Illinois Official Reports

Appellate Court

People v. Smith, 2020 IL App (1st) 181220

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

KARL SMITH, Defendant-Appellant.

District & No. First District, Fourth Division 

No. 1-18-1220

Filed December 31, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CR-2655; the 

Hon. Thomas Joseph Hennelly, Judge, presiding. 

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Peter Sgro, of State Appellate 

Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Tyler J. Cox, Assistant State’s Attorneys, of counsel), for the 

People. 

Panel JUSTICE LAMPKIN delivered the judgment of the court, with 

opinion.

Presiding Justice Gordon and Justice Reyes concurred in the judgment 

and opinion.
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OPINION

¶ 1 Defendant Karl Smith appeals the second-stage dismissal of his postconviction petition. 

He argues that he is entitled to a remand for further second-stage proceedings because the 

attorney who represented him at the hearing on the State’s motion to dismiss his petition did 

not comply with the requirements of Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). 

The State counters that the attorney was not required to independently satisfy the duties 

prescribed by Rule 651(c) because her predecessor counsel had already filed a valid Rule 

651(c) certificate. For the following reasons, we agree with the State and affirm the circuit 

court’s judgment.1

¶ 2 I. BACKGROUND

¶ 3 In January 2008, defendant and two other men forced their way into an apartment that 

Gabriel Curiel shared with his brother, Jonathon Collazo. Gabriel’s three children, including 

six-year-old David, were also present at the time. The intruders stole money and cannabis from

a safe in the apartment. During the incident, David was shot in the head, and Gabriel was 

beaten, stabbed in the chest, and shot in the shoulder. Both were seriously injured but survived.

¶ 4 At a jury trial in 2011, Gabriel and Collazo identified defendant as one of the offenders. 

The State also called David, then nine years old, to testify. Before trial, defendant requested a 

hearing on David’s competency, but the trial court stated that it would address that issue at 

trial. After taking the stand, David answered several preliminary questions, but when asked 

about the day of the attack, he responded “I need a hug” and “I want my mom.” The jury was 

then excused, and defense counsel moved for a mistrial, arguing that David’s emotional 

reaction in front of the jury had prejudiced defendant. The trial court denied that request but 

stated that it would conduct a competency hearing if the State recalled David to the stand. The 

State did not recall David, and the trial court later instructed the jury to disregard his testimony 

and what had occurred while he was on the stand.

¶ 5 The jury found defendant guilty of two counts of attempted first degree murder, two counts 

of aggravated battery with a firearm, and one count each of home invasion, armed robbery, 

and aggravated battery of a child. The trial court sentenced defendant to consecutive prison 

terms of 30 years and 25 years on the attempted first degree murder convictions and 

consecutive terms of 22 years for the home invasion and armed robbery convictions, for an 

aggregate sentence of 99 years. The court imposed concurrent sentences of 30 years and 15 

years on the aggravated battery with a firearm convictions and no sentence on the aggravated 

battery of a child conviction, which merged with one of the aggravated battery with a firearm 

convictions.

¶ 6 On direct appeal, defendant argued that his aggravated battery convictions should be 

vacated under the one-act, one-crime rule because they were based on the same physical acts 

as his attempted first degree murder convictions, namely, the shootings of Gabriel and David. 

We vacated one of defendant’s aggravated battery with a firearm convictions and his 

aggravated battery of a child conviction because those convictions were based on defendant’s 

act of shooting David, which was the same act underlying his conviction for attempted first 

1

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 

appeal has been resolved without oral argument upon the entry of a separate written order.
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degree murder of David. People v. Smith, 2013 IL App (1st) 120311-U, ¶ 8. But we affirmed 

defendant’s other aggravated battery with a firearm conviction because that conviction was 

based on defendant’s act of shooting Gabriel, while his conviction for attempted first degree 

murder of Gabriel was based on his distinct act of stabbing Gabriel. Id. ¶ 9.

¶ 7 In March 2014, defendant filed a pro se postconviction petition, alleging that (1) he was 

not proven guilty beyond a reasonable doubt; (2) the State violated Brady v. Maryland, 373 

U.S. 83 (1963), by failing to disclose David’s pretrial statement identifying him; (3) the trial 

court erred in rejecting his request for a pretrial hearing on David’s competency to testify, 

which caused him prejudice when David had an emotional breakdown in front of the jury; 

(4) the trial court erred in imposing consecutive sentences for convictions arising from the 

same course of conduct and not informing him before trial that he could receive consecutive 

sentences; and (5) his appellate counsel was ineffective for failing to raise the preceding claims 

on direct appeal.

