme

Court adopted the Teague analysis in People v. Flowers,

(1990). The

purpose of the Teague analysis is to promote the government’s interest in the finality of

criminal convictions, and preserve the “ ‘deterrent effect’ ” of the law. People v. Davis,

(quoting Flowers,

).

¶ 15 Under the Teague analysis, before considering the exceptions a court must determine if

the rule in question is in fact a new rule. See Smith,

. Both the United

States and Illinois Supreme Courts have acknowledged that the determination of whether a

ruling pronounces a new rule is difficult. Teague,

; People v. Morris, 236 Ill.

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2d 345, 359 (2010). The United States Supreme Court explained that “a case announces a

new rule when it breaks new ground or imposes a new obligation on the States or the Federal

Government.” Teague,

; see also Morris, 236 Ill. 2d at 359. In other words, a

new rule is one not required by established precedent at the time that a defendant’s

conviction became final. Teague,

; see also Morris, 236 Ill. 2d at 359.

¶ 16 Two recent opinions by the Illinois Appellate Court have considered whether Castleberry

set forth a new rule of criminal procedure: People v. Smith,

, and

People v. Stafford,

. In both cases, the defendant challenged his

sentence as void for the first time on appeal, and the appellate court considered whether

Castleberry applied retroactively. Smith,

; Stafford,

. In Smith, the defendant relied on the supreme court’s statements in

Castleberry that it was “ ‘departing from precedent’ ” and “ ‘abolished’ ” the void sentence

rule to argue that a new rule had been created. Smith,

(quoting Castleberry,

). The court concluded, however, that

“Castleberry did not announce a new rule, but merely abolished the rule stated in Arna,

thereby reinstating the rule in effect before Arna: a sentence that did not comply with

statutory guidelines was only void if the court lacked personal or subject matter jurisdiction.”

Id. ¶ 29. In Stafford, the court examined the holding in Smith and adopted its determination

that “Castleberry did not create a new rule but merely abolished one.” Stafford,

.

¶ 17 Although Smith and Stafford agreed that Castleberry did not create a new rule, each

reached separate conclusions regarding the result of that determination. In Smith, the court

held “[b]ecause Castleberry did not announce a new rule” it “cannot be applied

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retroactively.” Smith,

. Conversely, the court in Stafford

concluded, “[b]ecause Castleberry did not create a new rule, its holding does apply

retroactively.” (Emphasis in original.) Stafford,

(citing

Teague,

).

¶ 18 We agree with this court’s previous decisions in concluding that Castleberry’s holding

constituted the abolishment of a rule, rather than the establishment of a new rule. That said,

we are inclined to adopt the ultimate conclusion reached by the court in Stafford. See Teague,

; see also People v. Moore,

(1997) (holding that a prior

case’s ruling did not announce a new rule of law and, therefore would be applied

retroactively).

¶ 19 Because Castleberry did not announce a new rule, its holding is applicable to defendant’s

case. Pursuant to Castleberry, defendant’s claim attacks his sentence as merely voidable, not

void. See Castleberry,

. Accordingly, defendant is not free to challenge

his sentence for the first time on appeal and has waived the claim.

¶ 20 B. Postconviction Counsel’s Representation

¶ 21 Defendant next contends that his postconviction counsel failed to provide reasonable

assistance, asserting that she failed to examine and attach evidentiary support to his petition.

He also argues that she unreasonably failed to amend the petition to argue that his untimely

filing was not the result of culpable negligence. The State responds that counsel’s Rule

651(c) certificate created a presumption of reasonable assistance that defendant has failed to

rebut.

¶ 22 The Act provides a three-stage mechanism for a defendant who alleges that he suffered a

substantial deprivation of his constitutional rights. People v. Clark, 2011 IL App (2d)

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100188, ¶ 15. At the second stage of the proceeding, as in this case, the State may either file

an answer to the defendant’s petition or a motion to dismiss it. People v. Lofton,

. Before a postconviction petition moves to the third-stage evidentiary

hearing, the trial court must determine if the petition and any attached documents “make a

substantial showing of a constitutional violation.” People v. Edwards,

(2001).

