1 

Order filed March 5, 2021. 2021 IL App (5th) 180379-U 

Modified upon denial of 

Rehearing April 22, 2021. NO. 5-18-0379 

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 12-CF-1181 

 ) 

JOHN C. MARTIN, ) Honorable 

 ) Stephen McGlynn, 

Defendant-Appellant. ) Judge, presiding. 

______________________________________________________________________________ 

JUSTICE BARBERIS delivered the judgment of the court. 

 Presiding Justice Boie and Justice Moore concurred in the judgment. 

 

 ORDER

¶ 1 Held: The circuit court’s dismissal of defendant’s pro se postconviction petition at the 

second stage of the postconviction proceedings is affirmed where defendant failed 

to rebut the presumption that he received reasonable assistance from his 

 postconviction counsel. 

¶ 2 Defendant, John C. Martin, appeals from an order of the circuit court of St. Clair County 

dismissing his pro se postconviction petition at the second stage of the postconviction 

proceedings. On appeal, defendant argues that postconviction counsel failed to provide 

reasonable assistance by failing to either amend defendant’s pro se petition to adequately present 

his claims of error or withdraw from the case and state the reasons why defendant’s claims 

lacked merit. Defendant requests that we reverse the dismissal of the petition and remand for 

further second-stage proceedings. For the reasons that follow, we affirm.
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¶ 3 I. Background 

¶ 4 On September 7, 2012, defendant was charged in an indictment with predatory criminal 

sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)), a Class X felony punishable by 

6 to 60 years’ imprisonment (id. § 11-1.40(b)(1)). The indictment alleged that defendant “who 

was 17 years of age or older, knowingly committed an act of sexual penetration with a female, a 

minor with a date of birth of October 13, 2006, who was under 13 years of age when the act was 

committed, in that said defendant placed his finger in the vagina of the [victim].” The indictment 

also alleged that the act was committed in St. Clair County between June 21, 2012, and July 14, 

2012.

¶ 5 On October 17, 2012, the circuit court entered an order stating that defense counsel had 

raised a bona fide doubt as to defendant’s fitness to stand trial. In light of this, the court 

appointed Dr. Daniel Cuneo, a forensic psychologist, to evaluate defendant and provide a report 

to the court. The court also requested Dr. Cuneo to evaluate defendant’s ability to waive his 

Miranda rights and provide that report only to defense counsel. 

¶ 6 On November 5, 2012, Dr. Cuneo submitted a fitness evaluation report, dated October 

31, 2012, in which he concluded that defendant was fit to stand trial. The circuit court 

subsequently held a fitness hearing on January 11, 2013. 

¶ 7 A. Dr. Cuneo’s Testimony 

¶ 8 At the hearing, Dr. Cuneo testified that he initially evaluated defendant at the St. Clair 

County jail on October 31, 2012, and prepared the evaluation report later that same day. 

However, due to his lingering concerns that defendant may have become unfit during the 

“lengthy delay” in scheduling the fitness hearing, Dr. Cuneo reevaluated defendant on January 4, 

2013, and concluded that defendant remained fit to stand trial. 
3 

¶ 9 Dr. Cuneo next testified to the specifics of the evaluation. Dr. Cuneo had administered “a 

battery of psychological tests,” to assess defendant’s mental status and his intellectual, reading, 

and math abilities. Dr. Cuneo also reviewed defendant’s clinical history and spoke with the 

nursing staff at the jail. 

¶ 10 Dr. Cuneo observed that defendant was oriented in his person, place, and time. In other 

words, defendant “knew who he was, where he was,” and could recite the month, day, and year. 

Dr. Cuneo further observed that defendant displayed “really concrete thinking,” with no 

delusional material elicited. Defendant denied ever experiencing hallucinations.

¶ 11 Dr. Cuneo next testified to the following regarding defendant’s intellectual abilities. Dr. 

Cuneo determined that defendant had an intelligence quotient (IQ) of 65, which put defendant’s 

functioning ability in the bottom one percent of the nation and placed him “roughly at a level of a 

10 or 11 year old.” Defendant’s low IQ was also consistent with his history of placement in 

special education classes. Dr. Cuneo reported that defendant had dropped out of school in the 

eighth grade and was “basically illiterate.” In addition, defendant’s math skills were extremely 

limited, defendant was unable to answer simple addition or subtraction problems without 

counting on his fingers, and his short-term memory was impaired. Dr. Cuneo further reported 

that defendant was prescribed anti-anxiety medication by his family physician, and defendant 

had a speech impediment that became more pronounced with increased anxiety. 

