2023 IL App (4th) 221016-U 

NO. 4-22-1016 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

JOSIAHA R. WILLS, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Ogle County 

No. 14CF26 

Honorable 

John C. Redington, 

Judge Presiding.

 

JUSTICE DOHERTY delivered the judgment of the court.

Presiding Justice DeArmond and Justice Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court reversed and remanded because postconviction counsel failed 

to file a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 

1, 2017) and the record did not establish that the error was harmless.

¶ 2 Defendant Josiaha R. Wills appeals from the dismissal of his petition for relief 

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2018)) at the 

second stage of proceedings.

¶ 3 On appeal, defendant argues this court should remand for further second-stage 

proceedings because his appointed counsel failed to file a certificate of compliance with Illinois 

Supreme Court Rule 651(c) (eff. July 1, 2017) and the record does not affirmatively demonstrate 

compliance with the requirements of Rule 651(c). The State concedes the error. We accept the 

State’s concession and remand for further proceedings. 

¶ 4 I. BACKGROUND

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

August 22, 2023

Carla Bender

4th District Appellate

Court, IL
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¶ 5 A. Prior Proceedings

¶ 6 The factual circumstances and procedural history of defendant’s case have 

previously been examined in detail. See People v. Wills, 2017 IL App (2d) 150240. Accordingly, 

we summarize the events leading to this appeal and provide only those facts relevant to the issues 

before the court.

¶ 7 After a jury trial, defendant was found guilty of four counts of predatory criminal 

sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). The trial court set aside one 

count and sentenced defendant to 12 years’ imprisonment on each count of the remaining three 

counts, to be served consecutively. Defendant’s convictions and sentence were affirmed on direct 

appeal. Wills, 2017 IL App (2d) 150240, ¶ 61.

¶ 8 B. Postconviction Petition

¶ 9 In September 2019, defendant filed a pro se postconviction petition alleging 

numerous constitutional claims and various claims of ineffective assistance of trial and appellate 

counsel. Defendant attached to his petition at least 23 exhibits. The trial court advanced 

defendant’s petition to the second stage and appointed counsel to represent defendant.

¶ 10 During status hearings, defendant’s counsel expressed that he was reviewing 

defendant’s petition and attempting to meet with defendant. However, because of restrictions in 

place to prevent the spread of COVID-19, he was having difficulty arranging for a translator and 

meeting with defendant in the Illinois Department of Corrections facility. Defendant is deaf and 

communicates in American Sign Language. Counsel worked with an organization that assists with 

legal issues for the deaf and was able to meet with defendant and review his claims of error.

¶ 11 In May 2022, counsel filed an amended postconviction petition, reiterating the 

claims from defendant’s pro se petition and adding several additional claims. Counsel attached the 
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same exhibits from the pro se petition to the amended petition, but he did not file a certificate 

pursuant to Rule 651(c).

¶ 12 In July 2022, the State filed a motion to dismiss defendant’s postconviction petition. 

After a hearing, the trial court granted the State’s motion to dismiss.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues we must remand for further second-stage proceedings

because postconviction counsel failed to file a certificate pursuant to Rule 651(c) and the record 

does not demonstrate compliance with Rule 651(c). The State concedes that the matter must be 

remanded for compliance with Rule 651(c). We accept the State’s concession.

¶ 16 “The [Act] allows a criminal defendant to assert in a petition that ‘in the 

proceedings which resulted in his or her conviction there was a substantial denial of his or her 

rights under the Constitution of the United States or of the State of Illinois or both.’ ” People v. 

Eubanks, 2021 IL 126271, ¶ 29 (quoting 725 ILCS 5/122-1(a)(1) (West 2018)). The Act 

contemplates a three-stage process. People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006).

¶ 17 At the second stage of proceedings, counsel may be appointed for an indigent 

defendant. Id. at 472. There is no constitutional right to postconviction counsel. People v. 

De La Paz, 204 Ill. 2d 426, 440 (2003). Rather, the right to postconviction counsel is provided by 

the Act itself, and a defendant is entitled to reasonable assistance. Id.; see 725 ILCS 5/122-4 (West 

2018). To ensure the reasonable assistance required by the Act, Rule 651(c) imposes specific duties 

on postconviction counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Rule 651(c) states, in 

pertinent part, the following: 
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“The record filed in that court shall contain a showing, which may be made 

by the certificate of petitioner’s attorney, 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. July 1, 2017).

¶ 18 “[A]ppointed counsel is required to file a certificate showing compliance with 

Illinois Supreme Court Rule 651(c) ***.” People v. Cotto, 2016 IL 119006, ¶ 27. “ ‘The filing of 

a facially valid Rule 651(c) certificate creates a rebuttable presumption that counsel acted 

reasonably and complied with the rule.’ ” People v. Beasley, 2017 IL App (4th) 150291, ¶ 39 

(quoting People v. Wallace, 2016 IL App (1st) 142758, ¶ 25). Where counsel fails to file a Rule 

651(c) certificate, the court may deem the error harmless if the record provides a clear and 

affirmative showing that counsel satisfied the requirements of Rule 651(c). People v. Lander, 215 

Ill. 2d 577, 584 (2005).

¶ 19 In this case, counsel did not file a Rule 651(c) certificate. Therefore, we do not 

presume that counsel complied with the rule. The record must show clear and affirmative evidence 

counsel met with defendant, reviewed his contentions of error, examined the record of 

proceedings, and made any necessary amendments to the pro se petition. The record positively 

demonstrates counsel met with defendant and reviewed his contentions of error, but it fails to 

affirmatively show counsel “examined the record of the proceedings at the trial” as mandated by 

Rule 651(c). Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Further, we cannot presume counsel “made 

any amendments to the petitions filed pro se that are necessary for an adequate presentation of 
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petitioner’s contentions.” Id. “[W]ithout a showing that postconviction counsel fulfilled the rule’s 

requirements, we cannot conclude that the defendant was provided with adequate representation.” 

People v. Myers, 386 Ill. App. 3d 860, 866 (2008). Counsel’s failure to comply with the 

requirements of Rule 651(c) mandates that we remand this matter and “direct the trial court to 

provide defendant new postconviction counsel who shall have leave to amend and to add 

supporting documentation, as counsel deems necessary, in support of defendant’s claims.” People 

v. Burns, 2019 IL App (4th) 170018, ¶ 3. 

¶ 20 As we are remanding for further second-stage proceedings and directing the trial 

court to appoint new postconviction counsel, we need not address defendant’s further argument as 

to counsel’s performance.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we reverse the trial court’s judgment dismissing defendant’s 

postconviction petition, remand the case for further second-stage proceedings, and direct the court 

to appoint new postconviction counsel, who shall have leave to amend defendant’s postconviction 

petition as counsel deems necessary. 

¶ 23 Reversed; cause remanded with directions.