People v. Bass
People v. Bass
Opinion
*565 ¶ 1 Defendant Aubrey Bass appeals the trial court's order granting the State's motion to dismiss his postconviction petition for relief filed under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2012) ). He contends that his postconviction counsel did not provide reasonable assistance. We disagree and affirm.
¶ 2 Following a jury trial, Bass was convicted of (i) possession of a controlled substance with intent to deliver and (ii) possession of a controlled substance and sentenced to 12 years' imprisonment. The evidence at trial established that on May 15, 2010, Maywood police officers Dennis Diaz and Weldon Cobos patrolled an apartment complex on the 1700 block of St. Charles Avenue in Maywood in an unmarked police car. The officers patrolled the apartment complex periodically at the request of the owner of the building, Don Duenes. 1 In the course of their patrol, they approached and spoke with Bass, who was standing with another man. The officers identified themselves as police. Bass stated that he did not reside at the complex and was "just enjoying the weather" and later left.
¶ 3 The officers continued patrolling and, about 10 minutes later, observed Bass in the courtyard of the apartment complex. As they approached, Bass turned to walk away and threw a plastic bag to the ground. The bag contained nine individually-wrapped "rocks" of suspected cocaine. The officers arrested Bass, who had $103 on his person. After giving Bass Miranda warnings, Bass told the officers the name of the person that usually sold him cocaine. He stated that he would purchase a quarter ounce for $200 and sell it for $350 in order to make $150 profit. The recovered substances weighed 1.320 grams and tested positive for cocaine. The jury found Bass guilty of possession of a controlled substance with intent to deliver and possession of a controlled substance. The trial *566 *415 court sentenced Bass as a Class X offender to 12 years' imprisonment.
¶ 4 On direct appeal, Bass argued (1) the trial court violated his sixth amendment right to counsel of his choice when it allowed his privately retained attorney to withdraw prior to trial without giving a reason; (2) his conviction for possession should be vacated under the one-act, one-crime rule; (3) his mittimus should be corrected to reflect only his conviction for possession with intent to deliver; and (4) he should have received a mandatory supervised release (MSR) term of two, rather than three, years. This court affirmed Bass's conviction for possession with intent to deliver and his MSR term but vacated his conviction for possession under the one-act, one-crime rule and ordered the mittimus corrected.
People v. Bass
,
¶ 5 On December 24, 2013, Bass filed a pro se postconviction petition under the Act. 2 In his petition, Bass argued, inter alia , that trial counsel was ineffective for failing to (1) file various pretrial motions, including "Motion To Quash Arrest, Motion To Suppress Evidence, Motion in Limine, Motion For DNA/Forensic Analysis...etc," and (2) interview and call as witnesses Duenes and John Shines, who would have testified that Bass had permission to be at the residence where he was arrested.
¶ 6 On February 28, 2014, the trial court advanced Bass's petition for second stage proceedings and appointed the public defender's office to represent him. During four status hearings between July 2014 and January 2015, appointed counsel informed the court that he needed more time to investigate Bass's claims because he was not able to locate one of the witnesses named in the petition. At a November 23, 2014 status, counsel further informed the court that he spoke with Bass several weeks earlier, went through the petition with him, and obtained from Bass "the name of somebody to contact regarding an issue of being an invitee in this apartment complex," whom counsel had not yet located.
¶ 7 On April 17, 2015, Bass's counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), stating that he consulted with Bass by phone and letter "to ascertain his claims of a deprivation of his constitutional rights"; he examined the trial and sentencing transcripts, and interviewed witnesses named in Bass's petition; and he examined Bass's pro se petition, found it adequately stated Bass's contentions of constitutional deprivations, and was therefore declining to amend the petition.
¶ 8 The State filed a motion to dismiss the petition, arguing, in relevant part, that Bass failed to attach affidavits of the potential witnesses, Duenes and Shines, and that his ineffective assistance claims failed under the test set forth in
Strickland v. Washington
,
"I did file my certificate. I did not amend or supplement Mr. Bass' petition. * * * And I am, in essence, standing on Mr. Bass' petition. I would like to note for the record, Judge, that I did contact the two witnesses named in Mr. Bass's petition-* * * Mr. Shines and Mr. Duenas [ sic ]. I also contacted a third individual that Mr. Bass told me about, all of whom he identifies as potential witnesses in a potential motion to quash and suppress the arrest. And based on my conversations with all these individuals, Judge, I was not able to get any affidavits or attach any affidavits to the petition. With that, Judge, I would rest on Mr. Bass's pro se petition."
¶ 9 The trial court granted the State's motion to dismiss. Bass timely appealed.
¶ 10 On appeal, Bass does not argue the merits of his petition and, as a result, has forfeited any argument that his claims of constitutional deprivation were meritorious.
People v. Cotto
,
¶ 11 The Act provides for a three-stage process by which a defendant may assert his conviction was the result of a substantial denial of his constitutional rights.