¶ 12 Dr. Cuneo further testified that, despite defendant’s intellectual limitations, defendant 

was able to adequately explain the nature of the charges, the allegations against him, and the 

roles of court personnel (including the judge, prosecutor, and defense counsel). Dr. Cuneo also 

opined that defendant could assist in his own defense. Defendant understood that his guilt would 
4 

be determined at a trial and, if found guilty, he would be sentenced to prison. Based on his 

evaluation and findings, Dr. Cuneo opined that defendant was fit to stand trial.

¶ 13 On cross-examination, Dr. Cuneo acknowledged that defendant, due to his inability read, 

had other inmates read his mail to him. As such, Dr. Cuneo agreed that defendant would not be 

able to read notes passed to him by defense counsel during trial, unless the notes were written at 

a 10- or 11-year-old level. Dr. Cuneo also testified that defendant’s short-term memory 

impairment would affect, but not substantially impair, defendant’s ability to communicate with 

counsel and assist counsel during the trial. 

¶ 14 B. Defendant’s Testimony

¶ 15 Following the circuit court’s denial of defense counsel’s motion for directed verdict, 

defendant testified on his own behalf. At the time of the fitness hearing, defendant was able to 

recite his age, 61 years old, and his birth date of April 27, 1951. Regarding his understanding of 

the proceedings, defendant explained that he was in the courtroom to determine if he understood 

“a jury trial and that.” He also understood the nature of the charges.

¶ 16 Defendant was unable to recall how far he went in school and was unable to perform 

basic arithmetic. In addition, although defendant demonstrated that he was able to spell “cat,” he 

was unable to spell “salad.” Defendant acknowledged that he had difficulty reading and further 

displayed an inability to accurately repeat a series of four simple items, such as “dog, cat, dog, 

duck,” responding “dog, cat, duck.” Defendant further acknowledged that he was taking 

medication for anxiety and for a bladder condition.

¶ 17 Defendant next described his understanding of the roles of court personnel. According to 

defendant, his public defender would try “to see if I’m guilty,” the prosecutor would “try to put 

me away,” the judge would decide “if I’m guilty,” and the role of the jury would be “to listen to 
5 

the stories and that.” Defendant also testified that, if he was found guilty, he would probably go 

to prison for the rest of his life. Defendant understood that, if found guilty, he would have to 

register at the police station as a sex offender. 

¶ 18 Following closing arguments, the circuit court found that defendant’s mental illness did 

not substantially impair his ability to understand the proceedings against him or his ability to 

assist in his own defense. Accordingly, the court ruled that defendant was fit to stand trial and 

ordered the case to remain set for a status hearing on August 12, 2013.

¶ 19 C. Partially Negotiated Guilty Plea and Sentence 

¶ 20 On October 30, 2013, defendant entered a partially negotiated guilty plea, which allowed 

for a sentencing range of no less than 10 and no more than 20 years in prison, followed by an 

indeterminate period of mandatory supervised release (MSR) from 3 years to natural life (see 

730 ILCS 5/5-8-1(d)(4) (West 2012)). Additionally, in exchange for defendant’s guilty plea, the 

State agreed to dismiss several other pending charges, including predatory criminal sexual 

assault of a child (13-CF-1562) and attempt predatory criminal sexual assault of a child (13-CF1563). At the subsequent sentencing hearing held on January 15, 2014, the circuit court 

sentenced defendant to 20 years in prison, the maximum permitted under the plea agreement.

¶ 21 D. Postconviction Matters

¶ 22 Defendant subsequently filed both a timely motion to withdraw his guilty plea and vacate 

sentence and a motion to reconsider sentence. Defendant claimed that he was innocent and that 

he did not knowingly, intelligently, and voluntarily waive his right to a trial. Defendant also 

alleged that his 20-year sentence was excessive.

¶ 23 On April 2, 2014, the circuit court denied both motions. Regarding the motion to 

withdraw guilty plea and vacate sentence, the court stated that defendant had received the proper 
6 

admonitions and understood, “to a sufficient extent to meet the requirements of law,” the 

proceedings and the consequences of his plea. Moreover, after observing that defendant had 

entered into a negotiated plea agreement, the court denied the motion to reconsider sentence. 

Shortly thereafter, defendant filed a notice of appeal with this court, and an appellate defender 

was appointed to represent defendant on appeal.