¶ 8 When the trial court failed to rule on the petition in 90 days, it automatically advanced to 

second-stage proceedings, and the court appointed the Office of the Public Defender to 

represent defendant. On January 23, 2015, Assistant Public Defender (APD) Denise Avant 

appeared on defendant’s behalf. On April 22, 2016, after several continuances, APD Avant 

filed a certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) attesting that 

she had consulted with defendant by phone to ascertain his contentions of deprivations of 

constitutional rights, had reviewed the transcript of defendant’s trial and the briefs from his 

direct appeal, had spoken with defendant’s trial counsel, had researched the issues in 

defendant’s pro se petition, and had determined that no supplemental petition was necessary 

to adequately present defendant’s contentions.

¶ 9 On April 6, 2017, the State filed a motion to dismiss defendant’s petition, arguing that it 

was untimely and that defendant’s claims were meritless. On August 4, 2017, APD Avant filed 

a response to the State’s motion, conceding that defendant filed his petition 38 days late but 

arguing that the delay should be excused because defendant was not culpably negligent. In 

support, APD Avant submitted an affidavit from defendant explaining that he had only a tenth 

grade education and was unfamiliar with the legal rules for calculating the deadline for filing 

a postconviction petition.

¶ 10 Sometime after filing the response to the State’s motion to dismiss, APD Avant left the 

public defender’s office, and the case was reassigned to APD Kristine Underwood. On March 

26, 2018, APD Underwood represented defendant at the hearing on the State’s motion to 

dismiss. APD Underwood argued that the untimeliness of defendant’s petition should be 

excused because his mistake in calculating the deadline for filing the petition did not constitute 

culpable negligence. On the merits, APD Underwood focused on defendant’s claim that the 

trial court erred in denying his request for a pretrial hearing on David’s competency to testify. 

APD Underwood argued that, in light of David’s age and the head injuries he suffered in the 

shooting, a pretrial hearing on his competency was warranted. And though David ultimately 

did not testify at trial, APD Underwood argued that defendant was prejudiced by the lack of a 

pretrial competency hearing when David became emotional in front of the jury while 

attempting to testify.

¶ 11 In an oral ruling, the trial court granted the State’s motion to dismiss. The court found that 

defendant’s petition was untimely, but it did not address the argument that the lateness should 

be excused due to defendant’s lack of culpable negligence. The trial court also found that 
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defendant’s claims were meritless. As for the claim that the court erred in denying defendant’s 

request for a pretrial hearing on David’s competency, the court noted that David ultimately did 

not testify and that the jury was instructed to disregard what occurred when he was briefly 

called to the stand. After the court announced its ruling, defendant filed a timely notice of 

appeal.

¶ 12 II. ANALYSIS

¶ 13 Defendant’s sole argument on appeal is that he is entitled to a remand for further secondstage proceedings because APD Underwood did not file a Rule 651(c) certificate and the record 

does not otherwise establish that she independently complied with the duties specified by the 

rule. Defendant does not dispute that APD Avant complied with the requirements of Rule 

651(c). But he argues that, regardless of APD Avant’s compliance, APD Underwood, as the 

attorney who represented him at the hearing on the State’s motion to dismiss, was 

independently required to comply with Rule 651(c). We review an attorney’s compliance with 

Rule 651(c) de novo. People v. Profit, 2012 IL App (1st) 101307, ¶ 17. We likewise review 

the scope of an attorney’s duties under Rule 651(c) de novo. See People v. Suarez, 224 Ill. 2d 

37, 41-42 (2007) (questions concerning the proper interpretation of a supreme court rule are 

reviewed de novo).

¶ 14 Under the Post-Conviction Hearing Act, when a postconviction petition is not dismissed 

as frivolous or patently without merit within 90 days after it is filed, the petition advances to 

second-stage proceedings, including the appointment of counsel. 725 ILCS 5/122-2.1(b), 122-

4 (West 2018); People v. Bailey, 2017 IL 121450, ¶ 18. There is “no constitutional right to 

counsel, effective or otherwise,” in postconviction proceedings. People v. Custer, 2019 IL 

123339, ¶ 30; see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Rather, the right to 

counsel recognized by the Post-Conviction Hearing Act exists as a matter of legislative grace. 

Custer, 2019 IL 123339, ¶ 30. A postconviction petitioner is thus “entitled to only the level of 

assistance guaranteed by the Act.” (Internal quotation marks omitted.) Id. That “required 

quantum of assistance has been judicially deemed to be a ‘reasonable level,’ a standard that is 

significantly lower than the one mandated at trial by our state and federal constitutions.” Id.