¶ 23 The Act also provides for the appointment of counsel at an indigent petitioner’s request

once a petition reaches the second stage of proceedings (725 ILCS 5/122-4 (West 2012));

however, a defendant does not have a constitutional right to the effective assistance of

counsel at a postconviction proceeding (People v. Moore,

(2000)).

Instead, the Act provides a statutory right to “a reasonable level of assistance by appointed

counsel.” Moore,

.

¶ 24 In order “[t]o assure the reasonable assistance required by the Act,” Rule 651(c) imposes

certain duties on counsel in postconviction proceedings. People v. Perkins,

(2007). Counsel must: (1) communicate with the defendant to ascertain the claims of

constitutional violations; (2) examine the record of the trial court proceedings; and (3) make

any amendments to the pro se petition necessary for an adequate presentation of the

defendant’s claims.

Where counsel fails to meet the requirements of Rule 651(c), remand

is required “regardless of whether the claims raised in the petition had merit.” People v.

Suarez,

(2007).

¶ 25 Compliance with Rule 651(c) may be shown by the filing of a certificate by counsel. Ill.

S. Ct. R. 651(c) (eff. Feb. 6, 2013). The filing of a facially valid Rule 651(c) certificate

creates a rebuttable presumption that counsel acted reasonably and complied with the rule.

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People v. Jones,

.We review counsel’s compliance with Rule

651(c) de novo. Suarez,

.

¶ 26 Here, postconviction counsel filed an amended Rule 651(c) certificate which indicated

that she had communicated with defendant, examined the record of the proceedings and other

documentation in the clerk’s file regarding defendant’s case, examined the petition and its

attached documents, and concluded that amendment was not necessary. The assertions made

in her certificate are not contradicted by the record, and thus we find the certificate to be

facially valid. See Perkins,

(finding Rule 651(c) certificate facially valid

where it was not contradicted by the record). Accordingly, there is a rebuttable presumption

that postconviction counsel acted reasonably and, in order to overcome this presumption,

defendant must “demonstrat[e] his attorney’s failure to substantially comply with the duties

mandated by Rule 651(c).” People v. Profit,

.

¶ 27 Defendant first argues that postconviction counsel was unreasonable because she did not

examine or attach relevant mental health records to defendant’s petition. Defendant points to

no affirmative evidence in the record to establish that postconviction counsel did not seek out

and examine all available evidence relevant to his claim. Instead, he notes that counsel’s

certificate does not specifically state that she examined his mental health records and appears

to conclude that counsel did not do so. This is a reversal of the presumption and

corresponding burden in effect in this case. A court may reasonably presume postconviction

counsel made a concerted effort to obtain evidence in support of postconviction claims, but

was unsuccessful. See People v. Johnson,

(1993). Moreover, although

several parts of the record reflect that defendant was hospitalized at some point prior to his

plea and that mental health records exist, nothing in the record establishes the substance of

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those medical records. Without any indication of whether those documents would have

actually benefitted defendant’s claim that he was mentally unfit to plead guilty, we will not

assume that counsel was unreasonable in not attaching them to his petition. It is defendant’s

burden to overcome the presumption of postconviction counsel’s reasonableness; he has

failed to do so.

¶ 28 Defendant analogizes his case to People v. Turner,

(1999); People v.

Treadway,

(1993); and Johnson,

, where

reviewing courts found postconviction representation to be unreasonable. However, in each

of those cases postconviction counsel failed to file a Rule 651(c) certificate. See Turner,

; Treadway,

; Johnson,

. Thus the

question before those courts was whether the record affirmatively showed compliance with

Rule 651(c). Turner,

; Treadway,

; Johnson,

. Conversely, given the facially valid 651(c) certificate in the present case, we are

faced with the opposite question of whether the record positively rebuts the presumption of

reasonableness. See Profit,

. Accordingly, we find Turner,

Treadway, and Johnson inapposite.