¶ 24 On September 17, 2015, the appellate defender sent a letter to defendant summarizing a 

September 14, 2015, in-person meeting. In the letter, the appellate defender informed defendant 

that his trial counsel filed an incomplete Rule 604(d) certificate and, given the likelihood of 

success on appeal, the appellate defender advised defendant of possible outcomes on a remand to 

the circuit court. The letter from the appellate defender, in pertinent part, reads as follows: 

“The [circuit] court might decide to let you take back your guilty plea, or it might 

not. If the court did let you withdraw the guilty plea, the State could take you to trial on 

the predatory criminal sexual assault charge in 12-CF-1181. The State could also charge 

you with those two 2013 cases that were dismissed. If you were found guilty on the two 

predatory criminal sexual assault charges, you could get a sentence of natural life. I 

explained that this meant that you would never get out of prison. 

I also explained that you could dismiss your appeal and choose to keep the 20 

year sentence you have. Once your appeal is dismissed, you are giving up the right to 

challenge your guilty plea based on any errors in the record. This means that after your 

direct appeal is dismissed you cannot file a direct appeal again. However, you may still 

be able to file a post-conviction petition to raise issues that are not in the record if you 

wish to do so. 
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After we talked, you decided that you wanted to keep the 20 year sentence you 

have because it allows you to get out in 2029. Because of this, I will be filing the motion 

to dismiss your appeal this week.” 

¶ 25 On September 18, 2015, the appellate defender filed a motion to dismiss the appeal. In 

support of the motion to dismiss, the appellate defender attached defendant’s affidavit, titled 

“STATEMENT OF INTENT TO HAVE APPEAL DISMISSED.” In his affidavit, defendant 

averred that he had made the decision to dismiss the appeal after consulting with the appellate 

defender concerning the “relative merits of the appeal.” Defendant further averred that his 

decision to dismiss the appeal was voluntary, and that he understood he would “forever lose [his] 

right to an appeal of [his] guilty plea.” This court subsequently dismissed the appeal (see People 

v. Martin, No. 5-14-0174 (Sept. 23, 2015) (unpublished dispositional order)). 

¶ 26 On October 25, 2017, more than two years after the voluntary dismissal of his appeal, 

defendant filed in the circuit court a pro se motion to proceed as a poor person and for the 

appointment of counsel. The following day, defendant filed a handwritten, pro se petition for 

postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 

et seq. (West 2016)). In the petition, defendant alleged, inter alia, both ineffective assistance of 

defense counsel and of appellate counsel but did not address the timeliness issue or provide 

reasons for the more than two-year delay in filing the petition. 

¶ 27 Concerning his claim of ineffective assistance of defense counsel, defendant asserted that 

defense counsel did not follow proper procedure by failing to consult with him regarding both 

his motion to withdraw guilty plea and vacate sentence and his motion to reconsider sentence. 

Thus, defendant maintained that defense counsel’s Rule 604(d) certificate filed on April 2, 2014, 

was “insufficient.” Defendant also alleged that defense counsel was ineffective due to defense 
8 

counsel’s failure “to call material alibi witnesses and to attack [the] credibility of [the] State[’]s 

witness” and to file a motion to dismiss for “Illegal Felony Charging Instrument of Complaint.” 

¶ 28 Concerning his claim of ineffective assistance of appellate counsel, defendant alleged that 

appellate counsel was ineffective for failing to raise several “trial issues” related to his claim of 

ineffective assistance of defense counsel. In addition, defendant alleged that appellate counsel 

was ineffective because he failed to raise: “Functioning Mental Health Level Basis For Judgment 

Of Acquittal”; “Cumulative And Multiple Factor Indication For Unfitness Requirement”; 

“[I]nordinate [D]elay on Direct Appeal”; “Coercion,” on the decision to dismiss the appeal; and 

a “Violation of The Americans With Disabilities Act on Direct Appeal.” In support of his claims 

of error, defendant attached an “Appendix” comprised of 80 pages of exhibits. 

¶ 29 On February 9, 2018, because the circuit court had not entered an order on the merits 

within 90 days of the filing of defendant’s pro se petition for postconviction relief, the court 

entered an order that advanced the petition to a second-stage hearing pursuant to subsection (b) 

of section 122-2.1 of the Act (725 ILCS 5/122-2.1(b) (West 2016)). The court also appointed 

postconviction counsel to represent defendant and gave postconviction counsel 30 days to file an 

amended petition, which was later extended to June 15, 2018. 

¶ 30 On May 11, 2018, prior to the June 15, 2018, deadline, the circuit court entered an order 

granting the State leave to file a motion to dismiss defendant’s pro se postconviction petition. 

Shortly thereafter, the State filed its motion to dismiss, which listed the procedural history of the 

case, defendant’s burden of proof with respect to the pro se postconviction petition, and the 

State’s arguments in support of its motion to dismiss. In particular, the State asserted that 

defendant’s pro se postconviction petition was untimely, his claims relating to his fitness were 

barred by waiver and res judicata, and all other claims were refuted by the record. 
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¶ 31 On June 28, 2018, postconviction counsel filed a response to the State’s motion to 

dismiss. In the response, postconviction counsel did not address any of the State’s substantive 

arguments, but, instead, denied each of the paragraphs pertaining to the procedural history of the 

case. 