(citing People v. Pendleton, 223 Ill. 2d 458, 472 (2006)).

¶ 15 To ensure that postconviction petitioners receive the reasonable level of assistance 

guaranteed under the Post-Conviction Hearing Act, Rule 651(c) requires postconviction 

counsel to perform three specific tasks. Suarez, 224 Ill. 2d at 42. In particular, Rule 651(c) 

requires postconviction counsel to 

“consult[ ] with [the] petitioner by phone, mail, electronic means or in person to 

ascertain his or her contentions of deprivation of constitutional rights, *** 

examine[ ] the record of the proceedings at the trial, and [make] any amendments 

to the petitions filed pro se that are necessary for an adequate presentation of [the] 

petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017).

See People v. Kirk, 2012 IL App (1st) 101606, ¶ 18. These duties serve “to ensure that counsel 

shapes the petitioner’s claims into proper legal form and presents those claims to the court.” 

People v. Perkins, 229 Ill. 2d 34, 44 (2007). When a postconviction attorney files a certificate 

attesting that she has performed the duties mandated by Rule 651(c), the certificate gives rise 

to a rebuttable presumption that counsel provided the reasonable level of assistance guaranteed 

by the Post-Conviction Hearing Act. Profit, 2012 IL App (1st) 101307, ¶ 19. 
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¶ 16 As noted, defendant does not dispute that APD Avant filed a Rule 651(c) certificate, and 

he makes no attempt to overcome the presumption that APD Avant provided him the 

reasonable assistance guaranteed by the Post-Conviction Hearing Act. Instead, defendant 

contends that APD Underwood, who replaced APD Avant as his counsel prior to the hearing 

on the State’s motion to dismiss, was herself required to comply with Rule 651(c)’s 

requirements. But we find no support for this contention in either the Post-Conviction Hearing 

Act or Rule 651(c).

¶ 17 This court’s decision in People v. Marshall, 375 Ill. App. 3d 670 (2007), is instructive. 

There, a defendant who was denied postconviction relief after a third-stage evidentiary hearing 

argued that the attorneys who represented her at the evidentiary hearing were required to 

comply with the requirements of Rule 651(c) even though the attorney who previously 

represented her at the second-stage proceedings on her petition had already certified 

compliance with the rule’s requirements. Id. at 672, 679. In rejecting this contention, we held 

that “Rule 651(c)’s requirements must be met only once and not, as defendant suggests, by 

attorneys representing a defendant at each stage of postconviction proceedings.” Id. at 682.

¶ 18 We explained that counsel at the various stages of the postconviction process have distinct 

roles. In particular, counsel at second-stage proceedings must satisfy Rule 651(c)’s 

requirements of consulting with the petitioner, reviewing the record, and making any necessary 

amendments to the petitioner’s pro se petition “so that the State can fully review the 

defendant’s claims and determine if it will move to dismiss them.” Id. at 683. “An attorney at 

the evidentiary hearing stage,” by contrast, “must argue the merits of the postconviction 

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

stage.” Id. In light of these distinctive roles, we concluded that “Rule 651(c) does not require 

third-stage counsel to duplicate the efforts of second-stage counsel.” Id.

¶ 19 Although Marshall did not address the precise question presented here, we think its 

reasoning applies with full force. Defendant does not dispute that APD Avant consulted with 

him to ascertain his contentions of constitutional error, reviewed the record of his trial 

proceedings, and reasonably determined that no amendments to his pro se petition were 

necessary to adequately present his claims. By certifying her compliance with these duties, 

APD Avant created a rebuttable presumption, which defendant does not attempt to overcome, 

that APD Avant provided the level of reasonable assistance mandated by the Post-Conviction 

Hearing Act. See Profit, 2012 IL App (1st) 101307, ¶ 19. In addition to complying with the 

duties specified in Rule 651(c), APD Avant filed a written response to the State’s motion to 

dismiss, urging the trial court to excuse the tardy filing of defendant’s pro se petition due to a 

lack of culpable negligence on defendant’s part. Defendant likewise makes no argument that 

APD Avant rendered unreasonable assistance in responding to the State’s motion.

¶ 20 When APD Underwood replaced APD Avant as defendant’s counsel, all that was left to do 

was orally argue defendant’s position at the hearing on the State’s motion to dismiss. Much 

like the attorneys at the third-stage evidentiary hearing in Marshall, APD Underwood’s role

was different than that of the attorney she replaced. Her task was to urge that the untimely 

filing of defendant’s pro se petition be excused (as APD Avant had previously done in writing) 

and “argue the merits of [defendant’s] claims as presented in the petition following review by 

[APD Avant].” See Marshall, 375 Ill. App. 3d at 683. To perform that limited role, it was not 

necessary for APD Underwood to independently consult with defendant to ascertain his 

contentions of constitutional error, review the trial record, or determine whether any 
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amendments to defendant’s pro se petition were necessary to adequately present his claims. 

