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Appellate Court Date: 2017.05.15
13:29:51 -05'00'
People v. Malone, 2017 IL App (3d) 140165
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIAM A. MALONE, Defendant-Appellant.
District & No. Third District
Docket No. 3-14-0165
Rule 23 order filed December 15, 2016
Rule 23 order
withdrawn January 23, 2017
Opinion filed January 23, 2017
Decision Under Appeal from the Circuit Court of Peoria County, No. 09-CF-684; the
Review Hon. David A. Brown, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and John M. McCarthy, of State Appellate
Appeal Defender’s Office, of Springfield, for appellant.
Jerry Brady, State’s Attorney, of Peoria (Justin A. Nicolosi, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion.
Justices O’Brien and Lytton concurred in the judgment and opinion.
OPINION
¶1 The defendant, William A. Malone, appeals from the dismissal of his postconviction
petition, arguing that postconviction counsel provided unreasonable assistance by failing to
amend the postconviction petition or withdraw as counsel.
¶2 FACTS
¶3 The defendant was convicted of aggravated criminal sexual assault (720 ILCS
5/12-14(a)(1) (West 2008)), home invasion (720 ILCS 5/12-11(a)(2) (West 2008)), aggravated
robbery (720 ILCS 5/18-5(a) (West 2008)), and failure to register as a sex offender (730 ILCS
150/10 (West 2008)). He was sentenced, respectively, to natural life imprisonment, 30 years’
imprisonment, 30 years’ imprisonment, and 10 years’ imprisonment. The home invasion,
aggravated robbery, and failure to register as a sex offender sentences would all run concurrent
and would be consecutive to the sentence for aggravated criminal sexual assault. On appeal,
this court affirmed his convictions, reduced his aggravated robbery sentence to 15 years, and
vacated a DNA testing fee. People v. Malone, 2012 IL App (3d) 100425-U, ¶ 20.
¶4 The defendant subsequently filed a pro se postconviction petition, claiming that (1) his
rights were violated when the State filed multiple counts charging the same crime under
different theories, and home invasion was a lesser included offense of aggravated robbery; (2)
one of the jurors worked at the same hospital as the victim and another knew the judge; (3) the
prosecutor made improper comments to discredit the defendant and improperly vouched for
the State’s witnesses; and (4) he was not eligible for a natural life sentence because his prior
sex convictions were for criminal sexual abuse.
¶5 The trial court appointed counsel to represent the defendant, and the State filed a motion to
dismiss, arguing that none of the issues the defendant raised in his pro se petition had merit.
Postconviction counsel did not amend the defendant’s postconviction petition nor add any
affidavits or any other supporting documentation. At the hearing on the State’s motion to
dismiss, the State chose to rest on the arguments contained in its motion to dismiss.
Postconviction counsel stated that he disagreed with the argument set forth in the State’s
motion to dismiss, but would also stand on the arguments set forth in the pro se postconviction
petition. The defendant made a statement at the hearing on the motion to dismiss, which
expounded on his argument about the prosecutor’s improper comments and potential bias of
the jurors. The trial court gave the defendant the opportunity to submit further documentation
of his claims should he so choose. It does not appear from the record that the defendant
submitted any further documentation. The trial court took the matter under advisement and
ultimately granted the State’s motion to dismiss. Postconviction counsel filed a Rule 651(c)
certificate. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
¶6 ANALYSIS
¶7 On appeal, the defendant argues that postconviction counsel provided unreasonable
assistance as counsel’s representation amounted to representation “in name only.”
Specifically, the defendant argues that postconviction counsel should have either amended the
postconviction petition or moved to withdraw as counsel if he found the petition to be
meritless.
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¶8 A defendant’s right to postconviction counsel is wholly statutory, and, under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), a petitioner is
only entitled to reasonable assistance of counsel. People v. Mason, 2016 IL App (4th) 140517,
¶ 19. Reasonable assistance of postconviction counsel is premised on counsel’s compliance
with Rule 651(c). Id. Rule 651(c) provides that postconviction counsel must file a certificate
stating:
“that the attorney has consulted with petitioner by phone, mail, electronic means or in
person to ascertain his or her contentions of deprivation of constitutional rights, has
examined the record of the proceedings at the trial, and has made any amendments to
the petitions filed pro se that are necessary for an adequate presentation of petitioner’s
contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
¶9 Here, postconviction counsel did not amend the defendant’s pro se postconviction petition.
Neither the State nor the defendant’s postconviction counsel presented oral arguments at the
hearing on the State’s motion to dismiss, both solely relying on the arguments in their written
documents. Postconviction counsel filed a Rule 651(c) certificate, which stated that he
consulted with the petitioner, examined the record, and made any necessary amendments to the
petition.
¶ 10 The defendant contends that postconviction counsel should have amended the pro se
petition. Postconviction counsel, however, is not required to amend a defendant’s pro se
postconviction petition. People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008). Ethical
obligations prevent counsel from doing so if the claims are frivolous. Id. If the claims are
frivolous, postconviction counsel has the option of standing on the allegations in the pro se
petition or to withdraw as counsel. Id. Further, the defendant does not make any
recommendation as to how counsel could have improved the petition, other than stating that
counsel did not attach any affidavits supporting the claims. “[T]here is no showing of the
existence of any facts or evidence on which such affidavits could have been founded. Absent a
showing of available material for supporting affidavits, a failure to present affidavits obviously
cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970).
Counsel is not required to go on a “fishing expedition” to find facts and evidence outside the
record that might support the defendant’s claims. See People v. Vasquez, 356 Ill. App. 3d 420,
425 (2005).
¶ 11 Postconviction counsel filed a compliant Rule 651(c) certificate, giving rise to the
presumption that counsel complied with the rule and provided reasonable assistance. See
People v. Profit, 2012 IL App (1st) 101307, ¶¶ 19, 23. The defendant has failed to rebut that
presumption. Therefore, we accept that postconviction counsel provided reasonable assistance
in that he reviewed the record and could not or did not need to make any amendments to the
petition to adequately present the defendant’s claims.
¶ 12 In coming to this conclusion, we reject the defendant’s contention that if postconviction
counsel could not amend the pro se petition, he should have withdrawn as counsel. Though
People v. Greer, 212 Ill. 2d 192, 211 (2004), allows postconviction counsel to withdraw when
the allegations of the petition are without merit and frivolous, it does not compel withdrawal
under such circumstances. Id. (“the Act presents no impediment to withdrawal of counsel”).
Whether postconviction counsel stood on the pro se petition or withdrew as counsel is a
distinction without a difference. Further, we note that the trial court gave the defendant the
opportunity to present a statement at the hearing, which the defendant did. The court also
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allowed the defendant to provide any further documentation prior to the court making its
decision, which the defendant failed to do. Therefore, the defendant was given the opportunity
to explain his constitutional deprivations to the trial court, as he claims he could have done had
postconviction counsel withdrawn.
¶ 13 We also reject the defendant’s reliance on People v. Shortridge, 2012 IL App (4th) 100663.
Postconviction counsel in Shortridge did not just fail to amend the pro se postconviction
petition or withdraw as counsel, but instead actually “confess[ed] the motion to dismiss” filed
by the State. (Internal quotation marks omitted.) Id. ¶ 6. We find Shortridge distinguishable on
this fact alone.
¶ 14 CONCLUSION
¶ 15 The judgment of the circuit court of Peoria County is affirmed.
¶ 16 Affirmed.
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