¶ 32 On August 1, 2018, the circuit court held a hearing on the State’s motion to dismiss. The 

State articulated that it would stand on the arguments and caselaw provided in the motion to 

dismiss. However, the State reiterated its arguments that defendant’s pro se postconviction 

petition was barred by the three-year limitation period provided by the Act and, alternatively, 

that defendant’s claims were barred by waiver and res judicata. In response, postconviction 

counsel stated that the last time defendant was in court, counsel looked at defendant’s pro se

petition, and “we put on the record that it was difficult to amend it because there really weren’t 

any legal issues that I could see that would help [defendant].” Postconviction counsel further 

stated that he believed “[the State’s] arguments are well-taken. It’s hard to get around the statute 

of limitations and the timing issue without even having to go into the waiver issues.” 

Postconviction counsel explained that the timing issue was one of the reasons he did not file, or 

request leave to file, an amended petition because he “did not feel that it would be productive 

and would not help [defendant] in any way.” 

¶ 33 The circuit court, indicating that it had reviewed the file and the transcripts of the guilty 

plea proceedings many times, stated the following: 

“THE COURT: I’m a firm believer that on these post-conviction matters, if 

you’re alerted to a substantial denial of somebody’s constitutional rights, that the Court 

needs to find a way to make sure that there isn’t some injustice that’s been imposed that 

is not going to be corrected due to some technicality or a failure of timeliness.

I think in reviewing the record, I’m confident that the fundamental issues that 

[defendant] has raised, concerns about the adequacy of counsel at trial, the record really 

does not show ineffective assistance of counsel. The record does show that the defendant 
10 

has significant hearing loss. It also shows that the defendant has some diminished 

cognitive abilities that, if nothing else, would induce us to consider that in determining 

whether or not he acted in a timely—he acted in a timely manner.

 He was evaluated by Dr. Cuneo, he was found fit to stand trial. 

I did read the plea agreement I mean, his plea in this case several times. I read the 

transcript. I know that he’s functioning at a mild mentally retarded range of intelligence, 

that he was diagnosed with an anxiety disorder. And while those things you would 

consider, they’re not—they didn’t rise to the level that he did not appreciate what it was 

he was doing. 

I looked at the way the trial judge handled this, and I thought that the trial judge 

adequately addressed those issues in the way the trial judge handled the taking of the plea 

and imposing the sentence.” 

The court then found that the State’s motion to dismiss was appropriate and dismissed 

defendant’s pro se petition for postconviction relief. 

¶ 34 The next day, postconviction counsel filed a Rule 651(c) certificate, which stated:

“1. That on or about February 9, 2018, I was appointed to represent the abovenamed Defendant in his Pro Se Petition for Post-Conviction Relief. 

2. That I have examined the entire record of the proceedings of the plea of guilty 

and sentencing. 

3. That I consulted with Defendant by correspondence to him dated February 15, 

2018, May 15, 2018 and June 18, 2018 to ascertain his contentions of deprivation of 

constitutional rights. 

 4. That I met with Defendant personally on May 11, 2018 to ascertain his 

contentions of deprivation of constitutional rights. 

5. In reviewing the entire file[,] the undersigned determined that there were no 

legal issues to be raised by an amended petition. 
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6. The primary problem was that the statue [sic] of limitations had run on the 

filing of a postconviction petition. 

 7. That this certificate is in compliance with Supreme Court Rule 651(c).” 

This appeal followed. 

¶ 35 II. Analysis

¶ 36 On appeal, defendant argues that he did not receive reasonable assistance from 

postconviction counsel at the second-stage proceedings. Defendant primarily contends that 

postconviction counsel essentially conceded the State’s motion to dismiss when postconviction 

counsel stated that defendant’s pro se claims were untimely and without merit. On that premise, 

defendant asserts that postconviction counsel should have either amended defendant’s pro se

petition to add necessary factual assertions to adequately present the claims of error or 

withdrawn from the case, thereby allowing defendant to advance the claims on his own or 

through new counsel. Defendant urges this court to reverse the circuit court’s dismissal order and 

remand the matter with directions that the court appoint a new postconviction counsel to properly 

amend and support defendant’s pro se petition for postconviction relief or fulfill the obligation to 

withdraw. 