APD Underwood was entitled to rely on APD Avant’s certificate of compliance with respect 

to those duties and was not required “to duplicate [APD Avant’s] efforts.” See id.

¶ 21 Resisting this conclusion, defendant cites two decisions of the Second District applying 

Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). That rule provides that, when a 

defendant moves to withdraw his guilty plea or reconsider the sentence imposed following his 

plea, the defendant’s attorney must certify that he “has consulted with the defendant *** to 

ascertain defendant’s contentions of error ***, has examined the [relevant records], and has 

made any amendments to the motion necessary for adequate presentation of any defects in 

those proceedings.” Id. In People v. Ritchie, 258 Ill. App. 3d 164, 166-67 (1994), and People 

v. Herrera, 2012 IL App (2d) 110009, ¶ 11, the Second District held that the attorney who 

represents a defendant at the hearing on his motion must independently certify compliance 

with Rule 604(d), even if an earlier attorney who has since withdrawn previously certified his 

own compliance. Ritchie explained that “one purpose of [Rule 604(d)] is to assure that all of 

[a] defendant’s viable contentions of error are presented to the court,” and that that purpose 

would be “frustrated if an affidavit by an attorney who no longer represents [the] defendant is 

deemed adequate compliance with the rule.” Ritchie, 258 Ill. App. 3d at 166-67. Herrera

further reasoned that, due to “the strict forfeiture provision of Rule 604(d) ***, fundamental 

fairness requires that the defendant have the assistance of counsel in preparing and presenting

his motion, and Rule 604(d) ensures that those duties are performed and that the defendant’s 

due process rights are protected.” (Emphasis in original.) Herrera, 2012 IL App (2d) 110009, 

¶ 11.

¶ 22 Assuming arguendo that Ritchie and Herrera correctly interpreted the requirements of 

Rule 604(d), we reject defendant’s call to extend that interpretation to Rule 651(c). Although 

superficially similar, Rule 604(d) and Rule 651(c) serve fundamentally distinct purposes. Rule 

604(d) protects a defendant’s constitutional right to effective assistance of counsel at a critical 

stage of the proceedings on his guilty plea. People v. Young, 355 Ill. App. 3d 317, 324 (2005). 

In contrast, Rule 651(c) protects only the statutory right to reasonable assistance of counsel 

that applies in postconviction proceedings. See Custer, 2019 IL 123339, ¶ 30. Thus, even if 

the attorney who represents a defendant at the hearing on his motion to withdraw his guilty 

plea or reconsider the sentence imposed following his guilty plea must certify compliance with 

Rule 604(d) despite a predecessor attorney’s earlier certificate, there is no logical reason why 

the same rule should apply to a postconviction attorney’s compliance with the requirements of 

Rule 651(c) since the standards of attorney performance that those rules protect differ so 

drastically. See id. (standard of reasonable assistance guaranteed in postconviction proceedings 

“is significantly lower than the [standard] mandated at trial by our state and federal 

constitutions”).

¶ 23 The duties imposed on postconviction counsel under Rule 651(c) exist to ensure that 

postconviction petitioners receive the reasonable assistance of counsel guaranteed by the PostConviction Hearing Act. Suarez, 224 Ill. 2d at 42. Here, APD Avant certified that she complied 

with the duties specified in Rule 651(c), including consulting with defendant to ascertain his 

contentions of constitutional error, reviewing the trial record, and determining that no 

amendments to his pro se petition were necessary to adequately present his claims. APD 

Avant’s certificate created a rebuttable presumption that defendant received reasonable 

assistance of postconviction counsel. See Profit, 2012 IL App (1st) 101307, ¶ 19. APD 
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Underwood, who replaced APD Avant prior to the hearing on the State’s motion to dismiss, 

was not required to duplicate APD Avant’s efforts and independently perform the duties 

specified in Rule 651(c) in order to provide reasonable assistance at the motion hearing.

¶ 24 Because defendant has not rebutted the presumption of reasonable assistance created by 

APD Avant’s Rule 651(c) certificate nor identified any specific deficiency in APD 

Underwood’s performance other than her failure to independently comply with Rule 651(c), 

there is no basis to remand this matter for further second-stage proceedings.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 27 Affirmed.