People v. Beaman
,
¶ 12 The parameters of the reasonable assistance postconviction petitioners are provided under the Act are codified in Rule 651(c). Under this rule, postconviction counsel has a duty to consult with defendant to ascertain his contentions of constitutional deprivation, examine the trial record, and, when necessary, amend the
pro se
petition to adequately present defendant's
*568
*417
contentions.
People v. Pendleton
,
¶ 13 We review
de novo
both the trial court's dismissal of Bass's postconviction petition without an evidentiary hearing (
Pendleton
,
¶ 14 Bass's counsel filed a Rule 651(c) certificate, and accordingly, we presume that he provided his client reasonable assistance. Bass therefore has the burden to rebut this presumption by demonstrating that postconviction counsel failed to substantially comply with the requirements of Rule 651(c).
Profit
,
¶ 15 The record reveals that counsel informed the court on multiple court dates that he was attempting to locate the potential witnesses named in Bass's pro se petition. Counsel further informed the trial court that he met with and went through the petition with Bass and received and examined the record. Ultimately, counsel stated that he interviewed three witnesses, including the two named in Bass's petition, and "was not able to get any affidavits or attach any affidavits to the petition." The record demonstrates that counsel fulfilled all the obligations Rule 651(c) imposes on postconviction counsel.
¶ 16 Despite ample evidence in the record that counsel performed all the duties imposed by Rule 651(c), Bass claims that because his attorney did not amend his petition by attaching affidavits or other evidence, which was necessary to cure defects on the face of the petition, he did not receive the reasonable assistance of counsel he was entitled to. But obviously, not every petition can be amended to state a substantial constitutional claim.
¶ 17 Citing
Greer
,
¶ 18 We note the inconsistency in the arguments presented here and in
Greer
. In
Greer
, the defendant argued that the trial
*569
*418
court deprived him of the reasonable assistance of counsel because it allowed his lawyer to withdraw and, on appeal, argued that counsel appointed to represent a postconviction petitioner could not be permitted to withdraw because the Act did not specifically permit it.
¶ 19 In
Greer
, the defendant's
pro se
postconviction petition advanced to the second stage by default because it was not brought to the trial court's attention within 90 days of filing ( 725 ILCS 5/122-2.1 (West 2000) ), so "there was never an initial determination as to [the] merits of the petition."
Greer
,
¶ 20 Of course, the unspoken
sequitur
to Bass's reformulation of
Greer
presumes that had his lawyer withdrawn, the court would have appointed new counsel to represent
*570
*419
him. But nothing in the Act, nor in any case interpreting the statutory provision for reasonable assistance of counsel, contemplates such a result.
People v. Thomas
,
¶ 21 Bass also contends his lawyer's failure to withdraw deprived him of the ability to defend his postconviction
pro se
. But again, this argument presumes, without any support in the record, that Bass's counsel failed to discuss with him the results of his investigation and Bass's options for proceeding with the petition. Bass could rationally have decided that he was better off having postconviction counsel appear for him than to have his lawyer file an
Anders
brief explaining to the court why the claims raised in the petition were without merit. See
People v. Kuehner
,
¶ 22 Counsel provided reasonable assistance to Bass by investigating the claims he raised in his postconviction petition. Bass does not articulate a basis-and we see none-for the contention that a failure to seek leave to withdraw when counsel's investigation does not yield the necessary support for a petitioner's claims of constitutional deprivation constitutes "unreasonable assistance" under the Act. Withdrawal of Bass's appointed counsel would leave him where he started: with a postconviction petition lacking in any evidentiary support. We therefore reject Bass's argument that he was denied reasonable assistance of postconviction counsel under Rule 651(c).
¶ 23 Affirmed.
Justices Pucinski and Hyman concurred in the judgment and opinion.
Duenes's last name is also spelled "Duenas" throughout the record.
The record reveals Bass also filed a pro se section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2012) ) on January 11, 2012, and a pro se "petition for a rehearing" on January 20, 2012. The petition for rehearing refers to a request for "relief from judgment," which was purportedly denied on December 16, 2011. Copies of these handwritten petitions are included in the record. However, neither party mentions them, and the record is silent regarding whether they were ruled on. The postconviction hearing transcript does contain brief references to other earlier pro se section 2-1401 petitions apparently filed by Bass and denied by different judges.
The gravamen of Bass's petition was that trial counsel was ineffective for failing to pursue a motion to suppress when witnesses identified by Bass could have testified that he had permission to be at the apartment complex where he was arrested. But, of course, permission to be on the premises is legally irrelevant to whether police had probable cause to arrest Bass when they saw him throwing a plastic bag, later determined to contain narcotics, to the ground. Given the extremely low bar for first stage determinations set by our supreme court (see
People v. Hodges
,
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aubrey BASS, Defendant-Appellant.
- Cited By
- 4 cases
- Status
- Unpublished