¶ 37 The Act provides a remedy for a criminal defendant who can demonstrate 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.” 725 ILCS 

5/122-1(a)(1) (West 2016). The procedure for adjudicating claims under the Act consists of up to 

three stages. Id. § 122-1 et seq.; People v. Bailey, 2017 IL 121450, ¶ 18. 

¶ 38 At the first stage, the circuit court has 90 days to independently review the petition and 

determine whether the petition states the gist of a constitutional claim or should be dismissed as 
12 

frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016); Bailey, 2017 IL 

121450, ¶ 18. Where, as here, an order is not entered within 90 days, the petition advances to the 

second stage by default. People v. Perez, 2014 IL 115927, ¶ 29. 

¶ 39 At the second stage, an indigent defendant is appointed counsel to represent the defendant 

and to file any amendments to the petition deemed necessary. 725 ILCS 5/122-4 (West 2016); 

Bailey, 2017 IL 121450, ¶ 18. The circuit court then determines whether defendant has made a 

substantial showing of a constitutional violation, and if a substantial showing is made, the 

petition proceeds to the third stage for an evidentiary hearing; conversely, where no substantial 

showing is made, the petition is dismissed. People v. Edwards, 197 Ill. 2d 239, 246 (2001). Our 

supreme court has determined that an indigent defendant is entitled by statute to a reasonable 

level of assistance of counsel at the second stage, a standard that is significantly lower than the 

level of assistance constitutionally required at trial. People v. Perkins, 229 Ill. 2d 34, 42 (2007); 

People v. Custer, 2019 IL 123339, ¶ 30. 

¶ 40 Furthermore, at the second stage, the State may file a motion to dismiss the defendant’s 

petition as being untimely. Perkins, 229 Ill. 2d at 43. Section 122-1(c) provides the following 

applicable time restrictions:

“When a defendant has a sentence other than death, no proceedings under this 

Article shall be commenced more than 6 months after the conclusion of proceedings in 

the United States Supreme Court, unless the petitioner alleges facts showing that the 

delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, 

no proceedings under this Article shall be commenced more than 6 months from the date 

for filing a certiorari petition, unless the petitioner alleges facts showing that the delay 

was not due to his or her culpable negligence. If a defendant does not file a direct appeal, 
13 

the post-conviction petition shall be filed no later than 3 years from the date of 

conviction, unless the petitioner alleges facts showing that the delay was not due to his or 

her culpable negligence.

This limitation does not apply to a petition advancing a claim of actual 

innocence.” 725 ILCS 5/122-1(c) (West 2016). 

¶ 41 A petition which is untimely will not be dismissed if the petitioner alleges facts showing 

the delay was not due to his or her culpable negligence. Id. The term “culpably negligent” means 

“something greater than ordinary negligence and is akin to recklessness.” People v. Boclair, 202 

Ill. 2d 89, 108 (2002). 

¶ 42 When a postconviction petition is dismissed at the second stage, appellate review is 

de novo. People v. Lander, 215 Ill. 2d 577, 588 (2005). The question of whether postconviction 

counsel provided the reasonable level of assistance contemplated by the Act is reviewed de novo. 

People v. Wallace, 2018 IL App (5th) 140385, ¶ 31. The reviewing court may affirm the circuit 

court’s dismissal of a postconviction petition on any basis shown in the record. People v. Davis, 

382 Ill. App. 3d 701, 706 (2008).

¶ 43 In the instant case, defendant’s petition advanced to the second stage of the proceedings 

by default because the circuit court did not dismiss it as frivolous or patently without merit 

within the 90-day period. The State subsequently filed a motion to dismiss alleging, inter alia, 

that defendant’s pro se petition was untimely and that defendant had not alleged facts showing 

the delay was not due to his culpable negligence. Although defendant concedes on appeal that his 

pro se petition did not provide any factual assertions to excuse the late filing, he does not provide 

reasons for the untimely filing of the petition nor address the merits of the claims in his brief. 

Furthermore, defendant does not address the State’s additional arguments of waiver and 
14 

res judicata raised in the motion to dismiss. Because defendant does not argue the merits of his 

postconviction claims, he has forfeited any argument that they were meritorious. People v. Cotto, 

2016 IL 119006, ¶ 49; People v. Bass, 2018 IL App (1st) 152650, ¶ 10; Ill. S. Ct. R. 341(h)(7) 

(eff. May 25, 2018) (points not raised on appeal are forfeited). Consequently, defendant’s 

success on appeal depends solely on his ability to rebut the presumption that postconviction 

counsel rendered reasonable assistance in compliance with Rule 651(c).