¶ 29 Defendant also analogizes his case to People v. Waldrop,

(2004),

where the defendant’s postconviction counsel did file a Rule 651(c) certificate.

.

However, in Waldrop the appellate court held that counsel provided unreasonable assistance

and failed to comply with Rule 651(c) after reviewing the record and concluding that it

“flatly contradicted” the presumption of reasonableness and established that counsel

mistakenly believed that he had no duty to obtain an affidavit from a witness identified in the

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defendant’s pro se petition.

. There is no such contradiction here, rendering

Waldrop distinguishable.

¶ 30 Finally, defendant argues that counsel was unreasonable for failing to amend his petition

to argue that he was not culpably negligent for the petition’s untimeliness. He points to three

medical records attached to his petition, which indicate that defendant was diagnosed as

having “schizoaffective” disorder and prescribed multiple medications in January and

February of 2011. The second of the three documents also diagnoses defendant with

“PTSD.” The form includes several objective criteria, with instructions for the observer to

check if normal and note if abnormal. The form’s author has placed a check mark next to the

“Thought Processes” category, but next to the category “Insight/Judgment” has written

“limited.”

¶ 31 The purpose of Rule 651(c) is to ensure that postconviction counsel shapes a defendant’s

allegations into a proper legal form and presents them to the court. Profit,

. Counsel need not amend a pro se petition in all cases, but he or she must make

“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. Feb. 6, 2013); see also Turner,

. Such amendments include those “routine amendments” which overcome

procedural bars of waiver. Turner,

. Our supreme court has explained:

“Rule 651(c) requires counsel to amend an untimely pro se petition to allege any

available facts necessary to establish that the delay was not due to the petitioner’s

culpable negligence. In discharging this duty, counsel must inquire of the petitioner

whether there is any excuse for the delay in filing. As a practical matter, any potential

excuse for the late filing will often be discovered by speaking with the petitioner.

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Counsel must also allege any excuse for the delay in filing apparent from the

pleadings and the portions of the record counsel must review to present petitioner’s

claims.” Perkins,

.

However, postconviction counsel is not required to advance frivolous or spurious claims.

People v. Greer,

(2004).

¶ 32 A postconviction petition may not be brought more than three years after a defendant’s

conviction if that defendant does not pursue a direct appeal, unless the petitioner alleges facts

showing that the delay was not due to his or her culpable negligence. 725 ILCS 5/122-1(c)

(West 2012). This limit acts as an affirmative defense which may be raised by the State.

People v. Stoecker,

(2008). Here, defendant was convicted on

February 25, 2008, and thus the latest he could have brought his petition without alleging that

the delay was not due to culpable negligence was February 25, 2011. His petition filed in

July 2013 was untimely by well over two years and could thus be barred.

¶ 33 Reviewing the record, we find that defendant has failed to rebut the presumption that

counsel was reasonable in declining to amend the petition to include an argument that the

petition’s untimeliness was due to defendant’s mental health. Defendant’s argument is based

mainly on two diagnoses of schizoaffective disorder, a note that defendant’s insight or

judgment was “limited” despite his thought processes being marked as normal, and his use of

prescribed medication in the final two months of the three year period in which his petition

would have been timely. A diagnosis of a mental health issue by itself does not establish that

defendant was incapable of filing a postconviction petition. Similarly, the fact that defendant

was prescribed medications does not establish that those medications barred his ability to

timely file his petition. Significantly, defendant points to nothing in the record that indicates

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he explained that his untimeliness was due to his mental health or gave his counsel reason to

believe so. We cannot find postconviction counsel unreasonable for failing to speculate that

defendant’s unexplained failure to timely file was due to a mental health condition for which

he was receiving treatment without any actual indication that the condition was responsible

for the untimely filing of his petition. Defendant has therefore failed to affirmatively

establish that postconviction counsel’s decision not to amend the petition was unreasonable,

and thus, has failed to meet his burden.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 36 Affirmed.

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