¶ 44 To that end, defendant specifically asserts that postconviction counsel (1) failed to amend 

defendant’s pro se petition to add necessary factual allegations, both in an attempt to excuse the 

late filing and to show prejudice in relation to his claim of ineffective assistance of defense 

counsel concerning defendant’s guilty plea (i.e., “absent defense counsel’s errors, defendant 

would not have plead guilty”), and (2) failed to file a proper response to the State’s motion to 

dismiss, rather than a “bare-bones” response, which lacked any factual assertions regarding the 

procedural bars, such as untimeliness, and the other issues raised by the State. Defendant asserts 

that these failures denied him reasonable assistance of counsel in the postconviction proceedings. 

We disagree.

¶ 45 To ensure that a defendant who petitions the circuit court is provided reasonable 

assistance, Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) imposes certain requirements 

upon postconviction counsel. Rule 651(c) mandates that the record show that postconviction 

counsel 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 
15 

are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 

651(c) (eff. July 1, 2017). 

“Fulfillment of the third obligation under Rule 651(c) does not require postconviction counsel to 

advance frivolous or spurious claims on defendant’s behalf. If amendments to a pro se

postconviction petition would only further a frivolous or patently nonmeritorious claim, they are 

not ‘necessary’ within the meaning of the rule.” People v. Greer, 212 Ill. 2d 192, 205 (2004). 

The filing of a Rule 651(c) certificate creates a rebuttable presumption that postconviction 

counsel provided reasonable assistance. People v. Profit, 2012 IL App (1st) 101307, ¶ 19. “A 

defendant has the burden of overcoming that presumption by demonstrating that counsel failed to 

substantially comply with the duties set out in Rule 651(c).” People v. Rivera, 2016 IL App (1st) 

132573, ¶ 36. 

¶ 46 Following the circuit court’s dismissal of defendant’s pro se postconviction petition, 

postconviction counsel filed a Rule 651(c) certificate, which the State contends was facially valid 

and defendant does not challenge. We also agree that postconviction counsel’s Rule 651(c) 

certificate is facially valid, therefore, a presumption of reasonable assistance exists in the present 

case (see Profit, 2012 IL App (1st) 101307, ¶ 19). The Rule 651(c) certificate filed in this case 

reflects that postconviction counsel examined the entire record of the proceedings of the plea of 

guilty and sentencing, consulted with defendant, both in person and by correspondence, to 

ascertain his contentions of deprivation of constitutional rights. In addition, concerning the third 

requirement, postconviction counsel listed his reasons for not amending defendant’s pro se

petition. Specifically, postconviction counsel determined that amending the pro se petition was 

not necessary because “there were no legal issues to be raised by an amended petition” and that 

the petition was barred by the statute of limitations. 
16 

¶ 47 We cannot say that the presumption of reasonable assistance is rebutted based on 

postconviction counsel’s decision to stand on the defendant’s pro se petition. The record reflects 

that defendant voluntarily dismissed his appeal because he wanted to avoid the possibility of a 

natural life sentence after a trial. In fact, according to defendant’s own affidavit, defendant 

decided to dismiss the appeal and was aware that he would lose all rights to a subsequent appeal. 

Defendant made this decision even though his appellate counsel suggested there was a potential 

likelihood of having his case remanded to the circuit court for further proceedings regarding his 

ability to withdraw his guilty plea. Moreover, even though appellate counsel had informed 

defendant in person and by letter, dated September 17, 2015, that he could file a postconviction 

petition to raise issues not in the record, defendant waited more than two years after the dismissal 

of his appeal to file his petition, a time frame of more than four years after the judgment of 

conviction. Notably, postconviction counsel also explained during the hearing on the State’s 

motion to dismiss that he had reviewed the entire record and consulted with defendant, and he 

“did not feel that it would be productive and would not help [defendant] in any way” to amend 

the petition. Under these circumstances, we reject defendant’s assertion that postconviction 

counsel’s failure to amend the pro se petition was due to some deficiency, rather than a factual

inability. Contrary to defendant’s assertions we find no evidence in the record to support such 

contention. 

¶ 48 Again, Rule 651(c) does not require counsel to advance frivolous or spurious claims on 

defendant’s behalf. Greer, 212 Ill. 2d at 205. In our view, the record does not contradict 

postconviction counsel’s determination that there were no legal issues to be raised by amending 

the pro se petition. To the contrary, the record affirmatively shows that defendant was afforded 
17 

the reasonable level of assistance provided under the Act. Defendant has, therefore, failed to 

rebut the presumption of reasonable assistance created by the filing of a Rule 651(c) certificate. 

¶ 49 Lastly, we note that defendant also relied significantly on this court’s ruling in People v. 

Wallace, 2018 IL App (5th) 140385, in support of the premise that postconviction counsel should 

have either amended defendant’s pro se petition to add necessary factual assertions to adequately 

present the claims of error or withdrawn from the case. Defendant argues that our decision in 

Wallace is analogous to the present case. We disagree. 

¶ 50 In Wallace, the defendant filed a pro se postconviction petition alleging, inter alia, that 

the circuit court’s questioning during the plea proceeding failed to show that he actually 

understood the nature of the rights he was waiving or the consequences for doing so and that 

defense counsel had threatened the defendant by telling him that if he did not accept the plea 

agreement, “ ‘his charges would be turned over to the federal authorities.’ ” Id. ¶ 18. The 

defendant did not explicitly raise an ineffective assistance of counsel claim but merely 

referenced that his right to effective assistance of counsel under the sixth amendment was one of 

the constitutional provisions involved. Id. In Wallace, postconviction counsel did not file a 

certificate of compliance with Rule 651 and thus no presumption of compliance existed. Id. ¶ 32.

¶ 51 The vital question presented in Wallace was whether there was an explicit showing in the 

record that postconviction counsel provided reasonable assistance as required by the Act. Id. 

¶ 31. We found postconviction counsel failed to comply with two of the three requirements under 

Rule 651(c). Id. ¶ 33. We found that the record did not explicitly show that postconviction 

counsel reviewed pertinent portions of the trial record, and it was necessary for postconviction 

counsel to amend the petition to allege ineffective assistance of postplea counsel and appellate 

counsel in order to allow the defendant’s petition to survive the State’s motion to dismiss. Id. 
18 

¶¶ 34-35. In light of this, we found postconviction counsel’s failure to make such amendment fell 

below reasonable level of assistance. Id. ¶ 44. 

¶ 52 Conversely, in the present case, we have previously determined that the record does not 

contradict postconviction counsel’s compliance with Rule 651. In that regard, we specifically 

rejected defendant’s assertion that postconviction counsel’s failure to amend the pro se petition 

was due to some deficiency, rather than a factual inability. We noted that postconviction counsel 

expressed that there were no legal issues to be raised by amending the pro se petition. Thus, 

defendant has failed to rebut the presumption of reasonable assistance created by the filing of a 

Rule 651(c) certificate and, unlike Wallace, defendant was afforded the reasonable level of 

assistance provided under the Act.

¶ 53 Defendant alternatively contends that postconviction counsel, after determining that 

defendant’s claims lacked merit, had an ethical duty to withdraw from the case pursuant to 

People v. Greer, 212 Ill. 2d 192 (2004), People v. Shortridge, 2012 IL App (4th) 100663, and 

Wallace, 2018 IL App (5th) 140385. Consequently, defendant argues that he was denied 

reasonable assistance when postconviction counsel failed to withdraw. We view defendant’s 

reliance on Greer, Shortridge, and Wallace misplaced.

¶ 54 In Greer, 212 Ill. 2d at 195-96, the defendant, whose postconviction counsel was allowed 

to withdraw, contended on appeal that there was no authority for withdrawal under the Act and 

that he was deprived of his right to counsel by the withdrawal. The Illinois Supreme Court held 

that a defense counsel was under no obligation to continue representation after counsel 

determined that defendant’s petition was frivolous and patently without merit. Id. at 209. The 

Greer court also concluded that ethical obligations prohibited counsel’s continued representation 

if the claims were viewed by counsel as frivolous. Id. at 205; see also Ill. S. Ct. R. 137 (eff. Jan. 
19 

1, 2018) (an attorney’s signature on a pleading certifies that, after a reasonable inquiry, the 

attorney believes that the pleading is grounded in fact and warranted by existing law or a goodfaith argument for the extension, modification, or reversal of existing law). Thus, in that event, 

the Illinois Supreme Court found it permissible under the Act for defense counsel to withdraw. 

Greer, 212 Ill. 2d at 209. 

¶ 55 Defendant’s reliance on Greer is misplaced. Although Greer authorizes withdrawal, 

where a defendant’s petition cannot be amended to state a meritorious claim, it did not create a 

requirement that counsel must withdraw instead of complying with Rule 651(c) and standing on 

the pro se petition. See People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008) (when counsel finds 

defendant’s postconviction claims lack merit, counsel has two options: (1) stand on the 

allegations in the pro se petition and inform the court of the reason the petition was not amended; 

or (2) withdraw as counsel; under both options, the claims raised in the defendant’s pro se

petition remain and proceed according to the Act). Here, unlike the defendant’s counsel in Greer, 

postconviction counsel elected to continue under the first option instead of withdrawing from the 

case. Consistent with his Rule 651(c) certificate, postconviction counsel explained to the circuit 

court that the primary problem with defendant’s pro se petition was that the petition was barred 

by the statute of limitations and amending the petition would neither be productive nor help 

defendant. 

¶ 56 We also find the facts of Shortridge distinguishable. In Shortridge, the Fourth District 

found it impermissible for the defendant’s counsel to confess the State’s motion to dismiss the 

postconviction petition. 2012 IL App (4th) 100663, ¶ 16. The Shortridge court, citing Greer, 212 

Ill. 2d at 209, stated that: “If counsel, in fact, found the allegations ‘nonmeritorious,’ even with 

any necessary amendments, then he should have moved to withdraw as counsel, not confess the 
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State’s motion to dismiss.” (Emphasis added.) Shortridge, 2012 IL App (4th) 100663, ¶ 14. The 

Shortridge court explained that its decision to reverse and remand for further proceedings “rests 

solely on the conduct of postconviction counsel.” Id. ¶ 15. Despite a valid Rule 651(c) 

certificate, the Shortridge court stated that it was “virtually impossible *** to determine the 

merit of defendant’s claims where postconviction counsel essentially did nothing to shape the 

claims into the appropriate legal form.” Id. ¶ 16.

¶ 57 Thus, in Shortridge, postconviction counsel neither stood on the pro se petition nor 

moved to withdraw but, instead, pursued a third, impermissible alternative—confessing the 

State’s motion to dismiss. Id. ¶ 6. In other words, in Shortridge, the circuit court entered an 

agreed to order of dismissal. Here, unlike Shortridge, postconviction counsel chose the first 

option, explaining to the court that the primary problem was that the petition was barred by the 

statute of limitations and amending the petition would neither be productive nor help defendant.

¶ 58 Next, contrary to defendant’s argument, we are not persuaded that Wallace, 2018 IL App 

(5th) 140385, is controlling on the issue of whether postconviction counsel was required to 

withdraw. As explained above, we first note that, like the present case, we also found in Wallace

what occurred in Shortridge to be significantly different. Id. ¶ 49. While we did observe in 

Wallace that the concerns underlying the Illinois Supreme Court’s holding in People v. Kuehner, 

2015 IL 117695 (when postconviction counsel discovers that the petition is frivolous, counsel 

bears the burden of demonstrating, with respect to each of the defendant’s pro se claims, why the 

trial court’s initial assessment was incorrect) were implicated, those same concerns do not exist 

in the present case. See Wallace, 2018 IL App (5th) 140385, ¶¶ 52-53. In Wallace, we expressed 

the following:
21 

“On remand, the court should appoint a new attorney to represent the defendant. If that 

attorney investigates the defendant’s claims and discovers that they are frivolous and 

patently without merit despite the court's initial finding to the contrary, we believe 

counsel should file a motion to withdraw that comports with the requirements 

of Kuehner. This course of action is necessary because it would enable the postconviction 

court to reconsider its previous ruling, as the Kuehner court intended. See [Kuehner, 2015 

IL 117695, ¶ 21] (noting that a motion to withdraw under these circumstances is similar 

to a motion to reconsider).” Wallace, 2018 IL App (5th) 140385, ¶ 53. 

¶ 59 Unlike Wallace and Kuehner, where the postconviction petition advanced to the second 

stage after the circuit court expressly found “that the petition was neither frivolous nor patently 

without merit” (id. ¶ 52), here, the petition advanced to the second stage by default. Thus, unlike 

in Wallace and Kuehner, a motion to withdraw with explanation of why the petition lacks merit 

is unnecessary as there is no ruling to be reconsidered.

¶ 60 Lastly, we reiterate that the Fourth District observed that counsel had two options when 

faced with meritless claims: “stand on the allegations in the pro se petition and inform the court 

of the reason the petition was not amended” or withdraw as counsel. Pace, 386 Ill. App. 3d at 

1062. Here, consistent with his Rule 651(c) certificate, postconviction counsel explained to the 

circuit court that the primary problem with defendant’s pro se petition was that the petition was 

barred by the statute of limitations and amending the petition would neither be productive nor 

help defendant. Accordingly, postconviction counsel’s election to continue under the first option, 

instead of withdrawing from the case, does not support defendant’s claim of unreasonable 

assistance. 
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¶ 61 III. Conclusion

¶ 62 Based on the foregoing, we conclude that defendant has not rebutted the presumption that 

postconviction counsel substantially complied with the duties required in Rule 651(c) and 

provided the reasonable assistance contemplated by the Act. For these reasons, we affirm the 

judgment of the circuit court of St. Clair County dismissing defendant’s pro se postconviction 

petition at the second stage of the postconviction proceedings.

¶ 63 Affirmed.